GOVT. OF NCT OF DELHI versus UNION OF INDIA

[2019] 3 S.C.R.

GOVT. OF NCT OF DELHI

UNION OF INDIA

(Civil Appeal No. 2357 of 2017)

BFEBRUARY 14, 2019

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Constitution of India – Seventh Schedule, List II, Entry 41 –Exclusion of ‘Services’ relatable to Entry 41 of List II of the SeventhSchedule from the legislative and executive domain of the NCTD,Cby Notification dated May 21, 2015 – Validity of, challenged – Thesaid Notification in respect of ‘services’ mentions about UnionTerritory cadre consisting of Indian Administrative Service andIndian Police Service Personnel – The notification also refers toDANICS and DANIPS – All these services are administered byDCentral Government through Ministry of Home Affairs – Insofar asallocation of personnel belonging to these services is concerned, itis the Central Government through Ministry of Home Affairs whichhas to pass the necessary orders – Similarly, Central Government isempowered to transfer such personnel from one Union Territory toother – Claim of GNCTD is that it has control over these personnelEafter they are allocated to NCTD – However, claim of Union ofIndia is that it comes within the discretionary powers of theLieutenant Governor (LG) as the subject matter is not covered byEntry 41 of List II – Held: (Per A.K. Sikri, J.) – Entry 41 of List IIdeals with ‘State Public Services’ and ‘State Public ServiceFCommission’ – It is undisputed that State Public Service Commissiondoes not exist in NCTD – When dealing with All India Services andDANICS Services etc., it is also doubtful to mention it as State PublicService – GNCTD has endeavoured to assume the executive powerin respect of ‘services’ by relying upon Entry 41 of List II, whichmay be doubtful – That situation may give discretionary powers toGthe LG – On the other hand, it also cannot be said that once themanpower is allocated to Union Territory of Delhi, the GNCTDshould not have any power to deal with such employees – In such ascenario, and to avoid any conflict of exercise of powers betweenthe LG on the one hand and the Council of Ministers with ChiefHMinister as Head on the other hand, for the smooth functioning ofthe system, just and fair mechanism to be carved out – The transfersand postings of Secretaries, HODs and other officers in the scaleof Joint Secretary to the Government of India and above can bedone by the LG and the file submitted to him directly – For otherlevels, including DANICS officers, the files can be routed throughthe Chief Minister to the LG – In case of difference of opinionbetween the LG and the Chief Minister, the view of the LG wouldprevail and the Ministry of Home Affairs would issue suitablenotification in that regard – However, for Grade IV, III, II and IDASS officials, there is an existing delegation of powers where forGrades IV and III, all transfers and postings are done by theSecretary (Services); for Grades II and I, the transfers and postingsare done by the Chief Secretary – For greater transparency, CivilServices Board can be formed which can be headed by the Secretary(Services) for Grades IV and III officials; by the Chief Secretaryfor Grades II and I level officers – The Board can decide on thetransfer and postings of these DASS cadre officers – Similar Boardcan also be formed for DANICS officers – In the interest of goodgovernance and smooth Governmental function, efforts should bemade by both the Chief Minister as well as the LG for harmonious–working relation – (Per Ashok Bhushan, J.)(Partly Dissenting)Entry 41 of List II of the Seventh Schedule is not available to theLegislative Assembly of GNCTD – Having held so, there is nooccasion to exercise any Executive power with regard to “Services”by the GNCTD, since the Executive power of the GNCTD as perArt.239AA(4) extend in relation to matters with respect to whichLegislative Assembly has power to make laws – With regard to“Services” GNCTD can exercise only those Executive powers, whichcan be exercised by it under any law framed by the Parliament or itmay exercise those Executive powers, which have been delegatedto it – Constitution of India – Art.239AA – Indian AdministrativeServices (Cadre) Rules, 1954 – r.2(c).

–Constitution of India Seventh Schedule, List II, Entry 2 –Whether the exclusion of the jurisdiction of the Anti-CorruptionBranch (ACB) of the NCTD to investigate offences committed underthe Prevention of Corruption Act by the officials of the CentralGovernment and limiting the jurisdiction of the ACB to the employees

Aof the GNCTD alone is legal – Held: ACB is not empowered toinvestigate into the offences of Central Government employees underthe Prevention of Corruption Act – Such investigation is carriedout by CBI – Therefore, it obviates the duality and conflict ofjurisdiction as well – As per Notifications dated 23.7.2014 and21.5.2015, the jurisdiction of ACB is limited to the employees ofBGNCTD only – Code of Criminal Procedure, 1973 – s.2(s) –Prevention of Corruption Act, 1947.

–Constitution of India Seventh Schedule, List II, Entry 2 –Term ‘police’ occurring therein – Meaning of – Held: It is settledprinciple that legislative entries are to be interpreted in broadCand liberal manner consistent with imputing to them the widestamplitude and as including all ancillary and subsidiary matters –The scope of the term ‘Police’ as occurring in Entry 2 of List IIcannot, therefore, be artificially restricted or limited to onlyconstitution of the Police force, but would take within its fold theDlegislative (and, therefore, executive) power to exercise supervisionand control over the functioning of the Police so constituted,including by way of issuance of executive directions delineatingthe powers, functions and jurisdiction of different wings/sectionsof the Police – Entry 2 List II would also include the determination

as to the nature and scope of investigations to be done by the PoliceE– Therefore, while establishing the ACB as Police Station, it wouldbe permissible to circumscribe and limit the investigation sphere ofthe ACB.

–Constitution of India Seventh Schedule, List II, Entry 1 –Notification dated 23.7.2014 and 21.5.2015 – By these Notifications,Fthe jurisdiction of ACB was limited to the employees of GNCTD –Validity of these notifications challenged on the ground that s.2(s)empowers the State Government to notify police station and theimpugned notification was issued by the Central Government andpost 69[th] Amendment, the Central Government is not the StateGGovernment for exercising power under s.2(s) – Held: No doubt,s.2(s) of the Cr.P.C. contemplates establishment of the police stationby the State Government – However, the Cr.P.C. also lays down theprocedure for making arrest, conducting investigation and submittingfinal reports – It does not contain any provision which prescribeswhat offences would be investigated by which police force – TheseH

provisions do not provide how parallel jurisdiction of two policestations is to be demarcated – In fact, parallel jurisdiction toinvestigate is not contemplated by Cr.P.C. as that would result inchaos and anarchy and would frustrate the very purpose ofinvestigation – Therefore, the Government which has competenceover Entry 2 List II would have power to segregate and demarcatethe jurisdiction to investigate as between two police forces – Thus,the impugned notifications are valid – This conclusion becomesinevitable when Cr.P.C. is read with the Delhi Police Act, 1978 andother cognate enactments – Entry 1 of List II, subject matter whereofis ‘public order’, also stands excluded from the purview of GNCTDand is the exclusive domain of the Parliament/ Central Executive –The term ‘public order’ includes cognizance of offences, search,seizure and arrest, followed by registration of reports of offences(FIRs), investigation, prosecution, trial and in the event ofconviction, execution of sentences as well – All these aspects are tobe construed conjointly – Code of Criminal Procedure, 1973 – s.2(s)– Interpretation of Statutes.

Commission of Inquiry Act, 1952 – s.2(a) – Whether theGNCTD is an ‘appropriate Government’ under the Commission ofInquiry Act, 1952 – Held: s.3(8) of the General Clauses (GC) Actdefines Central Government – s.3(60) of the GC Act, on the otherhand, defines State Government – The GC Act also defines‘Government’, ‘State’ and ‘Union Territory’ – No doubt, definitionof State as contained in s.3(58) includes Union Territory – In respectof Union Territory, the State Government would mean the CentralGovernment – The expression ‘State Government’ occurring in s.2(a)of the COI Act which defines ‘Appropriate Government’ would notmean GNCTD, Union Territory – General Clauses Act –ss.3(8) and 3(60).

Electricity Act, 2003 –s.108 – Whether under s.108 of theElectricity Act, 2003 and under s.12 of the Delhi Electricity ReformsAct, 2000, the power to issue directions to the State Commission iswith the GNCTD – Held: Under s.2(5)(b) of the Electricity Act, 2003,Appropriate Government is the State Government having jurisdictionunder this Act in all those cases which do not come within the domainof ‘Central Government’ – Insofar as NCTD is concerned, it hasits own Commission, namely, DERC – DER Act also stipulates powers

Aof Government in Part IV thereof – General powers of theGovernment, inter alia, include giving directions to the DERC inmatters of policy involving public interest, as the Government mayissue from time to time – These powers are akin to the powers givenunder s.108 of the Electricity Act, 2003 – Insofar as DER Act isconcerned, it is an enactment enacted by Legislative Assembly ofBNCTD – It operates within the NCTD – Under this Act, DelhiGovernment has power to issue directions to the DERC in mattersof policies involving public interest – When such powers areconferred specifically to Delhi Government under DER Act, it cannotbe said that insofar as s.108 of the Electricity Act, 2003 is concerned,Cthe expression ‘State Government’ therein would mean the CentralGovernment – Delhi Electricity Reforms Act, 2000 – s.12.

–Stamp Act, 1899 Whether the GNCTD had the power torevise the minimum rates of Agricultural Land (Circle Rates) underthe provisions of Stamp Act, 1899 – GNCTD issued the notificationDdated August 4, 2015 revising the rates of Agricultural Land (CircleRates) under the provisions of Indian Stamp Act, 1899 and DelhiStamp (Prevention of Under-Valuation of Instruments) Rules, 2007– Before issuing this notification, matter was not placed before theLG for his views or concurrence – Held: Notification dated August4, 2015 revising the rates of agricultural land (circle rates) isEtraceable to Entry 63 of List II and not to Entry 18 of List II – Saidnotification is issued under the provisions of 1899 Act and 2007Rules – Circle rates are fixed for the purpose of payment of stampduty – Therefore, they do not pertain to ‘land’ namely rights in orover land, land tenures etc. or transfer of alienation of agriculturalFland etc. – Stamp duty is not duty on instrument but it is in realitya duty on transfer of property – In that sense, the occasion for levyof stamp duty is the document which is executed as distinguishedfrom the transaction which is embodied in the document – However,even when the executive wing of Delhi Government takes decision,the LG is also empowered to form its opinion ‘on any matter’ whichGmay be different from the decision taken by his Ministers – Anymatter does not mean each and ‘every matter’ or ‘every triflingmatter’ but only those rare and exceptional matters where thedifference is so fundamental to the governance of the Union Territorythat it deserved to be escalated to the President – Therefore, the LG

is not expected to differ routinely with the decision of Council ofMinister – At the same time, the proviso recognises that there maybe contingencies where LG and his Ministers may differ – In suchcircumstances, LG is supposed to refer the matter to the Presidentfor decision and act according to the decision given thereon by thePresident – It means that final say, in case of difference betweenLG and Council of Ministers, is that of the President – Such schemeof things clearly contemplates that the Council of Ministers issupposed to convey its decisions to the LG to enable the LG to formhis view thereupon – The decision cannot be implemented withoutreferring the same to the LG in the first instance – More pertinently,the decision here touches upon the governance of the UT –Therefore, views of LG should have been taken before issuingNotification dated August 4, 2015 – Constitution of India – Schedule7 List II Entry 63 – Delhi Stamp (Prevention of Under-Valuation ofInstruments) Rules, 2007 – Notification dated August 4, 2015.–Constitution of India Art.239AA, clause (4) and its proviso– LG, role of – Normally, and generally, the LG is expected to honourthe wisdom of the council of ministers – He is also expected to clearthe files expeditiously and is not supposed to sit over it unduly – Heis under duty to bear in mind expediency and urgency of the subjectmatter of the decisions taken by the GNCTD, where ever situationso demands – That in fact is the facet of good governance –Likewise, the executive is also expected to give due deference to theunique nature of the role assigned to the LG in the Constitutionalscheme – By and large, it demands mutual respect between thetwo organs – Both should realise that they are to serve the peopleof NCTD – Mutual cooperation, thus, becomes essential for theeffective working of the system.

Code of Criminal Procedure, 1973 – s.24 – Power to appointthe Special Public Prosecutor –Whether it is the LG or the GNCTDwhich has the power to appoint the Special Public Prosecutor unders.24, Cr.PC. – Held: Special Public Prosecutor is appointed as perthe provisions of s.24(8) of Cr.P.C. which is to the effect that powerto appoint Special Public Prosecutor is conferred both upon theCentral Government and the State Government – Insofar as NCTDis concerned, the ‘State Government’ means the LG for the purposesof s.24(8) of Cr.P.C. – In respect of Entries 1 and 2 of List III, the

AGNCTD has legislative competence under Art.239AA of theConstitution and that the LG under Art.239AA(4) of the Constitutionshall act on the aid and advice of the Council of Ministers –Constitution of India – Art.239AA.

Disposing of the appeals, the CourtBHELD:

Per A.K Sikri, J.

1: Whether the exclusion of ‘Services’ relatable to Entry41 of List II of the Seventh Schedule from the legislative andCexecutive domain of the NCTD, vide Notification dated May 21,2015, is unconstitutional and illegal?[Para 70][113-G-H]

1.1 It is undisputed that the matter pertains to the‘Services’ which consists of Indian Administrative Service, IndianPolice Service. Likewise, DANICS and DANIPS are commonDservices catering to the requirement of various Union Territoriesincluding NCTD. These are All India Services and the cadre inquestion is Union Territory Cadre which is common to all UnionTerritories and Delhi is one of them. Therefore, the Cadre doesnot pertain to GNCTD itself. This cadre is administered by theCentral Government through Ministry of Home Affairs. InsofarEas allocation of personnel belonging to the said services isconcerned, it is the Central Government through Ministry ofHome Affairs which has to pass the necessary orders. Similarly,Central Government is empowered to transfer such personnelfrom one Union Territory to other. [Para 84][125-F-H; 126-A-B]F1.2 Entry 41 of List II deals with ‘State Public Services’

F1.2 Entry 41 of List II deals with ‘State Public Services’and ‘State Public Service Commission’. State Public ServiceCommission does not exist in NCTD. When dealing with AllIndia Services and DHANICS Services etc., it is also doubtful tomention it as State Public Service. The issue, however, is to seeas to whether it is within the powers of GNCTD to assign suchGofficers to particular departments, once they are allocated to theNCTD by the joint cadre authority. As per Rule 2(c) of IndianAdministrative Services (Cadre) Rules, 1954, State includes aUnion Territory. Rule 7 deals with posting and, inter alia,stipulates that in the case of joint cadre, posting shall be by theHState Government concerned. In the context of Article 312 of

the Constitution, this Court has held in Prem Kumar Jain casethat Union Territories are States for the purpose of the saidArticle. [Paras 86, 87][126-D-G]

Prem Kumar Jain and Others(1976) 3 SCC 743 : [1976]

Suppl. SCR 166 – relied on.

1.3 Similar is the position in respect of DANICS. Rule 11of DANICS Rules, 2003 empowers Administrator of theadministration concerned i.e. Union Territory, to make thesepostings. On the other hand, in the context of NCTD, theAdministrator, namely, LG is supposed to function in this behalfon the aid and advice of the Council of Ministers. Therefore, itbecomes equally doubtful as to whether it falls within thediscretionary powers of the L.G. This leads to very peculiarsituation. The appellant has endeavoured to assume theexecutive power in respect of ‘services’ by relying upon Entry41 of List II, which may be doubtful. That situation may givediscretionary powers to the L.G. On the other hand, it also cannotbe said that once the manpower is allocated to Union Territory ofDelhi, the GNCTD should not have any power to deal with suchemployees. In such scenario, and to avoid any conflict ofexercise of powers between the LG on the one hand (asrepresentative of the Central Government) and the Council ofMinisters with Chief Minister as Head on the other hand, for thesmooth functioning of the system, it is necessary to carve out ajust and fair mechanism. The transfers and postings of Secretaries,HODs and other officers in the scale of Joint Secretary to theGovernment of India and above can be done by the LieutenantGovernor and the file submitted to him directly. For other levels,including DANICS officers, the files can be routed through theChief Minister to Lieutenant Governor. In case of difference ofopinion between the Lieutenant Governor and the Chief Minister,the view of the Lieutenant Governor should prevail and theMinistry of Home Affairs can issue suitable notification in thisregard. However, for Grade IV, III, II and I DASS officials, thereis 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 theChief Secretary. For greater transparency, Civil Services Board

BCDEFG

Acan be formed which can be headed by the Secretary (Services)for Grades IV and III officials; by the Chief Secretary for GradesII and I level officers. [Paras 88-90][126-G-H; 127-A-G]

1.4 Insofar as disciplinary authorities are concerned, thesame are already prescribed as per the CCA (CCS) Rules andthe Rules applicable for different services including IAS &BDANICS. The appointing and disciplinary authority is thePresident of India, as per the powers delegated by the Presidentfrom time to time. Vigilance matters would get covered by theapplicable disciplinary rules in terms of officers competent toinitiate and take vigilance action. In the interest of goodCgovernance and smooth Governmental function, efforts shouldbe made by both the Chief Minister as well as the LG for aharmonious working relation. [Paras 91, 92][128-B-C]

2. Whether the exclusion of the jurisdiction of the Anti-Corruption Branch (ACB) of the NCTD to investigate offencesDcommitted under the Prevention of Corruption Act by the officialsof the Central Government and limiting the jurisdiction of theACB to the employees of the GNCTD alone is legal?[Para92][128-D]

2.1 By Notification dated August 01, 1986, theAdministrator declared ACB of Delhi Administration as PoliceEStation under Section 2(s) of Cr.P.C. for the purpose of certaincorruption related offences under the IPC and the Prevention ofCorruption Act, 1947. As per this notification, the ACB had“jurisdiction all over the whole of Union Territory of Delhi”. Insupersession of this notification by Notification dated NovemberF08, 1993, the GNCTD through the Lieutenant Governor declaredthe ACB of NCTD at Old Secretariat as police station underSection 2(s) of the Cr.P.C. for offences under the Prevention ofCorruption Act, 1988. Thereafter, two Notifications dated July23, 2014 and May 21, 2015 came to be issued by the CentralGovernment as per which the jurisdiction of ACB is limited toGthe employees of GNCTD only. The issue is limited, viz., whetherACB is empowered to register cases in respect of CentralGovernment employees as well? The challenge laid by theappellant to these Notifications is predicated on Entry 2 of ListII. Even after conferment of the status of quasi-State upon DelhiH(which though in constitutional term remains Union Territory),Article 239AA (which gives such status) itself excludes Entry 2

from the domain of NCTD. Thus, in respect of ‘Police’, NCTDdoes not have either legislative or executive power. [Paras 93,106, 107][128-E-G; 138-D-F]

Ukha Kolhe v. State of Maharashtra[1964] 1 SCR 926– referred to.

2.2 It is settled principle that legislative entries are tobe interpreted in broad and liberal manner consistent withimputing to them the widest amplitude and as including all ancillaryand subsidiary matters. The scope of the term ‘Police’ as occurringin Entry 2 of List II cannot, therefore, be artificially restricted orlimited to only constitution of the Police force, but would takewithin its fold the legislative (and, therefore, executive) powerto exercise supervision and control over the functioning of thePolice so constituted, including by way of issuance of executivedirections delineating the powers, functions and jurisdiction ofdifferent wings/sections of the Police. In essence, the impugnednotifications, to the extent they are in the nature of administrativedirections to the Police, are directly relatable to Entry 2 of ListII and as such squarely within the competent of the Governmentof India. Even to the extent the executive power being exercisedqua the Police may correspond to the functions of the Police asset out in the Cr.P.C., the nature of the power would not for thisreason stand altered or relatable to Entry 2 of List III. It is notmetaphorsis from List II to List III. In substance, issuance of anadministrative/executive direction to the Police is an exercise ofexecutive power relatable to the legislative entry pertain to Police.Additionally, various provisions of the Delhi Police Act, 1978 alsodemonstrate that power of control and supervision is investedwith the Administrator. This includes defining the limits and extentof the police station and administrative control over policestations. Moreover, Entry 2 List II would also include thedetermination as to the nature and scope of investigations to bedone by the Police. Therefore, while establishing the ACB as aPolice Station, it would be permissible to circumscribe and limitthe investigation sphere of the ACB. [Paras 108, 109][138-G-H;139-A-E]

2.3 No doubt, Section 2(s) of the Cr.P.C. contemplatesestablishment of the police station by the State Government.

BCDEF

[2019] 3 S.C.R.

AHowever, the Cr.P.C. also lays down the procedure for makingarrest, conducting investigation and submitting final reports. Itdoes not contain any provision which prescribes what offenceswould be investigated by which police force. Section 156 of theCr.P.C. merely provides that officers in the police station willinvestigate those cognizable cases which can be tried by the courtBhaving jurisdiction over the local area concerned would havepower to inquire into or try. These provisions do not providehow parallel jurisdiction of two police stations is to be demarcated.In fact, parallel jurisdiction to investigate is not contemplated byCr.P.C. as that would result in chaos and anarchy and wouldCfrustrate the very purpose of investigation. This leads to holdthat the Government which has competence over Entry 2 List IIwould have power to segregate and demarcate the jurisdiction toinvestigate as between two police forces. Hence the impugnednotifications are valid. This conclusion becomes inevitable when

Cr.P.C. is read with the Delhi Police Act, 1978 and other cognateDenactments. [Para 110][139-F-H; 140-A]

2.4 Entry 1 of List II, subject matter whereof is ‘publicorder’, also stands excluded from the purview of GNCTD and isthe exclusive domain of the Parliament/Central Executive. Theterm ‘public order’ includes cognizance of offences, search,Eseizure and arrest, followed by registration of reports of offences(FIRs), investigation, prosecution, trial and in the event ofconviction, execution of sentences as well. All these aspectshave to be construed conjointly. In fact, there was specificrationale in excluding Entries 1, 2 and 18 of List II from theFjurisdiction of the Government of NCTD. The BalakrishnanCommittee report which recommended exclusion of these Entries(and which part of the Report stands accepted by providing sospecifically in Article 239AA of the Constitution) was of the viewthat duties and responsibilities pertaining to the Police andmaintenance of public order be vested solely in the CentralGGovernment so that ‘there is no confusion or overlap of thejurisdiction in regard to the focal point of control and coordination’.This rationale behind the said exclusion directly flows from theunique position occupied by the NCTD as the nation’s capitaland seat of the Central Government. [Paras 111, 112][140-B-E]

Stainislaus v. State of Madhya Pradesh and Others(1977) 1 SCC 677: [1977] 2 SCR 611; Zameer AhmedLatifur Rehman Sheikh v. State of Maharashtra andOthers(2010) 5 SCC 246 : [2010] 4 SCR 1042 – reliedon.

2.5 Insofar as Notification dated November 08, 1993 isconcerned, whereby ACB of NCTD at Old Secretariat as policestation was created by the Lieutenant Governor, the same hasnot been challenged. No doubt, there was no elected Governmentat that time. Fact remains that this Notification has held the fieldeven thereafter throughout. The impugned Notifications are onlya modification to the aforesaid Notification dated November 08,1993 to limited extent whereby it is clarified that this earlierNotification shall be applicable to ‘the officers and employees ofthat Government only (GNCTD)’. Thus, the only effect is that theACB is not empowered to investigate into the offences of CentralGovernment 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 aswell. Thus, the validity of Notifications dated July 23, 2014 andMay 21, 2015 is upheld. [Paras 114, 115][141-D-F]

3. Whether the GNCTD is an ‘appropriate Government’under the COI Act?[[Para 115] [141-G-H]

Section 3(8) of the General Clauses (GC) Act definesCentral Government. Section 3(60) of the GC Act, on the otherhand, defines State Government. The GC Act also defines‘Government’, ‘State’ and ‘Union Territory’. No doubt, definitionof State as contained in Section 3(58) includes Union Territory.In Section 3(60) of the GC Act, it is specifically provided that inrespect of Union Territory, the State Government would meanthe Central Government. The expression ‘State Government’occurring in Section 2(a) of the COI Act would not mean GNCTD,a Union Territory. [Paras 129-132, 135][147-H; 148-A, D, F; 149-B; 156-D]

Goa Sampling Employees’ Association v. GeneralSuperintendence Co. of India(1985) 1 SCC 206: [1985] 2 SCR 373 – relied on.

AState (NCT of Delhi) v. Navjot Sandhu Alias Afsan Guru(2005) 11 SCC 600 : [2005] 2 Suppl. SCR 79; NabamRebia and Bamang Felix v. Deputy Speaker, ArunachalPradesh Legislative Assembly & Ors.(2016) 8 SCC 1 :[2016] 6 SCR 1 – referred to.

B4. Whether, under Section 108 of the Electricity Act, 2003and under Section 12 of the Delhi Electricity Reforms Act, 2000,the power to issue directions with the State Commission is withthe Government of NCT of Delhi?[Para 136][156-F]

4.1 Electricity Act, 2003 defines ‘Appropriate Government’in Section 2(5). As can be seen from clause (b), AppropriateCGovernment is the State Government having jurisdiction underthis 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 ofAppropriate Government in Section 2(a) of the COI Act. AnotherDimportant and distinguishing aspect is that in respect of Delhi,the DER Act has also been enacted by the State LegislativeAssembly of NCT of Delhi to which President has accorded hisconsent. Under this Act, Delhi Electricity Regulatory Commission(DERC) has been established to exercise the powers conferredon, and to perform the functions assigned to it under the saidEAct. It acts as quasi-judicial body which is clear from Section10 of the DER Act. Section 11 stipulates various functions whichDERC is supposed to perform which include determination oftariff for electricity, wholesale, bulk, grid or retail, as the casemay be; and to determine the tariff payable for the use ofFtransmission facility etc. In essence, such powers are almost thesame powers which are given to Central Electricity RegulatoryCommission (CERC). Thus, insofar as NCTD is concerned, ithas its own Commission, namely, DERC. General powers of theGovernment, inter alia, include giving directions to the DERC inmatters of policy involving public interest, as the GovernmentGmay issue from time to time. These powers are akin to the powersgiven under Section 108 of the Electricity Act. [Paras 143,144][159-B, E-H; 160-A, B]

4.2 DER Act is an enactment enacted by LegislativeAssembly of NCTD. It operates within the NCTD. GovernmentHhere means GNCTD i.e. LG who is supposed to act on the aid

and advice of the Council of Ministers. Under this Act, DelhiGovernment has power to issue directions to the DERC in mattersof policies involving public interest. When such powers areconferred specifically to Delhi Government under DER Act, itcannot be said that insofar as Section 108 of the Electricity Act,2003 is concerned, the expression ‘State Government’ thereinwould mean the Central Government. If such an interpretationis given, there would clearly be conflict of jurisdiction in theNCTD insofar as working of Electricity Act/DER Act areconcerned. As result, the decision of the Delhi High Court onthis aspect is set aside. It was within the jurisdiction of GNCTDto issue notification dated June 12, 2015. [Para 146][160-D-G]

5. Whether the Revenue Department of the GNCTD hadthe power to revise the minimum rates of Agricultural Land (CircleRates) under the provisions of Indian Stamp Act, 1899?[Para146][160-H]

5.1 The GNCTD had issued the notification dated August4, 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 theLG for his views or concurrence. Insofar as Entry 91 of List I isconcerned, subject matter thereof is within the exclusive domainof the Centre/Parliament. It deals with ‘rates of stamp duty inrespect of wills of exchange, cheques, promissory notes, bills oflading, letters of credit, policies of insurance, transfer of shares,debentures, proxies and receipts’. It follows that insofar asinstruments mentioned in Entry 91 of List I are concerned, ratesof stamp duty of such documents are within the exclusive domainof the Union. In respect of other instruments, it is the Statewhich has the necessary jurisdiction to fix the rates of stamp duty.[Paras 147, 157][161-A-B; 165-C-D]

State of Gujarat & Ors. v. Akhil Gujarat Pravasi V.S.

Mahamandal & Ors. (2004) 5 SCC 155 : [2004]

3 SCR 956 – referred to.

5.2 Notification dated August 4, 2015 revising the rates ofagricultural land (circle rates) is traceable to Entry 63 of List IIand not to Entry 18 of List II. Circle rates are fixed for the purposeof payment of stamp duty. Therefore, they do not pertain to ‘land’

[2019] 3 S.C.R.

Anamely rights in or over land, land tenures etc. or transfer ofalienation of agricultural land etc. Stamp duty is not duty oninstrument but it is in reality duty on transfer of property. Inthat sense, the occasion for levy of stamp duty is the documentwhich is executed as distinguished from the transaction which isembodied in the document. Even after accepting the said plea ofBthe GNCTD, the High Court set aside the said notification onthe ground that this decision of the Council of Ministers waswithout seeking views/concurrence of the LG. [Paras 158,159][165-E-H; 166-A]

5.3 It becomes clear from the proviso to clause (4) of ArticleC239AA that even when the executive wing of Delhi Governmenttakes decision, the LG is also empowered to form its opinion‘on any matter’ which may be different from the decision takenby his Ministers. Any matter does not mean each and ‘every

matter’ or ‘every trifling matter’ but only those rare andDexceptional matters where the difference is so fundamental tothe governance of the Union Territory that it deserved to beescalated to the President. Therefore, the LG is not expected todiffer routinely with the decision of Council of Minister. Differenceshould be on cogent and strong reasons. However, this limitationpertains to LG’s exercise of power. At the same time, the provisoErecognises that there may be contingencies where LG and hisMinisters may differ. In such circumstances, LG is supposed torefer the matter to the President for decision and act accordingto the decision given thereon by the President. However,normally, and generally, the LG is expected to honour the wisdomFof the council of ministers. He is also expected to clear the filesexpeditiously and is not supposed to sit over it unduly. Likewise,the executive is also expected to give due deference to the uniquenature of the role assigned to the LG in the Constitutional scheme.By and large, it demands mutual respect between the two organs.Both should realise that they are here to serve the people ofGNCTD. Mutual cooperation, thus, becomes essential for theeffective working of the system. [Para 163][159-B, E-H; 160-A-

6: Whether it is the Lieutenant Governor or the GNCTDwhich has the power to appoint the Special Public ProsecutorHunder Section 24 of the Cr.PC.?[Para 163][172-C]

As per the provisions of Section 24(8) of Cr.P.C., power toappoint Special Public Prosecutor is conferred both upon theCentral Government and the State Government. The High Courthas held that under Section 24(8) of Cr.P.C., State Governmentis empowered to appoint Special Public Prosecutor. However, asNCTD is Union Territory, by virtue of Section 3(60) of the GCAct, it is the Central Government which should be the StateGovernment. Further, since by notification dated March 20, 1974,administrator is empowered to exercise powers and theexpression ‘State Government’ would mean the LG. At the sametime, the High Court has also observed that power to appointPublic Prosecutor is relatable to Entries 1 and 2 of List III inrespect of which GNCTD has legislative competence. Therefore,the LG must appoint Special Public Prosecutor on the aid andadvice of Council of Ministers. As per Sections 3(8), 3(58) and3(60) of the GC Act, the expression ‘State Government’ for thepurposes of Union Territory means the President and includesthe Administrator in terms of Article 239A of the Constitution.Insofar as NCT of Delhi is concerned, the ‘State Government’,means the LG for the purposes of Section 24(8) of Cr.P.C. TheHigh Court rightly held that in respect of these entries, theGovernment of NCT of Delhi has legislative competence underArticle 239AA of the Constitution and that the LG under Article239AA(4) of the Constitution shall act on the aid and advice ofthe Council of Ministers. The LG, while appointing the SpecialPublic Prosecutor, is to act on the aid and advice of the Councilof Ministers. [Paras 164, 166, 170, 172][172-D; 173-E-F;176-C-E]

Samsher Singhvs. State of Punjab(1974) 2 SCC 831 :[1975] 1 SCR 814; NDMC v. State of Punjab(1997) 7

SCC 339 : [1996] 10 Suppl. SCR 472; Rai Sahib RamJawaya Kapur & Ors. v. State of Punjab AIR 1995 SC549;Bir Singh v. Delhi Jal Board and Others(2018)10 SCC 312 – referred to.

Per Ashok Bhushan, J. (Partly dissenting)

1. Article 239AA has been inserted by Constitution 69thAmendment, 1991 with effect from 1st February, 1992.Legislative powers to Legislative Assembly for Union Territory

[2019] 3 S.C.R.

Awas an accepted principle even before 69th Constitution(Amendment) Act. The Government of Union Territories Act,1963 was enacted by Parliament in reference to Article 239Abrought by Constitution 14th Amendment, 1962. Article 239Aempowered the Parliament by law to create body to function asa Legislature for the Union Territory. Such Union TerritoryBconstituted under Government of Union Territories Act, 1963had Legislative power as provided by the Parliament itself underSection 18 of the Act, 1963. Thus, the expression “insofar as anysuch matter is applicable in relation to Union Territories” is aknown concept which was occurring in Section 18 of the Act ofC1963 also. [Paras 26, 27, 28][190-E-F]2. For Reorganisation of the administrative set up of UnionTerritory of Delhi, the Government of India appointed aCommittee, namely, Balakrishnan Committee, which submittedits report on 14.12.1989 to the Home Ministry. The Report of

Dthe Balakrishnan Committee was the basis for enacting 69thConstitution Amendment. In the Statement of Objects andReasons of the 69th Constitution Amendment, the Report ofBalakrishnan Committee was specifically referred to and reliedon. Balakrishnan Committee Report while elaborating the

expression “insofar as any such matters are applicable in relationEto Union Territories” noticed that apart from entries specificallyexcluded, there were other entries, which ipso facto fell outsidethe purview of the Delhi Legislative Assembly. Entry 41 of ListII of VIIth Schedule of the Constitution was specificallyconsidered in the Balakrishnan Committee Report and theFReport opined that the said entry is not applicable to the UnionTerritory. The Report further opined that services in connectionwith the administration of the Union Territory of Delhi will bepart of the services of the Union even after the setting up of aLegislative Assembly with Council of Ministers. TheBalakrishnan Committee Report which led into passing of theG69th Constitution (Amendment) Act categorically accepted theposition that Entry 41 of List II shall not be within the Legislativecompetence of Delhi Legislature, which conclusion was plausible,since the Legislative power of the Delhi Legislative Assemblywas circumscribed by the expression “insofar as any such matterH

is applicable in relation to Union Territories” as occurring inArticle 239AA(3). In Balakrishnan Committee Report, theCommittee noticed the existence of services, which were inexistence in the Union Territory of Delhi. There were commonservices for several Union Territories constituted by Union. On13.07.1959, the President issued an order in exercise of powerconferred by Proviso to Article 309 of the Constitution and framedRules namely, Conditions of Services of Union TerritoriesEmployees Rules, 1959. [Paras 30, 33, 34, 35, 36][191-G-H; 193-F; 194-B, G-H; 195-D-E]

3. The Delhi Administration Subordinate Ministerial/Executive Service Rules, 1967 were also framed by the Presidentin exercise of power conferred by Article 309 of the Constitutionof India. Rule 2(d) provided that “Commission” means the UnionPublic Services Commission. There has been subsequent Rulesframed for services under the Union Territories. There beingalso Rules for Services combined to different Union Territories.The Parliament was well aware at the time when Constitution69th (Amendment) Act was enacted that the term “services” inthe Union Territories are Union Services and there are no Stateservices and the Commission for Services means the Union PublicServices Commission. [Para 37][195-F-H]

4. The distribution of Legislative powers of State and theParliament is provided under Articles 245 and 246 of theConstitution. Article 246 clause (3) which provides for exclusivepower to make laws for such State or any part thereof, uses theexpression “with respect to any of the matters enumerated inList II in the Seventh Schedule”. The expression used in Article239AA(3)(a) i.e. “in so far as any such matter is applicable toUnion Territories” connotes different expression. There is adifference between the Legislative powers of the State and theUnion Territories, which is apparent by use of differentexpressions in the Constitution. While inserting Article 239AAin the Constitution, the Parliament was well aware about thefunctioning of the Union Territories and extent and controls ofpowers to be given to the Union Territories by constitutionalamendment. [Paras 40, 41][198-C, H; 199-A-B]

A5. Entry 41 of List II of the Seventh Schedule of theConstitution is not available to the Delhi Legislative Assembly.All entries of List II and List are available to LegislativeAssembly for exercising Legislative power except when an entryis excluded by implication or by any express provision. Havingheld that Entry 41 of List II of the Seventh Schedule of theBConstitution is not available to the Legislative Assembly ofGNCTD, there is no occasion to exercise any Executive powerwith regard to “Services” by the GNCTD, since the Executivepower of the GNCTD as per Article 239AA(4) extend in relationto matters with respect to which Legislative Assembly has powerCto make laws. With regard to “Services” GNCTD can exerciseonly those Executive powers, which can be exercised by it underany law framed by the Parliament or it may exercise thoseExecutive powers, which have been delegated to it. [Paras 2, 24and 42][178-B; 190-C; 199-C-D]

DBir Singh v. Delhi Jal Board and Others(2018) 10 SCC312 – relied on.

Case Law Reference

In the judgment of A. K Sikri, J.

In the judgment of Ashok Bhushan, J.

(2018) 10 SCC 312relied onPara 37CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2357of 2017.

From the Judgment and Order dated 04.08.2016 of the HighCourt of Delhi at New Delhi in Writ Petition (C) No. 5888 of 2015.

WITH

Cont. Petition (C) No. 175 of 2016 in Writ Petition (Criminal) No.539 of 1986, Civil Appeal Nos. 2360, 2359, 2363, 2362, 2358, 2361, 2364of 2017 and Criminal Appeal No. 277 of 2017.

Colin Gonsalves, Mrs. Indira Jaising, P. Chidambaram, Kapil Sibal,Shekhar Naphade, Maninder Singh, Rakesh Dwivedi, C. A. Sundaram,Sr. Advs., Ms. Sita Nair Pal, Satya Mitra, Ms. Devika Ramachandran,Chirag M. Shroff, Naveen R. Nath, B. Krishna Prasad, Shadan Farasat,Prateek K. Chadha, Ms. Nitya Ramakrishnan, Rahul Mehra, AshwathSitaraman, Nizam Pasha, Ms. Anusha Ramesh, Ms. Nehmat Kaur,Abhikalp, Siddharth, . Ms. Rudrakshi Deo, Ms. Shruti Narayan, ParvGupta, R. Balasubramanian, Mrs. Binu Tamta, Mrs. Madhvi Diwan,Ritesh Kumar, Prabhas Bajaj, Ms. Kanika Saran, P. Pandey,Ms. A. Chawla, S. Das Gupta, B.V. Balaramdas, Ms. Binu Tamta,Ms. S. Pathak, Eklavaya Dwivedi, Mrs. Anil Katiyar, Raghav Shankar,K. R. Sasiprabhu, Abhishek D., Vishnu Sharma, Ms. Rohini Musa,Abhishek Gupta, Zafar Inayat, Arjun Singh, Gautam, Mrs. Gargi Khanna,Nikhil Nayyar, Dr. Monika Gusain, Senthil Jagadeesan, Advs. for theappearing parties.

The Judgment of the Court was delivered by

A. K. SIKRI, J.

Prologue

1. All these appeals arise out of the judgment dated August 04,2016 rendered by the High Court of Delhi in writ petitions filed before itunder Article 226 of the Constitution of India. We would refer to thesubject matter of those writ petitions and the manner in which the HighCourt 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

Aexercisable 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 nomineeof the President of India). This issue centered around the interpretationthat needed to be given to Article 239AA of the Constitution of India.

B2. Undoubtedly, NCTD was and remains Union Territory andcontinues to be governed by Part VIII of the Constitution which pertainsto ‘the Union Territories’. Article 239, which substituted the originalArticle by the Constitution (Seventh Amendment) Act, 1956, w.e.f., 01November, 1956 deals with administration of Union Territories. As thenomenclature itself suggests, such territories are that of ‘Union”, i.e.,CUnion of India. That is why Article 239 stipulates that every UnionTerritory is to be administered by the President acting, to such extent ashe thinks fit, through an Administrator to be appointed by him with suchdesignation as he may specify. The opening words of Article 239,however, are ‘save as otherwise provided by Parliament by law’, whichDmeas that Parliament by law can provide different schemes ofadministration for such Union Territories, i.e., different than what is statedin Article 239. In the year 1962, Article 239A was inserted, providing alittle departure from the Scheme of administration contained in Article239, insofar as Union Territory of Puducherry is concerned. Likewiseby the Constitution (Sixty Ninth Amendment) Act, 1991 special provisionEwith respect to Delhi stood incorporated. This Article, inter alia, providesfor Legislative Assembly for NCTD, Legislative Assembly whichcomprises of Members who are elected representatives. It means thatvoters of NCTD elect their representatives to the Legislative Assembly.

3. The seminal issue which arose for consideration before theFHigh Court in the writ petitions concerned the powers exercisable bysuch elected Government and the manner in which NCTD is to beadministered. As noted above, as per Article 239, it is the President ofIndia which administers Union Territory and he can do so through anAdministrator to be appointed by him with appropriate designation. SuchGa designation generally is that of Administrator or Lieutenant Governor.In respect of Delhi, designation bestowed is that of Lieutenant Governor.With the aforesaid special provision inculcated by the insertion of Article239AA and by providing for Legislative Assembly, the moot questionarose as to what are the powers of the elected government of Delhi vis-a-vis the Lieutenant Governor of Delhi.H4. To state in nutshell and in precise manner, the High Court ofDelhi held that since NCTD remains Union Territory, it is the Presidentwho continues to administer NCTD as well as Territory of the Union,i.e., the Central Government and his nominee, namely, the LieutenantGovernor enjoys the overlapping powers. When these appeals came upbefore the Division Bench of this Court, the Division Bench found thatissues raised are of seminal constitutional importance and needed to bereferred to Constitution Bench in terms of the provisions contained inClause 5(5) of Article 143 of the Constitution. The matters were,accordingly, referred to the Constitution Bench to answer the aforesaidquestion, namely, ambit and scope of the powers of the GNCTD injuxtaposition to that of the Lieutenant Governor. The Constitution Benchhas given the answers to the various nuances of the otherwise thornyand ticklish issues, vide its judgment dated July 04, 2018. There arethree opinions. The majority opinion is penned by Justice Dipak Misra,Chief Justice of India (as his Lordship then was) to which JusticeKhanwilkar and one of us (Justice A.K. Sikri) concurred. Two otherseparate opinions are rendered by Justice Dr. D.Y. Chandrachud andone of us (Justice Ashok Bhushan). After giving answers to the mootquestions that arise, all these appeals were directed to be listed beforethe Regular Bench for deciding the individual issues and disputes thatarise in these appeals. This is how the matters were heard, on its ownmerits, depending upon subject matter of each of these appeals, by thisBench. We propose to decide these disputes by means of the presentjudgment.

Issues:

5. At this juncture, we would like to state in brief the precisesubject matter of these appeals:

6. As pointed out above, Civil Appeal No. 2357 of 2017 arises outof the common judgment dated August 04, 2016 passed by the HighCourt in batch of writ petitions. In these writ petitions, number ofnotifications passed by the Government of India, or by the GNCTDwere questioned by the writ petitioners. Some writ petitions were filedby GNCTD; one by Union of India and few others by some individuals.The orders and/or actions, validity whereof was questioned by thepetitioners before the High Court is stated by the High Court in theimpugned judgment itself in tabulated form. It would be convenient to

2015 the Home Lt. owers ected the take gainst ent. 2015 of the 1952 the his

2015 venue vising ltural the Act, ntion m ent) the his tment Delhi 2000 ricity R ules, minee ricity thout enant his 2015 of the 1952 the his

7. From the above, it can be discerned that following issues arisefor consideration:

(i) The powers of GNCTD vis-a-vis Lieutenant Governor in respectof matters connected with ‘services’. It may be mentioned, atthis juncture itself that in Delhi there is no Public ServiceCommission. Since it is the Union Territory, the manpower/publicservants which are assigned to Delhi are either those who belongto All India Services like Indian Administrative Service, IndianPolice 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 servantsdo not belong to Union Territory of Delhi exclusively or, for thatmatter, at all. They are placed at the disposal of NCTD by theCentral Government. To this extent there is no dispute. However,bone of contention is about their mobility, i.e. their posting withinDelhi itself from one place/department to other. To put it otherwise,the issue is as to whether such posting orders are to be passed bythe President of India (or for that matter the Lieutenant Governor)or it is the Government of NCTD which is competent to exercisesuch power once the manpower is assigned to it.(ii) Other issue relates to the setting up of Anti-Corruption BureauPolice Station (ACB Police Station). Vide Notifications dated May21, 2015 and July 23, 2014 the Government of India, Ministry ofHome Affairs empowered the Lieutenant Governor to exercisesuch power and directed ACB Police Station not to takecognizance of offences against officials of Central Government.These Notifications were challenged by the GNCTD on the groundthat ACB Police Stations are empowered to take cognizance ofoffences against officials of the Central Government as well, solong as they are posted in Delhi.

(iii) Another dispute between the GNCTD and the CentralGovernment arises out of Commission of Inquiry Act, 1952 (COIAct). It is : Whether GNCTD is empowered to set up Commissionof Inquiry under the said Act of its own and without placing thematter before the Lieutenant Governor for his views/concurrence.

(iv) Delhi Electricity Reforms Act, 2011 is enacted which is StateLegislative. Delhi Electricity Reforms (Transfer Schemes) Rules,2001 have also been framed under this Act. The GNCTD issuedorders under the said Act and Rules appointing the nomineeDirectors on the Board of Electricity Distribution Companieswithout placing the matter before the Lieutenant Governor for hisviews/concurrence. The competence of the GNCTD to pass suchexecutive order is another subject matter of dispute.

(v) Another area of conflict is about the appointment of PublicProsecutors under Section 24 of the Code of Criminal Procedure.Issue is as to whether this power lies with the Lieutenant Governorto the exclusion of GNCTD or it is the GNCTD which is competent

to appoint Public Prosecutors, including Special Public Prosecutorsin individual cases.

Judgment of the Constitution Bench

8. Before we come to the grip of these issues it would be essentialto discuss in brief the provisions of Article 239AA of the Constitution, asinterpreted 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 notedamongst others in this behalf, are Articles 239 and 239AA, which readas under :

“239. Administration of Union territories.—(1) Save as otherwiseprovided by Parliament by law, every Union territory shall beadministered by the President acting, to such extent as he thinksfit, through an administrator to be appointed by him with suchdesignation as he may specify.

(2) Notwithstanding anything contained in Part VI, the Presidentmay appoint the Governor of State as the administrator of anadjoining Union territory, and where Governor is so appointed,he shall exercise his functions as such administrator independentlyof his Council of Ministers.

239-AA. Special provisions with respect to Delhi.—(1) As fromthe date of commencement of the Constitution (Sixty-ninthAmendment) Act, 1991, the Union territory of Delhi shall be calledthe National Capital Territory of Delhi (hereafter in this Partreferred to as the National Capital Territory) and the administratorthereof appointed under Article 239 shall be designated as theLieutenant Governor.

(2)(a) There shall be Legislative Assembly for the NationalCapital Territory and the seats in such Assembly shall be filled bymembers chosen by direct election from territorial constituenciesin the National Capital Territory.

(b) The total number of seats in the Legislative Assembly, thenumber of seats reserved for Scheduled Castes, the division ofthe National Capital Territory into territorial constituencies(including the basis for such division) and all other matters relating

[2019] 3 S.C.R.

to the functioning of the Legislative Assembly shall be regulatedby law made by Parliament.

(c) The provisions of Articles 324 to 327 and 329 shall apply inrelation to the National Capital Territory, the Legislative Assemblyof the National Capital Territory and the members thereof as theyapply, in relation to State, the Legislative Assembly of Stateand the members thereof respectively; and any reference inArticles 326 and 329 to ‘appropriate Legislature’ shall be deemedto be reference to Parliament.

(3)(a) Subject to the provisions of this Constitution, the LegislativeAssembly shall have power to make laws for the whole or anypart of the National Capital Territory with respect to any of thematters enumerated in the State List or in the Concurrent List inso far as any such matter is applicable to Union territories exceptmatters with respect to Entries 1, 2 and 18 of the State List andEntries 64, 65 and 66 of that List in so far as they relate to the saidEntries 1, 2 and 18.

(b) Nothing in sub-clause (a) shall derogate from the powers ofParliament under this Constitution to make laws with respect toany matter for Union territory or any part thereof.

(c) If any provision of law made by the Legislative Assemblywith respect to any matter is repugnant to any provision of lawmade by Parliament with respect to that matter, whether passedbefore or after the law made by the Legislative Assembly, or ofan earlier law, other than law made by the Legislative Assembly,then, in either case, the law made by Parliament, or, as the casemay be, such earlier law, shall prevail and the law made by theLegislative Assembly shall, to the extent of the repugnancy, bevoid:

Provided that if any such law made by the Legislative Assemblyhas been reserved for the consideration of the President and hasreceived his assent, such law shall prevail in the National CapitalTerritory:

Provided further that nothing in this sub-clause shall preventParliament from enacting at any time any law with respect to thesame matter including law adding to, amending, varying orrepealing the law so made by the Legislative Assembly.

(4) There shall be Council of Ministers consisting of not morethan ten per cent of the total number of members in the LegislativeAssembly, with the Chief Minister at the head to aid and advisethe Lieutenant Governor in the exercise of his functions in relationto matters with respect to which the Legislative Assembly haspower to make laws, except in so far as he is, by or under anylaw, required to act in his discretion:

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

(5) The Chief Minister shall be appointed by the President andthe other Ministers shall be appointed by the President on theadvice of the Chief Minister and the Ministers shall hold officeduring the pleasure of the President.

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

{(7)(a)} Parliament may, by law, make provisions for giving effectto, or supplementing the provisions contained in the foregoingclauses and for all matters incidental or consequential thereto.

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

(8) The provisions of Article 239-B shall, so far as may be, applyin relation to the National Capital Territory, the Lieutenant Governorand the Legislative Assembly, as they apply in relation to the Unionterritory of {Puducherry}, the administrator and its Legislature,respectively; and any reference in that article to ‘clause (1) ofArticle 239-A’ shall be deemed to be reference to this article orArticle 239-AB, as the case may be.”

A10. As pointed above, the Court in aforesaid Constitution Benchjudgment took note of the fact that with insertion of Article 239AA,which gave special status to the Union Territory of Delhi known asNational Capital Territory of Delhi (NCTD), the NCTD has its ownLegislative Assembly which is elected body through the election processby the voters of NCTD. The principal question, therefore, was as toBwhether this amended constitutional provision had transformed the statusof Delhi and what is the extent and power which are to be accorded tothe Legislative Assembly as well as the Executive as result of theseelections, i.e., Government of NCT of Delhi. In the majority opinion, itwas emphasised at the beginning itself that while entering into the processCof interpretation of Article 239AA of the Constitution, the Court issupposed to take aid of new tools such as constitutional pragmatismhaving due regard for sanctity of objectivity, realisation of the purpose intruest sense by constantly reminding one and all about the sacrosanctityof democratic structure envisaged by our Constitution, elevation of theprecepts of constitutional trust and morality, and the solemn idea of de-Dcentralisation of power. This method of understanding is described inthe judgment as ‘confluence of the idea and spirit of the Constitution’.The court also emphasised that interpretation of Article 239AA of theConstitution is not to be done in an exclusive compartment but in thecontext in which it has been introduced and also keeping in view theEconceptual structure of the other relevant Articles of the Constitution.

11. In this process, the Court recapitulated brief history of Delhifrom its inception as Capital of India in the year 1911 upto the stage ofinsertion of Article 239AA in the Constitution, which was the result of adetailed report submitted by Balakrishnan Committee. This narration inFthe judgment is as follows:

“15. On 12-12-1911, Delhi became the capital of India. DelhiTehsil and Mehrauli Thana were separated from Punjab andannexed to Delhi headed by Commissioner and it came to beknown as the Chief Commissioner’s province. In 1912, the DelhiLaws Act, 1912 came into force with effect from 1-10-1912making 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 appropriatenotification in the Gazette of India. The Government of India Act,1919 and the Government of India Act, 1935 retained Delhi as

Centrally administered territory. On coming into force of theConstitution of India on 26-1-1950, Delhi became Part State.In the year 1951, the Government of Part States Act, 1951 wasenacted providing, inter alia, for Legislative Assembly in Delhi.Section 21(1) of the 1951 Act empowered the Legislative Assemblyto make laws on all matters of List II of the Seventh Schedule ofthe Constitution except (i) public order; (ii) police (including railwaypolice); (iii) constitution and powers of municipal corporationsand local authorities, etc. — public utility authorities; (iv) lands &buildings vested in/in possession of the Union situated in Delhi orNew Delhi; (v) offences against laws about subjects mentionedfrom (i) to (iv); and (vi) jurisdiction of courts with respect to theabove 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 StatesReorganisation Act, 1956 which did away with Part A, B, andD States and only two categories, namely, States and UnionTerritories remained and Delhi became Union Territory to beadministered by an Administrator appointed by the President. TheLegislative Assembly of Delhi and the Council stood abolished. Inthe year 1953, the Government of Union Territories Act, 1963was enacted to provide for Legislative Assemblies and Council ofMinisters for various Union Territories but the provisions of thesaid Act were not made applicable to Delhi. The DelhiAdministration Act, 1966 was enacted to provide for limitedrepresentative Government for Delhi through MetropolitanCouncil comprising of 56 elected Members and five nominatedMembers. In the same year, on 20-8-1966, the Ministry of HomeAffairs issued S.O. No. 2524 that provided, inter alia, that theLieutenant Governor/Administrator/Chief Commissioner shall besubject to the control of the President of India and exercise suchpowers and discharge the functions of State Government underthe Commissions of Inquiry Act, 1952 within the Union Territories.In the year 1987, the Balakrishnan Committee was set up to submitits recommendations with regard to the status to be conferred onDelhi and the said Committee recommended that Delhi shouldcontinue to be Union Territory but there must be LegislativeAssembly and Council of Ministers responsible to the said

ABC

DEFG

Assembly with appropriate powers; and to ensure stability,appropriate constitutional measures should be taken to confer theNational Capital special status. The relevant portion of theBalakrishnan Committee Report reads as follows:

“6.5.5. In Paras 6.5.2. and 6.5.3. we have briefly summarisedthe arguments for and against making Delhi constituent Stateof the Union. After the most careful consideration of all thearguments and on an objective appraisal, we are fully convincedthat most of the arguments against making Delhi State of theUnion are very substantial, sound and valid and deserveacceptance. This was also the view expressed before us bysome of the eminent and knowledgeable persons whom weinterviewed. As these arguments are self-evident we find itunnecessary to go into them in detail except those relating toconstitutional and financial aspects covered by them.6.5.6. The important argument from the constitutional angle isbased on the federal type of our Constitution under which thereis constitutional division of powers and functions betweenthe Union and the State. If Delhi becomes full-fledged State,there will be constitutional division of sovereign, legislativeand executive powers between the Union and the State ofDelhi. One of the consequences will be that in respect of mattersin the State List, Parliament will have no power on jurisdictionto make any law except in the special and emergency situationsprovided for under the Constitution and to that extent the UnionExecutive cannot exercise executive powers or functions. Theconstitutional prohibition on the exercise of powers andfunctions will make it virtually impossible for the Union todischarge its special responsibilities in relation to the NationalCapital as well as to the nation itself. We have already indicatedin an earlier chapter the special features of the National Capitaland the need for keeping it under the control of the UnionGovernment. Such control is vital in the national interestirrespective of whether the subject-matter is in the State fieldor Union field. If the administration of the National Capital isdivided into rigid compartments of State field and Union field,conflicts are likely to arise in several vital matters, particularlyif the two Governments are run by different political parties.Such conflicts may, at times, prejudice the national interest….

[A. K. SIKRI, J.]

6.5.9. We are also impressed with the argument that Delhi asthe National Capital belongs to the nation as whole and anyconstituent State of the Union of which Delhi will become apart would sooner or later acquire predominant position inrelation to other States. Sufficient constitutional authority forUnion intervention in day-to-day matters, however vital someof them may be, will not be available to the Union, therebyprejudicing the discharge of its national duties andresponsibilities.

LIEUTENANT GOVERNORAND COUNCILOF MINISTERS

6.7.19. As necessary corollary to the establishment of aresponsible Government for Delhi the structure of the executiveshould be more or less on the pattern provided by theConstitution. Accordingly, there should be Head of theAdministration with Council of Ministers answerable to theLegislative Assembly. As Delhi will continue to have the statusof Union Territory, Article 239 will apply to it and so it willhave an Administrator with such designation as may bespecified. The present designation of the Lieutenant Governormay be continued and recognised in the Constitution itself. …

6.7.21. The Administrator should be expressly required toperform his functions on the aid and advice of the Council ofMinisters. The expression “to aid and advice” is well-understood term of art to denote the implications of the Cabinetsystem of Government adopted by our Constitution. Under thissystem, the general rule is that the exercise of executivefunctions by the Administrator has to be on the aid and adviceof his Council of Ministers which means that it is virtually theMinisters that should take decisions on such matters. However,for Delhi, the following modifications of this general rule willhave to be adopted:

(i) Firstly, the requirement of acting on the aid and advice ofthe Council of Ministers cannot apply to the exercise by the

Administrator of any judicial or quasi-judicial functions. Thereason is obvious because in respect of such functions there isno question of acting on the advice of another person.

(ii) Secondly, the requirement is only in relation to matters inrespect of which the Legislative Assembly has the powers tomake laws. This power will be subject to the restrictions alreadydealt with earlier in the Report. Accordingly, the Council ofMinisters will not have jurisdiction to deal with matters excludedfrom the purview of the Legislative Assembly.

(iii) Thirdly, there is need for special provision to resolvedifferences between the Administrator and his Council ofMinisters on any matter concerning the administration of Delhi.Normally, the general principle applicable to the system ofresponsible Government under the Constitution is that the Headof the Administration should act as mere constitutionalfigurehead and will have to accept the advice of the Council ofMinisters except when the matter is left to his discretion.However, by virtue of Article 239 of the Constitution, the ultimateresponsibility for good administration of Delhi is vested in thePresident acting through the Administrator. Because of thisthe Administrator has to take somewhat more active part inthe administration than the Governor of State. It is, therefore,necessary to reconcile between the need to retain theresponsibility of the Administrator to the Centre in this regardand the need to enforce the collective responsibility of theCouncil of Ministers to the Legislature. The best way of doingthis is to provide that in case of difference of opinion whichcannot be resolved between the Administrator and his Councilof Ministers, he should refer the question to the President andthe decision of the President thereon will be final. In cases ofurgency, if immediate action is necessary, the Administratormay direct action to be taken pending such decision of thePresident. provision of this kind was made for this very reasonnot only in the 1951 Act, but also in the 1963 Act relating to theUnion Territories as well as in the 1978 Bill.”

12. The majority opinion thereafter took note of the arguments ofboth sides. Discussion that followed thereafter was on the followingHaspects:

• Ideals/principles of representative governance

• Constitutional morality

• Constitutional objectivity

• Constitutional governance and the conception of legitimateconstitutional trust

• Collective responsibility

• Federal functionalism and democracy

• Collaborative federalism

• Pragmatic federalism

• Concept of federal balance

• Interpretation of the Constitution

• Purposive interpretation

• Constitutional culture and pragmatism

13. After discussing in detail the aforesaid tools necessarily requiredfor proper and just interpretation of the concerned provisions, the Courtundertook the exercise of interpreting Articles 239, 239A and 239AA ofthe Constitution.

14. Since, this interpretation is material and significant for decidingspecific issues which have been raised in these appeals, we would liketo incorporate the portions of the majority judgment which have interpretedthese Articles:

“Interpretation of Articles 239 and 239-A:

174. The aforesaid passages set two guidelines. First, it permitsjudicial creativity and second, it mentions one to be conscious ofpragmatic realism of the obtaining situation and the controversy.That apart, there is suggestion to take note of the behaviouralneeds and norms of life. Thus, creativity, practical applicabilityand perception of reality from the societal perspective are thewarrant while engaging oneself with the process of interpretationof constitutional provision.

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

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

“239. Administration of Union Territories.—(1) Save asotherwise provided by Parliament by law, every UnionTerritory shall be administered by the President acting, tosuch extent as he thinks fit, through an administrator to beappointed by him with such designation as he may specify.

(2) Notwithstanding anything contained in Part VI, the Presidentmay appoint the Governor of State as the Administrator ofan adjoining Union Territory, and where Governor is soappointed, he shall exercise his functions as such Administratorindependently 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, byemploying the word “shall”, makes it abundantly clear that everyUnion Territory is mandatorily to be administered by the Presidentthrough an Administrator unless otherwise provided by Parliamentin the form of law. Further, clause (1) of Article 239 alsostipulates that the said Administrator shall be appointed by thePresident with such designation as he may specify.

178. Clause (2) thereafter, being non obstante clause, lays downthat irrespective of anything contained in Part VI of theConstitution, the President may appoint the Governor of Stateto act as an Administrator of Union Territory which is adjacentand/or contiguous to the State of which he is the Governor. TheGovernor of State who is so appointed as an Administrator ofan adjoining UT shall exercise his functions as an Administratorof the said UT independently and Autonomously and not as perthe aid and advice of the Council of Ministers of the State ofwhich 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 requirethe Governor to exercise his powers in his discretion are containedin Articles to which reference has been made. To illustrate, Article239(2) states that where Governor is appointed an Administratorof an adjoining Union Territory he shall exercise his functions assuch Administrator independently of his Council of Ministers.”

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

“The unamended Article 239 envisaged administration of theStates specified in Part of the First Schedule of theConstitution by the President through Chief Commissioneror Lieutenant Governor to be appointed by him or throughthe Government of neighbouring State. This was subject toother provisions of Part VIII of the Constitution. As againstthis, amended Article 239 lays down that subject to any lawenacted by Parliament every Union Territory shall beadministered by the President acting through an Administratorappointed by him with such designation as he may specify. Interms of clause (2) of Article 239 (amended), the Presidentcan appoint the Governor of State as an Administrator of anadjoining Union Territory and on his appointment, the Governoris required to exercise his function as an Administratorindependently of his Council of Ministers. The difference inthe language of the unamended and amended Article 239 makesit clear that prior to 1-11-1956, the President could administerPart State through Chief Commissioner or LieutenantGovernor, but, after the amendment, every Union Territoryis required to be administered by the President throughan Administrator appointed by him with such designationas he may specify. In terms of clause (2) of Article 239(amended), the President is empowered to appoint theGovernor of State as the Administrator to an adjoining UnionTerritory and once appointed, the Governor, in his capacity asAdministrator, has to act independently of the Council ofMinisters of the State of which he is the Governor.”

DEFG

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

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

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

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

(2) Any such law as is referred to in clause (1) shall not bedeemed to be an amendment of this Constitution for thepurposes of Article 368 notwithstanding that it contains anyprovision which amends or has the effect of amending thisConstitution.”

182. The aforesaid Article was brought into force by theConstitution (Fourteenth Amendment) Act, 1962. Prior to the year1971, under Article 239-A, Parliament had the power to create bylaw legislatures and/or Council of Ministers for the then UnionTerritories of Himachal Pradesh, Tripura, Manipur, Goa and Damanand Diu. Thereafter, on 25-1-1971, Himachal Pradesh acquiredStatehood and consequently, Himachal Pradesh was omitted fromArticle 239-A. Subsequently, on 21-1-1972, Tripura and Manipurwere granted Statehood as consequence of which both Manipurand Tripura were omitted from Article 239-A.

183. Likewise, with the enactment of the Goa, Daman and DiuReorganisation Act, 1987 on 30-5-1987, both Goa and Damanand Diu were omitted from Article 239-A. Parliament, under theGovernment of Union Territories Act, 1963, created legislaturesfor the then Union Territories and accordingly, even after 30-5-1987, the applicability of Article 239-A stands limited to UT ofPuducherry.

184. As natural corollary, the Union Territory of Puducherrystands on different footing from other UTs of Andaman andNicobar Islands, Daman and Diu, Dadra and Nagar Haveli,

Lakshadweep and Chandigarh. However, we may hasten to addthat Puducherry cannot be compared with the NCT of Delhi as itis 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 ofthe present batch of appeals. The said Articles require an elaborateinterpretation and thorough analysis to unearth and discover thetrue intention of Parliament while inserting the said Articles, inexercise of its constituent power, by the Constitution (Sixty-ninthAmendment) Act, 1991. The said Articles read as follows:

“239-AA. Special provisions with respect to Delhi.—(1) Asfrom the date of commencement of the Constitution (Sixty-ninthAmendment) Act, 1991, the Union Territory of Delhi shall becalled the National Capital Territory of Delhi (hereafter in thisPart referred to as the National Capital Territory) and theAdministrator thereof appointed under Article 239 shall bedesignated as the Lieutenant Governor.

(2)(a) There shall be Legislative Assembly for the NationalCapital Territory and the seats in such Assembly shall be filledby Members chosen by direct election from territorialconstituencies in the National Capital Territory.

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

(c) The provisions of Articles 324 to 327 and 329 shall apply inrelation to the National Capital Territory, the Legislative Assemblyof the National Capital Territory and the Members thereof asthey apply, in relation to State, the Legislative Assembly of aState and the Members thereof respectively; and any referencein Articles 326 and 329 to “appropriate Legislature” shall bedeemed to be reference to Parliament.

(3)(a) Subject to the provisions of this Constitution, the LegislativeAssembly shall have power to make laws for the whole or anypart of the National Capital Territory with respect to any of thematters enumerated in the State List or in the Concurrent Listinsofar as any such matter is applicable to Union Territories exceptmatters with respect to Entries 1, 2 and 18 of the State List andEntries 64, 65 and 66 of that List insofar as they relate to thesaid Entries 1, 2 and 18.

(b) Nothing in sub-clause (a) shall derogate from the powers ofParliament under this Constitution to make laws with respect toany matter for Union Territory or any part thereof.

(c) If any provision of law made by the Legislative Assemblywith respect to any matter is repugnant to any provision of lawmade by Parliament with respect to that matter, whether passedbefore or after the law made by the Legislative Assembly, or ofan earlier law, other than law made by the Legislative Assembly,then, in either case, the law made by Parliament, or, as the casemay be, such earlier law, shall prevail and the law made by theLegislative Assembly shall, to the extent of the repugnancy, bevoid:Provided that if any such law made by the Legislative Assemblyhas been reserved for the consideration of the President and hasreceived his assent, such law shall prevail in the National CapitalTerritory:

Provided further that nothing in this sub-clause shall preventParliament from enacting at any time any law with respect tothe same matter including law adding to, amending, varying orrepealing the law so made by the Legislative Assembly.

(4) There shall be Council of Ministers consisting of not morethan ten per cent of the total number of Members in theLegislative Assembly, with the Chief Minister at the head to aidand advise the Lieutenant Governor in the exercise of hisfunctions in relation to matters with respect to which theLegislative Assembly has power to make laws, except insofaras he is, by or under any law, required to act in his discretion:

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

(5) The Chief Minister shall be appointed by the President andother Ministers shall be appointed by the President on the adviceof the Chief Minister and the Ministers shall hold office during thepleasure of the President.

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

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

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

(8) The provisions of Article 239-B shall, so far as may be, applyin relation to the National Capital Territory, the Lieutenant Governorand the Legislative Assembly, as they apply in relation to the UnionTerritory of Puducherry, the Administrator and its legislature,respectively; and any reference in that Article to “clause (1) ofArticle 239-A” shall be deemed to be reference to this Articleor Article 239-AB, as the case may be.

239-AB. Provision in case of failure of constitutionalmachinery.—If the President, on receipt of report from theLieutenant Governor or otherwise, is satisfied—

(a) that situation has arisen in which the administration of theNational Capital Territory cannot be carried on in accordancewith the provisions of Article 239-AA or of any law made inpursuance of that Article; or

(b) that for the proper administration of the National CapitalTerritory it is necessary or expedient so to do, the President mayby order suspend the operation of any provision of Article 239-AA or of all or any of the provisions of any law made in pursuanceof that Article for such period and subject to such conditions asmay be specified in such law and make such incidental andconsequential provisions as may appear to him to be necessary orexpedient for administering the National Capital Territory inaccordance with the provisions of Article 239 and Article 239-AA.”

(emphasis supplied)

“186. We deem it appropriate to refer to the Statement of Objectsand Reasons for the amendment which reads thus:

“1. The question of reorganisation of the administrative set-upin the Union Territory of Delhi has been under the considerationof the Government for some time. The Government of Indiaappointed on 24-12-1987 Committee to go into the variousissues connected with the administration of Delhi and torecommend measures inter alia for the streamlining of theadministrative set-up. The Committee went into the matter ingreat detail and considered the issues after holding discussionswith various individuals, associations, political parties and otherexperts and taking into account the arrangements in the nationalcapitals of other countries with federal set-up and also thedebates in the Constituent Assembly as also the reports byearlier Committees and Commissions. After such detailedinquiry and examination, it recommended that Delhi shouldcontinue to be Union Territory and provided with LegislativeAssembly and Council of Ministers responsible to suchAssembly with appropriate powers to deal with matters ofconcern to the common man. The Committee alsorecommended that with view to ensure stability andpermanence the arrangements should be incorporated in theConstitution to give the National Capital special status amongthe Union Territories.

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

The aforesaid, as we perceive, really conceives of conferringspecial status on Delhi. This fundamental grammar has to bekept in view when we penetrate into the interpretativedissection of Article 239-AA and other articles that are pertinentto understand the said provision.

187. The aforesaid, as we perceive, really conceives ofconferring special status on Delhi. This fundamental grammarhas to be kept in view when we penetrate into the interpretativedissection of Article 239-AA and other articles that are pertinentto understand the said provision.”

15. After interpreting the provisions in the manner aforesaid, theCourt concentrated on the status of NCTD, in particular. In the process,it referred to earlier judgment in the case of Samsher Singh vs. State ofPunjab[1], from which it culled out the powers of the Governor in Statewhere the Governor was empowered to act ‘in his discretion’. Itobserved:

“192. Thereafter, A.N. Ray, C.J. discussed the provisions of theConstitution as well as couple of paragraphs of the Sixth Schedulewherein the words “in his discretion” are used in relation to certainpowers of the Governor to highlight the fact that Governor canact in his discretion only when the provisions of the Constitutionso permit.

193.In this context, we may refer with profit to the authority inDevji 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 saidcase, the issue that arose for consideration was whether the roleand functions of the Administrator stipulated under the UnionTerritories Act, 1963 is similar to those of Governor of Stateand as such, whether the Administrator has to act on the “aid andadvice” of the Council of Ministers. The Court considered therelevant provisions and after comparing the language of Articles74 and 163 of the Constitution with the language of Section 44 ofthe Union Territories Act, 1963, it observed that the Administrator,even in matters where he is not required to act in his discretionunder the Act or where he is not exercising any judicial or quasi-judicial functions, is not bound to act according to the advice ofthe Council of Ministers and the same is manifest from the proviso

1 (1974) 2 SCC 831

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 adifference of opinion between the Administrator and hisMinisters on any matter, the Administrator shall refer the matterto the President for decision and act according to the decisiongiven thereon by the President. If the President in givensituation agrees with what the Administrator opines contraryto the advice of the Council of Ministers, the Administratorwould be able to override the advice of the Council of Ministersand on reference to the President under the proviso, obviouslythe President would act according to the advice of the Councilof Ministers given under Article 74. Virtually, therefore, inthe event of difference of opinion between the Councilof Ministers of the Union Territory and the Administrator,the right to decide would vest in the Union Governmentand the Council of Ministers of the Union Territory wouldbe 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 theAdministrator that in the event of difference of opinion betweenhim and the Council of Ministers not only he can refer the matterto the President but during the interregnum where the matter is inhis opinion so urgent that it is necessary for him to take immediateaction, he has the power to take such action or to give suchdirections in the matter as he deems necessary. In other words,during the interregnum he can completely override the advice ofthe Council of Ministers and act according to his light. Neither the

Governor nor the President enjoys any such power. This basicfunctional difference in the powers and position enjoyed bythe Governor and the President on the one hand and theAdministrator on the other is so glaring that it is not possibleto hold on the analogy of the decision in Samsher Singh case[Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : 1974SCC (L&S) 550] that the Administrator is purely aconstitutional functionary bound to act on the advice of theCouncil of Ministers and cannot act on his own.”

(emphasis supplied)

16. Thereafter, various other judgments were taken note of includingNine Judge Bench in NDMC v. State of Punjab[2] case which specificallydeal with the status of NCTD. Following paragraphs on this aspect needa reproduction:

“199. The Governor of State, as per Article 163, is bound bythe aid and advice of his Council of Ministers in the exercise ofhis 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 sopermitted by an express provision of the Constitution.

200. As far as the Lieutenant Governor of Delhi is concerned, asper Article 239-AA(4), he is bound by the aid and advice ofhis Council of Ministers in matters for which the DelhiLegislative Assembly has legislative powers. However, thisis subject to the proviso contained in clause (4) of Article 239-AAwhich gives the power to the Lieutenant Governor that in case ofany difference between him and his Ministers, he shall refer thesame to the President for binding decision. This proviso to clause(4) has retained the powers for the Union even over matters fallingwithin the legislative domain of the Delhi Assembly. This overridingpower of the Union to legislate qua other Union Territories isexposited under Article 246(4).”

17. The Court, thereafter, specifically focused on the executivepower of the Council of Ministers of Delhi and made following remarkson this particular aspect:

“204. Drawing an analogy while interpreting the provisions ofArticle 239-AA(3)(a) and Article 239-AA(4) would reveal thatthe executive power of the Government of NCT of Delhi isconterminous with the legislative power of the DelhiLegislative Assembly which is envisaged in Article 239-AA(3) and which extends over all but three subjects in theState List and all subjects in the Concurrent List and, thus,Article 239-AA(4) confers executive power on the Council ofMinisters over all those subjects for which the Delhi LegislativeAssembly has legislative power.

205. The legislative power conferred upon the Delhi LegislativeAssembly is to give effect to legislative enactments as per the

2 (1997) 7 SCC 339

Aneeds and requirements of Delhi whereas the executive power isconferred on the executive to implement certain policy decisions.This view is also strengthened by the fact that after the SeventhAmendment of the Constitution by which the words “Part CStates” were substituted by the words “Union Territories”, theword “State” in the proviso to Article 73 cannot be read toBmean Union Territory as such an interpretation wouldrender the scheme and purpose of Part VIII (UnionTerritories) of the Constitution infructuous.”

18. Next facet of discussion was on the essence of Article 239AAof the Constitution. It would be of use to take note of the followingCdiscussion on this aspect:

“207. At the outset, we must declare that the insertion of Articles239-AA and 239-AB, which specifically pertain to NCT of Delhi,is reflective of the intention of Parliament to accord Delhi suigeneris status from the other Union Territories as well as fromthe Union Territory of Puducherry to which Article 239-A issingularly applicable as on date. The same has been authoritativelyheld by the majority judgment in NDMC case [NDMC v. Stateof Punjab, (1997) 7 SCC 339] to the effect that the NCT ofDelhi is class by itself.

215. We have highlighted this difference to underscore andemphasise the intention of Parliament, while inserting Article 239-AA in the exercise of its constituent power, to treat the LegislativeAssembly of the National Capital Territory of Delhi as set ofelected representatives of the voters of NCT of Delhi and to treatthe Government of NCT of Delhi as representative form ofGovernment.

216. The Legislative Assembly is wholly comprised of electedrepresentatives who are chosen by direct elections and are sentto Delhi’s Legislative Assembly by the voters of Delhi. None ofthe Members of Delhi’s Legislative Assembly are nominated. Theelected representatives and the Council of Ministers of Delhi, beingaccountable to the voters of Delhi, must have the appropriatepowers 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 aUnion Territory, yet it should be provided with LegislativeAssembly and Council of Ministers responsible to such Assemblywith appropriate powers to deal with matters of concern to thecommon man.

217.Sub-clause (a) of clause (3) of Article 239-AA establishesthe power of the Delhi Legislative Assembly to enact laws forNCT of Delhi with respect to matters enumerated in theState List and/or Concurrent List except insofar as matterswith respect to and which relate to Entries 1, 2 and 18 of theState List.

218. Sub-clause (b) of clause (3) lays down that Parliament hasthe powers to make laws with respect to any matter for UnionTerritory 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 tothe effect that where any provision of any law made by theLegislative Assembly of Delhi is repugnant to any provision oflaw made by Parliament, then the law made by Parliament shallprevail and the law made by the Delhi Legislative Assembly shallbe void to the extent of repugnancy.

219. Thus, it is evident from clause (3) of Article 239-AA thatParliament has the power to make laws for NCT of Delhi on anyof the matters enumerated in the State List and the ConcurrentList and at the same time, the Legislative Assembly of Delhi alsohas the legislative power with respect to matters enumeratedin the State List and the Concurrent List except matters withrespect to entries which have been explicitly excluded from Article239-AA(3)(a).

220. Now, it is essential to analyse clause (4) of Article 239-AA,the most important provision for determination of the controversyat hand. Clause (4) stipulates Westminster style Cabinetsystem of Government for NCT of Delhi where there shallbe Council of Ministers with the Chief Minister at the head toaid and advise the Lieutenant Governor in the exercise of hisfunctions in relation to matters with respect to which the DelhiLegislative Assembly has power to enact laws except in matters

in respect of which the Lieutenant Governor is required to act inhis discretion.

221. The proviso to clause (4) of Article 239-AA stipulates thatin case of difference of opinion on any matter between theLieutenant Governor and his Ministers, the Lieutenant Governorshall refer it to the President for binding decision. Further, pendingsuch decision by the President, in any case where the matter, inthe opinion of the Lieutenant Governor, is so urgent that it isnecessary for him to take immediate action, the proviso makeshim competent to take such action and issue such directions as hedeems necessary.

222. conjoint reading of Article 239-AA(3)(a) and Article 239-AA(4) reveals that the executive power of the Government ofNCT of Delhi is coextensive with the legislative power of theDelhi Legislative Assembly which is envisaged in Article 239-AA(3) and which extends over all but three subjects in theState List and all subjects in the Concurrent List and, thus,Article 239-AA(4) confers executive power on the Councilof Ministers over all those subjects for which the Delhi LegislativeAssembly has legislative power.

223. Article 239-AA(3)(a) reserves Parliament’s legislative poweron all matters in the State List and Concurrent List, but clause(4) nowhere reserves the executive powers of the Unionwith respect to such matters. On the contrary, clause (4)explicitly grants to the Government of Delhi executive powers inrelation to matters for which the Legislative Assembly has powerto legislate. The legislative power is conferred upon theAssembly to enact whereas the policy of the legislation hasto be given effect to by the executive for which theGovernment of Delhi has to have coextensive executivepowers. Such view is in consonance with the observation inRam Jawaya Kapur [Ram Jawaya Kapur v. State of Punjab,AIR 1955 SC 549] which has been discussed elaborately in theearlier part of the judgment.

224. Article 239-AA(4) confers executive powers on theGovernment of NCT of Delhi whereas the executive power ofthe Union stems from Article 73 and is coextensive with

Parliament’s legislative power. Further, the ideas of pragmaticfederalism and collaborative federalism will fall to the ground ifwe are to say that the Union has overriding executive powerseven in respect of matters for which the Delhi Legislative Assemblyhas legislative powers. Thus, it can be very well said that theexecutive power of the Union in respect of NCT of Delhi isconfined to the three matters in the State List for which thelegislative power of the Delhi Legislative Assembly has beenexcluded under Article 239-AA(3)(a). Such an interpretationwould thwart any attempt on the part of the Union Government toseize all control and allow the concepts of pragmatic federalismand federal balance to prevail by giving NCT of Delhi some degreeof required independence in its functioning subject to the limitationsimposed by the Constitution.

239. The proviso to Article 239-AA(4), we say without any fearof contradiction, cannot be interpreted in strict sense of themere words employed treating them as only letters without payingheed to the thought and the spirit which they intend to convey.They are not to be treated as bones and flesh without nerves andneurons that make the nerves functional. We feel, it is necessaryin the context to read the words of the provision in the spirit ofcitizenry participation in the governance of democratic politythat is republican in character. We may hasten to add that whenwe say so, it should not be construed that there is allowance ofenormous entry of judicial creativity, for the construction oneintends to place has its plinth and platform on the Preamble andprecedents pertaining to constitutional interpretation and purposiveinterpretation keeping in view the conception of sense and spiritof the Constitution. It is, in way, exposition of judicial sensibilityto the functionalism of the Constitution. And we call it constitutionalpragmatism.”

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, interalia, the following discussion:

“244.Upon scanning the anatomy of the 1991 Act, we findthat the Act contains fifty-six sections and is divided into fiveParts, each dealing with different fields. Now, we may refer tosome 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 withmatters in which the Lieutenant Governor may act in hisdiscretion and reads thus:

“41. Matters in which Lieutenant Governor to act in hisdiscretion.—(1) The Lieutenant Governor shall act in hisdiscretion in matter—

(i) which falls outside the purview of the powers conferred onthe Legislative Assembly but in respect of which powers orfunctions are entrusted or delegated to him by the President;or

(ii) in which he is required by or under any law to act in hisdiscretion or to exercise any judicial or quasi-judicial functions.

(2) If any question arises as to whether any matter is or is nota matter as respects which the Lieutenant Governor is by orunder any law required to act in his discretion, the decisionof the Lieutenant Governor thereon shall be final.

(3) If any question arises as to whether any matter is or is nota matter as respects which the Lieutenant Governor is requiredby any law to exercise any judicial or quasi-judicial functions,the decision of the Lieutenant Governor thereon shall be final.

245. careful perusal of Section 41 of the 1991 Act showsthat the Lieutenant Governor can act in his discretion only inmatters which fall outside the legislative competence ofthe Legislative Assembly of Delhi or in respect of mattersof which powers are entrusted or delegated to him bythe President or where he is required by law to act in hisdiscretion or to exercise any judicial or quasi-judicial functionsand, therefore, it is clear that the Lieutenant Governor cannotexercise his discretion in each and every matter and by andlarge, his discretionary powers are limited to the three mattersover 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 Actwhich falls under Part V of the Act titled “Miscellaneous andTransitional Provisions” and stipulates the relation of the LieutenantGovernor and his Ministers to the President. Section 49 readsthus:

“49. Relation of Lieutenant Governor and his Ministers toPresident.—Notwithstanding anything in this Act, theLieutenant Governor and his Council of Ministers shall be underthe general control of, and comply with such particulardirections, if any, as may from time-to-time be given by thePresident.”

“254. Section 49 of the 1991 Act discloses that the set-up in NCTof Delhi is one where the Council of Ministers headed by theChief Minister on one hand and the Lieutenant Governor on theother are team, pair on bicycle built for two with the Presidentas its rider who retains the general control. Needless to say, thePresident, while exercising this general control, acts as perthe aid and advice of the Union Council of Ministers.”

20. We would now like to reproduce, in entirety, the conclusionswhich the majority judgment arrived at. These are as under:

“The conclusions in seriatim

284. In view of our aforesaid analysis, we record our conclusionsin seriatim:

284.1. While interpreting the provisions of the Constitution, thesafe and most sound approach for the constitutional courts to adoptis to read the words of the Constitution in the light of the spirit ofthe Constitution so that the quintessential democratic nature ofour Constitution and the paradigm of representative participationby way of citizenry engagement are not annihilated. The courtsmust adopt such an interpretation which glorifies the democraticspirit of the Constitution.

284.2. In democratic republic, the collective who are thesovereign elect their law-making representatives for enacting laws

and shaping policies which are reflective of the popular will. Theelected representatives being accountable to the public must beaccessible, approachable and act in transparent manner. Thus,the elected representatives must display constitutional objectivityas standard of representative governance which neither toleratesideological fragmentation nor encourages any utopian fantasy,rather it lays stress on constitutional ideologies.

284.3. Constitutional morality, appositely understood, means themorality that has inherent elements in the constitutional normsand the conscience of the Constitution. Any act to garnerjustification must possess the potentiality to be in harmony withthe constitutional impulse. In order to realise our constitutionalvision, it is indispensable that all citizens and high functionaries inparticular inculcate spirit of constitutional morality which negatesthe idea of concentration of power in the hands of few.284.4. All the three organs of the State must remain true to theConstitution by upholding the trust reposed by the Constitution inthem. The decisions taken by constitutional functionaries and theprocess by which such decisions are taken must have normativereasonability and acceptability. Such decisions, therefore, mustbe in accord with the principles of constitutional objectivity andsymphonious with the spirit of the Constitution.

284.5. The Constitution being the supreme instrument envisagesthe concept of constitutional governance which has, as its twinlimbs, the principles of fiduciary nature of public power and thesystem of checks and balances. Constitutional governance, in turn,gives birth to the requisite constitutional trust which must beexhibited by all constitutional functionaries while performing theirofficial duties.

284.6. Ours is parliamentary form of Government guided bythe principle of collective responsibility of the Cabinet. The Cabinetowes duty towards the legislature for every action taken in anyof the Ministries and every individual Minister is responsible forevery act of the Ministry. This principle of collective responsibilityis of immense significance in the context of “aid and advice”. If awell-deliberated legitimate decision of the Council of Ministers isnot given effect to due to an attitude to differ on the part of the

Lieutenant Governor, then the concept of collective responsibilitywould stand negated.

284.7. Our Constitution contemplates meaningful orchestrationof federalism and democracy to put in place an egalitarian socialorder, classical unity in contemporaneous diversity and apluralistic milieu in eventual cohesiveness without losing identity.Sincere attempts should be made to give full-fledged effect toboth these concepts.

284.8. The constitutional vision beckons both the Central and theState Governments alike with the aim to have holistic edifice.Thus, the Union and the State Governments must embrace acollaborative federal architecture by displaying harmoniouscoexistence and interdependence so as to avoid any possibleconstitutional discord. Acceptance of pragmatic federalism andachieving federal balance has become necessity requiringdisciplined wisdom on the part of the Union and the StateGovernments by demonstrating pragmatic orientation.

284.9. The Constitution has mandated federal balance whereinindependence of certain required degree is assured to the StateGovernments. As opposed to centralism, balanced federalstructure mandates that the Union does not usurp all powers andthe States enjoy freedom without any unsolicited interference fromthe Central Government with respect to matters which exclusivelyfall within their domain.

284.10. There is no dearth of authorities with regard to the methodand approach to be embraced by constitutional courts whileinterpreting the constitutional provisions. Some lay more emphasison one approach over the other, while some emphasise that amixed balance resulting in unique methodology shall serve asthe best tool. In spite of diverse views on the said concept, whatmust be kept primarily in mind is that the Constitution is dynamicand heterogeneous instrument, the interpretation of which requiresconsideration of several factors which must be given their dueweightage in order to come up with solution harmonious withthe purpose with which the different provisions were introducedby the Framers of the Constitution or Parliament.

284.11. In the light of the contemporary issues, the purposivemethod has gained importance over the literal approach and theconstitutional courts, with the vision to realise the true and ultimatepurpose of the Constitution not only in letter but also in spirit andarmed with the tools of ingenuity and creativity, must not shy awayfrom performing this foremost duty to achieve constitutionalfunctionalism by adopting pragmatic approach. It is, in way,exposition of judicial sensibility to the functionalism of theConstitution which we call constitutional pragmatism. The spiritand conscience of the Constitution should not be lost in grammarand the popular will of the people which has its legitimacy in ademocratic set-up cannot be allowed to lose its purpose in simplesemantics.

284.12. In the light of the ruling of the nine-Judge Benchin NDMC [NDMC v. State of Punjab, (1997) 7 SCC 339] , it isclear as noonday that by no stretch of imagination, NCT of Delhican be accorded the status of State under our presentconstitutional scheme. The status of NCT of Delhi is sui generis,a class apart, and the status of the Lieutenant Governor of Delhiis not that of Governor of State, rather he remains anAdministrator, in limited sense, working with the designation ofLieutenant Governor.

284.13. With the insertion of Article 239-AA by virtue of theSixty-ninth Amendment, Parliament envisaged representativeform of Government for NCT of Delhi. The said provision intendsto provide for the Capital directly elected Legislative Assemblywhich shall have legislative powers over matters falling within theState List and the Concurrent List, barring those excepted, and amandate upon the Lieutenant Governor to act on the aid and adviceof the Council of Ministers except when he decides to refer thematter 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 theNational Capital Territory of Delhi with respect to any mattersenumerated in the State List and the Concurrent List. At the sametime, the Legislative Assembly of Delhi also has the power tomake laws over all those subjects which figure in the ConcurrentList and all, but three excluded subjects, in the State List.

284.15.A conjoint reading of clauses (3)(a) and (4) of Article239-AA divulges that the executive power of the Government ofNCTD is coextensive with the legislative power of the DelhiLegislative Assembly and, accordingly, the executive power ofthe Council of Ministers of Delhi spans over all subjects in theConcurrent List and all, but three excluded subjects, in the StateList. However, if Parliament makes law in respect of certainsubjects falling in the State List or the Concurrent List,the executive action of the State must conform to the lawmade by Parliament.

284.16. As natural corollary, the Union of India has exclusiveexecutive power with respect to NCT of Delhi relating to thethree matters in the State List in respect of which the power ofthe Delhi Legislative Assembly has been excluded. In respect ofother matters, the executive power is to be exercised by theGovernment of NCT of Delhi. This, however, is subject to theproviso to Article 239-AA(4) of the Constitution. Such aninterpretation would be in consonance with the concepts ofpragmatic federalism and federal balance by giving theGovernmentof NCT of Delhi some required degree ofindependence subject to the limitations imposed by the Constitution.284.17. The meaning of “aid and advise” employed in Article239-AA(4) has to be construed to mean that the LieutenantGovernor of NCT of Delhi is bound by the aid and advice ofthe Council of Ministers and this position holds true solong as the Lieutenant Governor does not exercise his powerunder the proviso to clause (4) of Article 239-AA. The LieutenantGovernor has not been entrusted with any independentdecision-making power. He has to either act on the “aidand advice” of Council of Ministers or he is bound toimplement the decision taken by the President on referencebeing 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 provisorepresents the exception and not the general rule which has to beexercised in exceptional circumstances by the Lieutenant Governorkeeping 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 thenurtured and cultivated idea of respect for representativeGovernment. The Lieutenant Governor should not act in amechanical manner without due application of mind so as to referevery decision of the Council of Ministers to the President.

284.19. The difference of opinion between the LieutenantGovernor and the Council of Ministers should have soundrationale and there should not be exposition of the phenomenon ofan obstructionist but reflection of the philosophy of affirmativeconstructionism and profound sagacity and judiciousness.

284.20. The Transaction of Business Rules, 1993 stipulate theprocedure to be followed by the Lieutenant Governor in case ofdifference between him and his Ministers. The LieutenantGovernor and the Council of Ministers must attempt to settle anypoint of difference by way of discussion and dialogue. Bycontemplating such procedure, the 1993 TBR suggest that theLieutenant Governor must work harmoniously with his Ministersand must not seek to resist them at every step of the way. Theneed for harmonious resolution by discussion is recognisedespecially to sustain the representative form of governance ashas been contemplated by the insertion of Article 239-AA.

284.21. The scheme that has been conceptualised by the insertionof Articles 239-AA and 239-AB read with the provisions ofthe GNCTD Act, 1991 and the corresponding the 1993 TBR indicatesthat the Lieutenant Governor, being the administrative head, shallbe kept informed with respect to all the decisions taken by theCouncil of Ministers. The terminology “send copy thereof to theLieutenant Governor”, “forwarded to the Lieutenant Governor”,“submitted to the Lieutenant Governor” and “cause to be furnishedto the Lieutenant Governor” employed in the said Rules leads tothe only possible conclusion that the decisions of the Council ofMinisters must be communicated to the Lieutenant Governor butthis does not mean that the concurrence of the Lieutenant Governoris required. The said communication is imperative so as to keephim apprised in order to enable him to exercise the power conferredupon him under Article 239-AA(4) and the proviso thereof.

284.22. The authorities in power should constantly remindthemselves that they are constitutional functionaries and they havethe responsibility to ensure that the fundamental purpose ofadministration is the welfare of the people in an ethical manner.There is requirement of discussion and deliberation. The finenuances are to be dwelled upon with mutual respect. Neither ofthe authorities should feel that they have been lionised. Theyshould feel that they are serving the constitutional norms, valuesand concepts.284.23. Fulfilment of constitutional idealism ostracising anythingthat is not permissible by the language of the provisions of theConstitution and showing veneration to its sense, spirit and silenceis constitutional renaissance. It has to be remembered that ourConstitution is constructive one. There is no room for absolutism.There is no space for anarchy. Sometimes it is argued, though ina different context, that one can be “rational anarchist”, but thesaid term has no entry in the field of constitutional governanceand rule of law. The constitutional functionaries are expected tocultivate the understanding of constitutional renaissance byrealisation of their constitutional responsibility and sincereacceptance of the summon to be obeisant to the constitutionalconscience with sense of reawakening to the vision of the greatliving document so as to enable true blossoming of the constitutionalideals. The Lieutenant Governor and the Council of Ministersheaded by the Chief Minister are to constantly remain alive to thisidealism.

285. The Reference is answered accordingly. Matters be placedbefore the appropriate regular Bench.”

21. The lucid and equally well considered opinions have beenrendered by Justice Dhananjay Y. Chandrachud and one of us (JusticeAshok Bhushan) which are substantially on the same lines as the majorityopinion. There is, however, slight difference in approach and to someextent discordant note is expressed in the opinion of Justice AshokBhushan. We would advert to these opinions and as well as the area ofdifference at the appropriate stage.

ARatio of the Judgment:

22. There is some dispute as to the exact ratio laid down in thejudgment of the Constitution Bench as well as the precise principles setout therein. As per the the appellants, the Constitution Bench has acceptedthat in democratic setup where Government is formed on the basisBof elections by the people, it is that Government, through Council ofMinisters, which has the right to govern. Accepting this fundamentalprinciple as enshrined in the Constitution, the Constitution Bench hasrecognised that Legislative Assembly for NCTD has the power to makelaws for the whole or any part of the NCTD, with respect to any of thematters enumerated in the State List or in the Concurrent List. The onlyCexclusion where the Legislative Assembly of NCTD is debarred frommaking laws, are the subject matters of Entries 1, 2 and 18 of the StateList and Entries 64, 65, 66 of the State List insofar as these Entriesrelated to the said Entries 1, 2 and 18. The CB judgment specificallyaddressed the issue of the executive power of the GNCTD, viz., whetherDit is co-extensive with the legislative power. To that extent, the principleof such co-extensive executive power, which is recognised for the Union/Central Government as well as State Governments, has been acceptedin the case of GNCTD as well. Thus, in this hue, the Constitution Benchhas also accepted that the Lieutenant Governor is to act on the aid andadvice of the Council of Ministers in all his acts, except those functionsEwhere the Lieutenant Governor is permitted to exercise his owndiscretion.

23. Since this executive power is co-extensive with legislate power,the appellants emphasised before us that the Constitution Bench hascategorically held that this power extends over all the subjects exceptFthree subjects in the State List, i.e., Entries 1, 2 and 18. The executivepower also extends to all subjects in the Concurrent List. The appellantsalso submitted that this executive power is to the exclusion of the executivepower of the Union with respect to such matters, meaning thereby suchpower exclusively vests with the GNCTD.G24. The aforesaid manner of reading the Constitution Benchjudgment is disputed by the respondents. Insofar as legislative domainof the Legislative Assembly of Delhi is concerned, though the respondentsaccept that the Legislative Assembly has the power to make laws inrespect of all the Entries in List II except matters with respect to Entries1,2 and 18 and Entries 64, 65 and 66 of List II insofar as they relate toHsaid Entries 1, 2 and 18 and also power to legislate in respect of subject

matters contained in the Concurrent List (List III). However, theirsubmission is that this power is not exclusive to the Legislative Assemblyof Delhi. On the contrary, the power of the Union, i.e., Parliament tolegislate on any entries of List II as well as List III remains intact. Further,wherever Union has exercised the power by making laws in respect ofany such subject matter, it is the Union’s law which shall prevail in caseof any repugnancy in the light of Article 246 of the Constitution.

25. Insofar as executive power of the GNCTD is concerned, thesubmission of the respondents is that though the Constitution Bench hasheld that such executive power is co-extensive with the legislative power,but it has nowhere held that such power is exclusively conferred uponthe GNCTD, i.e., to the exclusion of the Union. Here also, according tothe respondents, power of the Union remains intact, which is clear fromthe 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 Counselwho appeared for Union of India in different appeals are of the followingnature:

27. It is submitted that two primary contentions had been raisedon behalf of the Government of NCT of Delhi before the Delhi HighCourt as well as before this Court. It had been contended that:-

(i) Article 239 has no applicability whatsoever in the case of NCTof Delhi; and

(ii) NCT Delhi deserves to be treated as State and not as aUnion Territory because it has an elected Council of Ministerslike any other State.

28. It is argued that the above-mentioned contentions had beenraised on behalf of the Government of NCT of Delhi only with view toclaim exclusive Executive jurisdiction in relation to Entries in List II andList III of the 7[th] Schedule of the constitution of India (except matterswith respect to Entries 1, 2 and 18 of the State List and Entries 64, 65and 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 anelected Council of Ministers in NCT Delhi, it should be treated asequivalent to State. It was in support of this contention raised byGNCTD that the prayer for non-applicability of Article 239 in the caseof NCT Delhi had also been made.

A29. On the other hand, on behalf of the Union of India, it had beencontended before this Court that the Scheme in the Constitution of Indiaenvisages at the threshold – vestige of executive power in the Presidentof India under Article 53 of the Constitution of India to be exercised bythe President on the aid and advice of the Union Council of Ministers. Itis only after the vestige of the executive power takes place under ArticleB53 of the Constitution of India that the subsequent provisions of Article73 and Article 246 define the extent of Executive and Legislative powersof 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 thesame manner, the provision of Article 152 applies the same rule of vestingCof the executive power in relation to all items mentioned in List II of the7[th] Schedule, in the Governor of any State to be exercised by the Councilof Ministers of the said State Government. In other words, it had beensubmission of both Government of NCT of Delhi and Union of Indiabefore the constitution Bench of this court that unless and until this Courtaccepts the claim of the Government of NCT of Delhi that NCT DelhiDwould deserve to be treated as State, the claim that Exclusive ExecutiveJurisdiction in relation to all items in List II (except matters with respectof Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of thatList insofar as they relate to the said Entries 1, 2 and 18 would vest inNCT Delhi – could not be accepted and would deserve to be rejected.EIt is argued that the claim of GNCTD that ‘State’ is specifically rejectedby the Constitution Bench.

30. Further, having regard to the critical fact of the NCT Delhibeing the National Capital and all eventual responsibilities rest on theshoulders of the Union Government, the President of India shall continueFto 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 asthey relate to the said Entries e,w and 18 and shall continue to possessthe non-exclusive executive jurisdiction in relation to all other entries inList II as well as List III of the Seventh Schedule.G31. The respondents further argued that there are three prominentfeatures of the judgment of this Court in the case of Rai Sahib RamJawaya Kapur & Ors. v. State of Punjab[3]. Those prominent threefeatures are:-

3 AIR 1995 SC 549H

(i) There has to be vestige of executive power in any Governmentbefore it makes any claim to exercise the said executive powerbefore framing of any legislation. It paragraphs 12 and 14 of thesaid judgment in Ram Jawaya Kapur’s case, this Court hasreferred to the vestige of executive power in the President ofIndia under Article 53 and in the Governor of each State underArticle 152 of the Constitution of India.

(ii) Having considered the above-mentioned aspect of vestige ofexecutive power in the Government, this Court held that withreference to all the Entries in List I, the Union Government shallhave the Exclusive Executive Jurisdiction co-extensive with thelegislative power and would be able to exercise the said executivepower without framing any legislation. Similarly, the State shallhave executive power in relation to subjects in List II and List IIIof the Constitution of India.

(iii) However, once the Parliament and/or any State Legislatureframes any legislation, the executive power of the respectivegovernments shall be strictly in accordance with the provisions ofany said legislation. [Para 12 of the judgment in Ram JawayaKapur]

32. The above-mentioned third proposition as has been held bythis Court in Ram Jawaya Kapur’s judgment, has been reiterated invarious subsequent judgments of this Court including in the judgment ofthe Constitution Bench of this court in the present case on July 04, 2018where the following dictum had been incorporated:-

“……..277 ….(xv)…..However, if the Parliament makes law inrespect of certain subjects falling in the State List or the ConcurrentList, the executive action of the State must conform to the lawmade by the Parliament…….”

33. The respondents point out that in all the three opinionsconstituting the judgment dated July 04, 2018, this Court has specificallyand categorically rejected both the above-mentioned contentions raisedon behalf of the NCT Delhi and has categorically held that Article 239continues to apply to NCT Delhi and further that NCT Delhi is not aState but continues to remain Union Territory. Reference in this regardmay be made to the following paras:

“196. Thus, NDMC [NDMC v. State of Punjab, (1997) 7 SCC339] makes it clear as crystal that all Union Territories under ourconstitutional scheme are not on the same pedestal and as far asNCT of Delhi is concerned, it is not State within the meaning ofArticle 246 or Part VI of the Constitution. Though NCT of Delhipartakes unique position after the Sixty-ninth Amendment, yetin sum and substance, it remains Union Territory which isgoverned by Article 246(4) of the Constitution and to whichParliament, in the exercise of its constituent power, has given theappellation of the “National Capital Territory of Delhi”.

xxxxxx

201. In the light of the aforesaid analysis and the ruling of thenine-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 State under ourpresent constitutional scheme and the status of the LieutenantDGovernor of Delhi is not that of Governor of State, rather heremains an Administrator, in limited sense, working with thedesignation 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 aUnion Territory appointed by the President under Article 239;”

“Section 3 provided for Legislative Assembly. Section 18 providedfor the extent of legislative power in the following terms:

“18. Extent of legislative power.—(1) Subject to the provisionsof this Act, the Legislative Assembly of the Union Territorymay make laws for the whole or any part of the Union Territorywith respect to any of the matters enumerated in the State Listor the Concurrent List in the Seventh Schedule to theConstitution insofar as any such matter is applicable in relationto Union Territories.

(2) Nothing in sub-section (1) shall derogate from the powersconferred on Parliament by the Constitution to make laws withrespect to any matter for the Union Territory or any partthereof.”

Sub-section (1) of Section 18 was similar in language to Article239-AA(3)(a), without the exclusion of matters relating to Entries1, 2 and 18 and Entries 64, 65 and 66. Sub-section (2) was similarin language to Article 239-AA(3)(b). Section 21 provided that ifthere was any inconsistency between law made by Parliamentand law made by the Legislative Assembly, the law made byParliament would prevail to the extent of repugnancy [this provisionis similar in nature to Article 239-AA(3)(c)].

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

Authored by Justice Ashok Bhushan:

559. After examining the constitutional scheme delineated byArticle 239-AA, another constitutional principle had been laid downby the Constitution Bench that Union Territories are governed byArticle 246(4) notwithstanding their differences in respective set-ups and Delhi, now called the “National Capital Territory of Delhi”is yet Union Territory. The Constitution Bench had alsorecognised that the Union Territory of Delhi is in class by itself,certainly not State. Legislative power of Parliament was held tocover Union Territories including Delhi.

583. The submission of the appellants that proviso to clause (4)of Article 239-AA envisages an extreme and unusual situationand is not meant to be norm, is substantially correct. The exercise

Aof power under the proviso cannot be routine affair and it is onlyin cases where the Lieutenant Governor on due consideration ofa particular decision of the Council of Ministers/Ministers, decidesto make reference so that the decision be not implemented. Theoverall exercise of administration of the Union Territory isconferred on the President, which is clear from the provisionsBcontained in Part VIII of the Constitution. Although, it wascontended by the appellant that Article 239 is not applicable withregard to NCTD after Article 239-AA has been inserted in theConstitution. The above submission cannot be accepted on accountof the express provisions which are mentioned under Article 239-CAA and Article 239-AB itself. Article 239-AA clause (1) itselfcontemplates that Administrator appointed under Article 239 shallbe designated as the Lieutenant Governor. Thus the Administratorappointed under Article 239 is designated as the LieutenantGovernor. Article 239-AB is also applicable to NCTD. Article239-AB in turn refers to any apply Article 239. The provisionsDcontained in Part VIII of the Constitution have to be looked into inits entirety. Thus, all the provisions of Part VIII have to becumulatively read while finding out the intention of the Constitution-makers, which makes it clear that Article 239 is also applicable toNCTD.”

34. From the above, contention raised is that the necessary andinevitable position which emerges is that when in paragraph 217, 218and 219, the majority judgment, acknowledged the exclusive Executivejurisdiction of the Union Government in relation to Entries 1, 2 and 18 ofList II (and Entries 64, 65 and 66 of that List insofar as they relate to theFsaid Entries 1,2 and 18) of the Seventh Schedule, this Court did not andcould not have held that “exclusive” executive jurisdiction vests with theGovernment of NCT of Delhi in relation to all other entries in List II ofthe Seventh Schedule.35. On the contrary, argued the appellants, this Court has held theGexistence and vestige of non-exclusive Executive Jurisdiction in relationto the remaining entries of List II that of List III for NCTD, since thiscourt has categorically held that NCTD is Union Territory and not aState, Article 239 continues to apply in relation to NCTD and further thesame principle of Ram Jawaya Kapur of co-extensive executive powerwith the legislative power of any Government also applies to the UnionHgovernment in relation to the Union Territory of NCTD.

36. After highlighting the above aspect, submission on behalf ofUnion of India/Lieutenant Governor is that the true and correct scopeand interpretation of Article 239AA in relation to NCTD in the entireconstitutional scheme (and as laid down in the judgment dated July 04,2018 passed by the Constitution Bench of this Court including in paras217, 218 and 219 of the majority judgment), brings into existence theposition as tabulated below:

37. It is also submitted that it is neither compatible nor can theargument co-exist that even when the Constitution Bench categoricallyrejected the contentions of Government of NCTD, including thecontention that it is State and Article 239 would not apply in the case ofNCT Delhi, it can still be said that Government of NCTD would possessthe 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 andEntries 64,65 and 66 of that List insofar as they relate to the said Entries1,2 and 18) of the Seventh Schedule. Such contention would lead toan anomalous reading of the judgment dated July 04, 2018 passed by theConstitution Bench of this court and would deserve rejection by thisCourt.

38. It is further submitted that the intention of Parliament to conferoverriding executive powers to the Central Government is evident from

Athe provisions of Section 49 of the 1991 Act which empowers the Presidentto exercise general control and to issue directions to the LieutenantGovernor and his Council of Ministers. Section 52 stipulates that allcontracts relating to the administration of the Capital are made in exerciseof the executive power of the Union and suits and proceedings inconnection with the administration can be instituted by or against theBUnion Government. Reliance is placed on paras 86 ad 87 of the opinionauthored 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 ofMinisters:

“49. Relation of Lieutenant Governor and his Ministers toPresi-dent.—Notwithstanding anything in this Act, theLieutenant Governor and his Council of Ministers shall be underthe general control of, and comply with such particulardirections, if any, as may from time to time be given by thePresident.”

“As an incident of control, the Lieutenant Governor and Councilof Ministers must comply with the particular directions issued bythe President. Such directions are obviously issued on the aid andadvice of the Union Council of Ministers.

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

87. This survey of the provisions of the GNCTD Act, 1991 indicatesthat there is significant interface between the President and theLieutenant Governor in matters relating to the administration ofthe Capital. The Lieutenant Governor has been conferred withcertain specific powers by the provisions of the Act including,among them, requirements of seeking the prior recommendationof the President to the introduction of financial Bills. As we haveseen, the Lieutenant Governor has been subjected to widerobligation to reserve Bills for the consideration of the Presidentand in regard to withholding of his assent to Bill which has beenpassed by the Legislative Assembly in comparison with the duties

of Governor of State. Matters such as the presentation of theannual financial statement or supplementary, additional or excessgrants require previous sanction of the President. The Presidenthas been conferred with the power to issue directions in regard tothe official language of the National Capital Territory. TheLieutenant Governor has been vested with the power to act in hisown discretion in matters which fall outside the ambit and powerof the Legislative Assembly and which have been delegated tohim by the President as well as in regard to those matters wherehe is required under law to exercise his own discretion or to act inexercise of judicial or quasi-judicial functions. Rules for the Conductof Business are framed by the President in relation to the NationalCapital Territory, including for the allocation of business. Theywould include the procedure to be followed where there is adifference of opinion between the Lieutenant Governor and theCouncil of Ministers. Section 49, which has non obstanteprovision, subjects the Lieutenant Governor and the Council ofMinisters to the general control of the President and to suchdirections as may be issued from time to time.”

39. Reference is also made to Articles 239AB and 356 of theConstitution of India.

“239AB. Provision in case of failure of constitutionalmachinery.

If the President, on receipt of report from the LieutenantGovernor or otherwise, is satisfied-

(a) that situation has arisen in which the administration of theNational Capital Territory cannot be carried on in accordancewith the provisions of article 239AA or of any law made inpursuance of that article; or

(b) that for the proper administration of the National CapitalTerritory it is necessary or expedient so to do, the President mayby order suspend the operation of any provision of article 239AAor of all or any of the provisions of any law made in pursuance ofthat article for such period and subject to such conditions as maybe specified in such law and make such incidental and consequentialprovisions as may appear to him to be necessary or expedient foradministering the National Capital Territory in accordance withthe provisions of article 239 and article 239AA.

[2019] 3 S.C.R.

A356. Provisions in case of failure of constitutional machinery inState

(1) If the President, on receipt of report from the Governor of theState or otherwise, is satisfied that situation has arisen in whichthe government of the State cannot be carried on in accordanceBwith he provisions of this Constitution, the President may beProclamation

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

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

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

Provided that nothing in this clause shall authorise the PresidentEto assume to himself any of the powers vested in or exercisableby High Court, or to suspend in whole or in part the operation ofany provision of this Constitution relating to High Courts…..”

40. On the strength of these provisions it is argued that it isabundantly clear that in the case of States, the Constitution envisagesFthat in case of failure of constitutional machinery, the President (i.e.,the Union Executive) shall ‘assume to himself” the functions of the StateGovernment and the powers vested in the Governor. However, in thecase of Union Territory of Delhi, since the executive power remainsvested in the President and there is no independent exclusive vestage ofexecutive power in the Council of Ministers of NCTD – there was neitherGany occasion nor any requirement for the Constitution makers to providefor in the provisions of Article 239AB – any “assumption of functions”by the Union Executive since the executive power vests in the UnionExecutive itself. Since there is never any exclusive vestage in the Councilof 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 NCTof Delhi the President can suspend the operation of Article 239AA evenin case where the President [i.e. the Union Executive] is satisfied thatit is necessary to do so for proper administration of NCTD.

41. In nutshell, submission on behalf of the Union of India is thatwhen the judgment dated July 04, 2018 passed by the Constitution Benchcomprising three separate opinions is read as whole in the mannerprojected above and there is harmonization of the three opinions todiscern the law which has been laid down by this Court – the legalposition projected by the respondents gets strengthened. As per theappellant, such reading of the judgment dated July 04, 2018 would alsobe in consonance with the observation made in para 144 of the opinionauthored by Justice D.Y. Chandrachud, wherein it has been observedthat there is broad coalescence (“coming together to form one mass orwhole; process of merger of two or more droplets of particles to becomeone single droplet”) between the view expressed in the three opinions inthe 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, RelianceIndustries Limited supported the aforesaid stand taken by the Union ofIndia. He also submitted that no exclusive executive power has beenconferred upon the GNCTD, i.e, to the exclusion of the CentralGovernment. He argued that the Scheme behind Article 239AA of theConstitution was ‘hybrid’ in nature relatable to Lists II and III. Detailedsubmission of Dr. Singhvi in this behalf would be taken note of whiledealing with the issue pertaining to ACB.43. We may point out at this stage that learned senior counselappearing for the Union of India have also argued, in the alternative, thatif the interpretation suggested by them to the aforesaid judgment of theConstitution Bench is not acceptable, the matter needs to be referred tothe Constitution Bench again. To put it differently, the submission is thatif this Bench interprets that the Constitution Bench has held that theexecutive power conferred upon the GNCTD under Article 239AA ofthe Constitution is to the exclusion of the power of the Union, then suchan interpretation given by the Constitution Bench is contrary to the schemeof Article 239AA. Efforts were made to show as to how such view (ifit is the view of the Constitution Bench) would be contrary to not onlythe constitutional scheme, but contrary to specific provisions of the

AGNCTD Act, 1991, particularly Sections 44 as well as Rule 23 of theTransaction of Business Rules. However, we are of the opinion that nosuch reference to the larger Bench is required and, therefore, we havenot reproduced submissions of the learned senior counsel of Union ofIndia on this aspect.

B44. M/s. Kapil Sibal, P.C. Chidambaram, Shekhar Naphade andMs. Indira Jaising argued the matter on behalf of NCTD, appearing indifferent appeals. Insofar as the aforesaid interpretation suggested bylearned counsel appearing for the Union of India is concerned, strongrefutation on behalf of the NCTD is that the judgment, in no uncertainterms, holds that the executive power of NCTD is co-extensive with itsClegislative power. According to them, the Constitution Bench hasspecifically held that this executive power pertains to all the Entries inList II, (except Entries 1, 2 and 18, which are specifically excluded), aswell as all the Entries in the Concurrent List, i.e. List III. Such poweris ‘exclusive’ which belongs to GNCTD to the exclusion of the CentralDgovernment. Specific reference was made to the discussion containedin paragraphs 217 to 219 as well as Conclusions (xv), (xvi) and (xvii) ofthe majority opinion. Attention was also drawn to the discussionscontained in paragraphs 174 to 176, 187 and 239 of the said judgment,which have already been reproduced above.

E45. Expanding the proposition that the Constitution Bench hasalready held that apart from the three explicitly excluded Entries (i.e.Entries 1, 2 and 18 in List II), the Delhi Assembly and GNCTD havelegislative 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 contrarywas clearly repelled by the Constitution Bench. Submission in this behalfFwas that the majority judgment clearly records the submission of theCentral Government in para 38 which reads as under:

“38. The respondents also contend that although Article 239AAconfers on the Legislative Assembly of Delhi the power to legislatewith respect to subject matters provided in List II and List III ofGthe Seventh Schedule, yet the said power is limited by the verysame Article when it employs the phrase “in sofaras any suchmatter is applicable to Union Territories...” and also by specificallyexcluding from the legislative power of the Assembly certainentries as delineated in Article 239AA(3)(a). This restriction, asper the respondents, limits the power of the Legislative Assembly

to legislate and this restriction has to be understood in the contextof conferment of special status.”

46. The above contention is answered specifically in para 214 ofthe majority judgment of the Constitution Bench, where it is held that theDelhi Assembly has Legislative Power with respect to all matters in theState and Concurrent List except “matters with respect to entries whichhave been explicitly excluded from Article 239AA(3)(a)”. Thus, thecontention of the Union of India was that matters in List II and List IIIcan be excluded in two different ways, explicitly and implicitly, on accountof use of the phrase “insofar as any such matter is applicable to UnionTerritories” and the Constitution Bench has negated that argument andheld that power of the Delhi Assembly and Government spans over allsubjects except what has been excluded explicitly.

47. The learned counsel also submitted that at least at seven otherplaces, the majority judgment has made it clear that Delhi Assembly/Government has Legislative/Executive Competence over all subjectsexcept three subjects and as corollary, the executive power of theUnion Government in Delhi is limited to three excluded subjects in ListII. These paragraphs are:

(a) In Para 199, it is observed that executive power of DelhiGovernment is co-terminus with executive power on “all but threesubjects in the State List and all subjects in the Concurrent List”.

(b) In Para 212, it is held that “sub-clause (a) of clause (3) ofArticle 239AA establishes the power of Delhi Legislative Assemblyto enact laws for the NCT of Delhi with respect to mattersenumerated in the State List and/or Concurrent List except insofaras matters with respect to and which relate to entries 1, 2 and18 of the State List.”

(c) Again, in Para 217, the Court held that on conjoint reading ofclause 3(a) and clause 4 of Article 239AA, it becomes clear thatthe Delhi Government has executive power which extends over“all but three subjects in the State List and all subjects in theConcurrent List”.

(d) To the similar effect are the observation in Para 219 wherethe Court observed that “Executive Power of the Union in respectof NCT of Delhiis confined to the three matters in the State

AList for which the Legislative Power of the Delhi LegislativeAssembly has been excluded under Article 239AA(3)(a)”.

(e) This is again reiterated in the conclusions contained in Para277 (xiv), (xv) and (xvi) as under:

“(xiv) The Legislative Assembly of Delhi also has the powerto make laws over all those subjects which figure in theconcurrent list and all but three excluded subjects, in theState List”

(xv)The executive power of the Council of Ministers of Delhispans over all subjects in the Concurrent List and all, but threeCexcluded subjects, in the State list”.

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

48. This submission was sought to be supported from theconcurring judgment of Justice Chandrachud (by referring to paras 127to 130) which holds that the term “insofar as any such matter is applicableto Union Territory” in not terms of exclusion. Similarly, in paras 71and 72 of the judgment of Justice Bhushan, it has been held that the saidEphrase “is not exclusionary phrase but has been used to facilitateconferment of power on the Delhi Assembly even in respect of entrythat begin with the term State”.

49. It was further submitted that reliance placed by the learnedcounsel appearing for the Union of India on Balakrishnan CommitteeFreport for interpreting the provisions of Article 239AA was totallymisconceived inasmuch as that aspect has already been considered inthe judgment of the Constitution Bench. It was argued that theConstitution Bench has interpreted the provisions of Articles 239, 239AAand 239AB as they apply to NCT of Delhi based on first principles ofconstitutionally mandated representative democracy, which is based onGpopular will. The Constitution Bench has not been constrained by textuallimitations in giving the interpretation. This is best stated in Para 11 ofthe Constitution Bench judgment, the relevant portion of which reads asunder:

“11. ...In the context of the case at hand, the democratic natureof our Constitution and the paradigm of representative participationare undoubtedly comprised in the “spirit of the Constitution”.While interpreting the provisions of the Constitution, the safe andmost sound approach is to read the words of the Constitution inlight of the avowed purpose and spirit of the Constitution so that itdoes not result in an illogical outcome which would havenever been the intention of the Constituent Assembly or theParliament while exercising its constituent power. Therefore, aConstitutional Court, while adhering to the language employed inthe provision, should not abandon the concept of the intention,spirit, the holistic approach and the constitutional legitimateexpectation which combinedly project magnificent facet ofpurposive interpretation. The Court should pose question toitself whether straight, literal and textual approach wouldannihilate the sense of the great living document which is requiredto be the laser beam to illumine. If the answer is in the affirmative,then the constitutional courts should protect the sense and spiritof the Constitution taking aid of purposive interpretation as that isthe solemn duty of the constitutional courts as final arbiters of theConstitution...”

(Emphasis Supplied)

50. Thereafter, in para 15, some portions of the BalakrishnanCommittee are extracted. Then, in para 36, the Court notes the argumentof the Union of India seeking literal/textual interpretation and relianceon Balakrishnan Report. Similar reliance on Balakrishnan Report by theUnion of India is noted in para 47. Thereafter, the Constitution Benchfrom Page 45 to Page 135 has discussed the principles of constitutionalinterpretation that will be used to interpret Article 239AA.

51. In the light of those principles, the Court thereafter hasinterpreted Article 239AA and its various provisions. Insofar asBalakrishnan Committee Report is concerned, it is not accepted asinterpretative tool, as is clear from the following discussion:

“270. There can be no quarrel about the proposition that thereports of the Committee enacting legislation can serve asan external aid for construing or understanding the statute.However, in the instant case, as we have elaborately dealt

Awith the meaning to be conferred on the constitutionalprovision that calls for interpretation, there is no necessity tobe guided by the report of the Committee.”

(Emphasis Supplied)

52. In this context, another submission of the learned counsel forBthe appellants was that, in fact, respondents were trying to re-argue theentire matter and attempt was to impress this Bench to depart from theview taken by the Constitution Bench, which was impermissible havingregard to the provisions contained in Article 145(3) of the Constitutionand in particular the proviso thereof, which reads as under:C

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

Provided that, where the Court hearing an appeal under any ofDthe provisions of this chapter other than Article 132 consists ofless than five Judges and in the course of the hearing of the appealthe Court is satisfied that the appeal involves substantial questionof law as to the interpretation of this Constitution the determinationof which is necessary for the disposal of the appeal, such CourtEshall refer the question for opinion to Court constituted as requiredby this clause for the purpose of deciding any case involving sucha question and shall on receipt of the opinion dispose of the appealin conformity with such opinion”

53. The argument advanced is that after settling the legal positionFwith respect to Article 239AA of the Constitution, the Constitution Benchhas referred the matter back to this Bench for deciding individual cases.This Bench was, therefore, to decide these individual issues in ‘conformity’with the opinion of the Constitution Bench and, therefore, it was notopen to the Union of India to re-argue the case.

54. We have considered the aforesaid submissions with deep senseGof sincerity, objectivity and also keeping in mind various specific issuesthat arise for determination in these appeals.

55. Indubitably, NCTD was, and still remains, Union Territory.This was held by nine Judge Bench judgment in the NDMC case,which legal position is reiterated by the Constitution Bench in the instantH

case as well. However, in spite of NCTD being Union Territory, it hasbeen given special constitution status under Article 239AA. Clause (1)of the said Article creates and recognises such status. This status is toaccord Legislative Assembly in NCTD with certain powers that arealso rcognised in the same provision. The nature of Legislative Assemblyis enumerated in clause (2)(a) of Article 239AA as per which seats inthe Assembly are to be filled by the Members chosen by direction election.In this manner, even when NCTD remains Union Territory, it is givena different status than other Union Territories in respect of whichprovisions of Article 239 apply. It is also different from the status givento Puducherry, another Union Territory which is governed by Article239A of the Constitution. Even for the Union Territory of Puducherry,provision is made for creation of Legislative Assembly. Such power isgiven to the Parliament to enact this kind of law. In exercise of thatpower, the Parliament has enacted an Act which creates LegislativeAssembly which is partly elected and partly nominated. In contrast,conferment of status upon NCTD is by the Constitution itself and is notleft to the Parliament. At the same time, NCTD remains UnionTerritory and is not elevated to the status of ‘State’ governed by PartVI of the Constitution (Articles 152 to 237). Thus, with the creation ofLegislative Assembly as well as elected Government and conferment ofall legislative and executive powers, concept of federalism has beenincorporated in Article 239AA. Article 239AA has been interpreted bythe Constitution Bench keeping in view this principle of federalism. Allthese aspects have been kept in view by the Constitution Bench whiledeciding the status of the NCTD as well as conferment of legislativeand executive powers to the Legislative Assembly and GNCTDrespectively. The CB judgment, therefore, has to be read keeping inview all these parameters as well as the constitutional principles adoptedin interpreting Article 239AA.

56. Insofar as legislative power of the NCTD is concerned, thereis no dispute that it extends to all the subject matters contained in variousEntries 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 Parliamentto legislate on any subject matter contained in List II is not excluded. Infact, 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

AList III. However, there is conferment of such legislative power uponthe Legislative Assembly of NCTD as well. This power is specificallyconferred upon the Legislative Assembly under sub-clause (a) of Article239AA(3). Sub-clause (b) thereof, in no uncertain terms, provides thatconferment of powers upon Delhi Legislative Assembly under sub-clause(a) shall not derogate the powers of Parliament under the Constitution toBmake laws in with respect to any matter for Union Territory or anypart thereof. This sub-clause, therefore, retains the supremacy ofParliament to make laws. What follows is that Parliament has not onlyconcurrent 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 ParliamentCretains its exclusive domain on those subject matters. To this extent,there is departure from the principle of fedaralism inasmuch asParliament has no power to make any laws in respect of the States forthe matters enumerated in List II. Sub-clause (c) of clause (3) of Article239AA takes care of the situation of repugnancy if it arises between thelaw made by the Parliament and the Legislative Assembly of NCTD. InDthat event, the law made by Parliament shall prevail and the law madeby Delhi Legislative Assembly, shall, to the extent of repugnancy, bevoid. First proviso to sub-clause (c), however, saves law made by theLegislative Assembly of Delhi if law made by it has been reserved forthe consideration of President and has received his assent. In that event,Esuch law made by the Legislative Assembly of Delhi shall prevail inNCTD. Notwithstanding, second proviso thereto recognises thesupremacy of the Parliament by giving it power to enact law with respectto same subject matter as the law made by the Delhi Legislative Assemblyand it includes power to make law adding to, amending, varying or evenrepealing the law made by the Legislative Assembly.F

57. As mentioned earlier, insofar as this power of Parliament tomake laws in respect of NCTD is concerned, there is no quarrel. In thisconspectus, we have to find as to whether the CB Judgment held thatinsofar as the executive power of GNCTD is concerned, it is to theexclusion of the Centre, or, as contended by the learned senior counselGappearing for the Union of India, such executive power given to DelhiGovernment is co-extensive with that of Central Government.

58. It is in the aforesaid backdrop that the observations of theConstitution Bench, particularly the majority view, have to be discernedand given an appropriate meaning. Undoubtedly, the majority judgmentH

in the Constitution Bench decides that the executive power of GNCTDis co-extensive with legislative power and it extends over all the subjectsof the lis to accept subjects mentioned in Entries 1, 2 and 18 and it alsoextends to all subjects in List III. This is the clear mandate of theConstitution Bench. The controversy, however, is on the issue as towhether such executive power of GNCTD is to the exclusion of thepower of the Union Government. In this behalf, it may be noted that themajority judgment has held that such executive power of the DelhiGovernment is to the exclusion of the executive power of the Union.On the other hand, in separate judgment rendered by one of us (AshokBhushan, J.), it has been clearly held that the executive power of theUnion Government is co-extensive with that of the Delhi Government.Discussion on this aspect, in the opinion of Ashok Bhushan, J., goes asunder:“84. The appellant relying on Article 73 of the Constitution hadsubmitted that Article 73 lays down the principle that while theremay exist under the Constitution concurrent legislative powers ontwo different federal units, there can never be any concurrentexecutive powers. It was further submitted that the aboveprinciple equally applies to matters listed in List II and List III ofthe Constitution of India for NCTD. Referring to Article 239-AA(3)(b), it is contended that the said provision confers poweron Parliament to enact legislations in matters in both State Listand Concurrent Lists Such power is also available under Article246. However, it does not follow from the above that the saidprovision also confers executive powers in relation to matters inthe State List and Concurrent List. It is further submitted thatParliament may by law confer executive powers in relation tomatters in the Concurrent List on the Union Government for States,it may also do so in relation to NCTD. But, if such thing is notdone, the Union Government will, as general rule, have noexecutive powers in respect of matters under List II (except theexcluded entries) and it is the GNCTD, which shall enjoy exclusiveexecutive powers. We are of the view that the aboveinterpretation as put up by the appellant on constitutional provisionscannot be accepted. The principle is well established that executivepowers coexist with the legislative powers. Reference to Article73 has been made in this context, which need to be noted.Article73 provides as follows:

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

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

(b) to the exercise of such rights, authority and jurisdiction asare exercisable by the Government of India by virtue of anytreaty or agreement:

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

(2) Until otherwise provided by Parliament, State and anyofficer or authority of State may, notwithstanding anything inthis Article, continue to exercise in matters with respect towhich Parliament has power to make laws for that State suchexecutive power or functions as the State or officer or authoritythereof could exercise immediately before the commencementof this Constitution.”

85. The proviso to Article 73(1) provides that the executive powerreferred to in sub-clause (a) shall not, save as expressly providedin this Constitution or in any law made by Parliament, extend inany State to matters with respect to which the legislature of theState has also power to make laws. Obviously, the proviso refersto the Concurrent List where both Parliament and State havepower to make laws. Executive power in reference to ConcurrentList has been deliberately excluded to avoid any duplicacy inexercise of power by two authorities. Article 73 as it stood priorto the Constitution (Seventh Amendment) Act, 1956 containedthe expression after the word State “specified in Part or Part Bof the First Schedule”. Thus, the executive power was excludedof the Union only with regard to Part and Part States alone.Thus, when the Constitution was enforced, executive power ofUnion in reference to Part States was not excluded with regardto Concurrent List also. Part States having been substituted asnow by the Union Territories by the Constitution (SeventhAmendment) Act. The word “State” in proviso to Article 73 cannotbe read to include Union Territory. Reading the words “UnionTerritory” within the word “State” in proviso to Article 73(1) shallnot be in accordance with Scheme of Part VIII (Union Territories)of the Constitution. Union Territories are administered by thePresident. Exercise of executive power of the Union throughPresident 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, incase of difference of opinion, can make reference to the Presidentfor decision and has to act according to the decision given thereon.The President, thus, with regard to particular executive action,which has been referred, has exclusive jurisdiction to take adecision, which both Council of Ministers as well as LieutenantGovernor has to follow. The provision does not indicate that powerof the President is confined only to executive actions which arementioned in List II. When the President, as provided by theconstitutional scheme, is entitled to take executive decision onany matterirrespective of the fact whether such executive decisiontaken by the Council of Ministers or Ministers related to matterscovered by List II and List III, the executive power to Unionthrough President cannot be confined to List II. Overriding powerto the Union even on the executive matters has to be conceded tobe there as per constitutional scheme. It is another matter that forexercise of executive powers by the Union through the Presidentand by the Council of Ministers, headed by the Chief Minister ofNCTD, the Constitution itself indicates scheme which advancesthe constitutional objectives and provide mechanism for exerciseof executive powers, which aspect shall be, however, furtherelaborated while considering clause (4) of Article 239-AA.Legislative power of the Union is coextensive with its executivepower in relation to NCT is further indicated by the provisions ofthe Government of National Capital Territory of Delhi Act, 1991.The insertion of Article 239-AA by the Constitution Sixty-ninthAmendment has been followed by enactment of the Governmentof National Capital Territory of Delhi Act, 1991 which Act wasenacted by Parliament in exercise of power under Article 239-AA(7)(a) of the Constitution. Section 49 of the Act, 1991 providesas follows:

“49. Relation of Lieutenant Governor and his Ministers toPresident.—Notwithstanding anything in this Act, theLieutenant Governor and his Council of Ministers shall be underthe general control of, and comply with such particulardirections, if any, as may from time to time be given by thePresident.”

86. Legislative power of the Union is exercised by the Presidentas per the constitutional scheme and Section 49 itself indicatesthat Parliament clearly envisaged the Council of Ministers andthe Lieutenant Governor shall be under the general control of,and comply with such particular directions issued by the Presidentfrom time to time. The power of the President to issue direction isnot limited in any manner so as to put any restriction on theexecutive power of the Union.

87. The President further is empowered under Section 44 of the1991 Act to make rules for the allocation of business to theMinisters insofar as it is business with respect to which theLieutenant Governor is required to act on the aid and advice ofhis Council of Ministers. As per Article 239-AA sub-clause (4)read with business rules, the manner and procedure of conduct ofbusiness including executive functions of GNCTD has to beadministered. Although the Union ordinarily does not interfere withor meddle with the day-to-day functions of the GNCTD which is intune with the constitutional scheme as delineated by Article 239-AA and to give meaning and purpose to the Cabinet form ofGovernment brought in place in the National Capital of Territory.But as the overriding legislative power of Parliament is concededin the constitutional scheme, overriding executive power has alsoto be conceded even though such power is not exercised by theUnion in the day-to-day functioning of the GNCTD. We thus concludethat executive power of the Union is coextensive on all subjectsreferable to List I and List II on which Council of Ministers andNCTD has also executive powers.”

59. Insofar as opinion of Chandrachud, J. is concerned, there isno categorical discussion on this aspect, though insofar as legislativepower of the Legislative Assembly of Delhi is concerned, that has beenrecognised, which is in conformity with the other two opinions, the aspectof executive power of the Delhi Government has not been elaborated.

Instead, there is detailed discussion on the construction of the provisoto Article 239AA(4). As we have seen, clause (4) deals with theexecutive power of the Council of Ministers of GNCTD. Proviso theretodeals with the situation where there would be difference of opinionbetween the Lieutenant Governor and his Ministers on any matter. Itprovides that in such an eventuality the Lieutenant Governor is supposedto refer the matter to the President for decision and act according to thedecision given thereon by the President. It gives supremacy to thePresident in the matter of executive decisions. Chandrachud, J. hasnoted that NCTD continues to be Union Territory and the UnionGovernment has special interest in the administration of its affairs,which stands exemplified by the provisions of Article 239 and Section 49of the GNCTD Act. Therefore, the provision to Article 239AA(4) mustbe given an interpretation which is marked with sense of fineconstitutional balance. The balance which is drawn must preserve thevital interest of the Union Government in the governance of the NationalCapital while supporting the legitimacy and constitutional status of theCouncil of Minister, which owes collective responsibility to the LegislativeAssembly and which, in its capacity of the executive arm of theGovernment, tenders aid and advise to the Lieutenant Governor under acabinet form of governance. According to the learned Judge, three linesof reasoning emerge in this behalf which are mentioned in the opinion.The first line of interpretation would have the Court interpret theexpression ‘difference of opinion between the Lieutenant Governorand his Council of Ministers on any of the matter’ without reservationor qualification, which would be 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 beread and confined to specific categories. Third interpretation has twofacets. As per the first facet, reference can be made to the Presidentonly after the Lieutenant Governor has made an effort to resolve adifference with Minister or with Council of Ministers by seeking aresolution through dialogue and discussion. This is to be done afterfollowing the procedure contained in the Transaction of Business Rules.Second facet relates to the substantive meaning of the expression ‘anymatter’, which would not mean ‘every matter’ or ‘every trifling matter’but only those rare and exceptional matters where the difference is sofundamental to the governance of the Union Territory that it deserves tobe escalated to the President.

ABCDEF

A60. After suggesting the aforesaid three lines of interpretations,the judgment suggests that there is kernel of substance in each ofthem, but pitfalls have to be avoided. It emphasises that the functioningof the institutions must establish constitutional balance which facilitatescooperative governance. Read in this way, the proviso has to be operatedand applied in manner which facilitates and does not obstruct theBgovernance of NCTD. This judgment, thereafter, again emphasises thatthough Delhi has special status, it continues to be Union Territory. Inthat context, the nine Judge Bench decision in NDMC as well as thescheme contained in Article 239 and 239AA as well as the principle ofrepugnancy mentioned in Article 254 of the Constitution are discussed.CDiscussion thereafter would be of some relevance and is, therefore,reproduced below, verbatim:

“138...The principle of repugnancy which Article 254 recognisesbetween the Union and State legislation on matters in theConcurrent List is extended by Article 239-AA [(3)(b) and (3)(c)],both with reference to State and Concurrent List subjects forNCT. Moreover, certain subjects have been expressly carved outfrom the ambit of the legislative authority of the LegislativeAssembly and vested exclusively in Parliament. Executive powersof the Government of NCT being coextensive with legislativepowers, the aid and advice which is tendered to the LieutenantGovernor by the Council of Ministers is confined to those areaswhich do not lie outside the purview of legislative powers. Theseprovisions demonstrate that while adopting the institutions of aCabinet form of Government, the Constitution has, for NCT,curtailed the ambit of the legislative and executive powers,consistent with its status as Union Territory.

139. The exercise of the constituent power to introduce Article239-AA was cognizant of the necessity to protect national interestsinherent in the governance of National Capital. sense ofpermanence and stability was sought to be attributed to thearrangements made for governing Delhi by bringing in aconstitutional amendment. Both in terms of the reach of thelegislative power, as well as in relation to the exercise of executivepower, the special constitutional arrangements for Delhi recognisethat the governance of Delhi implicates sense of national interest.When matters of national interest arise, they would predicate apredominant role for institutions of national governance.

140. Consistent with the need to preserve national interest, itwould not be appropriate to restrict the ambit of the proviso toArticle 239-AA(4) to situations where the action of theGovernment is ultra vires the limits of its executive powers. Thisbecomes evident on construction of the provisions of Section41(1)(i) and Section 44(1)(a) of the GNCTD Act. Clause (i) ofSection 41(1) enables the Lieutenant Governor to act in hisdiscretion on matter which falls outside the purview of the powersconferred on the Legislative Assembly but in respect of whichpowers or functions are entrusted or delegated to him by thePresident. Under Section 44(1)(a), Rules of Business are madeon matters on which the Lieutenant Governor is required to acton the aid and advice of the Council of Ministers. Section 44(1)(a)covers business which is not part of Section 41(1)(i). This isbecause matters which fall within Section 44(1)(i) are not governedby the principle of aid and advice.

141. There is much to be said for not laying down an exhaustivecatalogue of situations to which the proviso applies. Governanceinvolves complexities. In the very nature of things, it would not bepossible for court delivering judgment in the context of theproblems of the day to anticipate situations which may arise infuture. It would be unsafe to confine constitutional provision tostated categories which may affect the resilience of theConstitution to deal with unforeseen situations. Some of theillustrations which may warrant the exercise of the power underthe proviso may shed light on the purpose of the proviso and theobject which it seeks to achieve.

142. There are two constitutional perspectives: first, the operationof the proviso should preserve the national concerns underlyingthe conferment of such power, and second, the exercise of thepower under the proviso must not destroy the essential democraticvalues recognised in Article 239-AA. Thus, it is necessary to laydown the steps which need to be adopted before recourse is takento the proviso. The Transaction of Business Rules indicate insufficiently elaborate terms that when there is difference ofopinion between the Lieutenant Governor and Minister, primarily,an effort should be made to resolve it by mutual discussion. If thisprocess does not yield satisfactory result, the matter can be

referred to the Council of Ministers with whom an attempt ismade to seek satisfactory solution. It is when these two stagesare crossed and difference still persists that the proviso can betaken recourse to by referring the matter to the President. Thesestages which are enunciated in the Transaction of Business Rulesmust be read in conjunction with the authority conferred by Section44 of the GNCTD Act which was enacted in pursuance of Article239-AA(7). Hence the proviso must be read in conjunction withthe law enacted by Parliament and the Transaction of BusinessRules made by the President, to give clarity to the operatingprocedure for invoking the proviso. Moreover, once referenceis made to the President, the Lieutenant Governor is bound by thedecision of the President. The Lieutenant Governor has theauthority to take action which is warranted by emergentcircumstances until the President has taken decision. But beforerecourse is taken to the proviso, the Lieutenant Governor mustmake every effort with the Minister or, as the case may be, theCouncil of Ministers to resolve matter of difference. The natureof the differences which may warrant reference to the Presidentcannot be exhaustively catalogued. But it would be appropriate toconstrue the proviso as protector of national concerns in regardto governance of the NCT. The Lieutenant Governor is watchdogto protect them. The Lieutenant Governor may, for instance, bejustified in seeking recourse to the proviso where the executiveact of the Government of the NCT is likely to impede or prejudicethe exercise of the executive power of the Union Government.The Lieutenant Governor may similarly consider it necessary toinvoke the proviso to ensure compliance with the provisions ofthe Constitution or law enacted by Parliament. There may wellbe significant issues of policy which have bearing on the positionof the National Capital Territory as national Capital. Financialconcerns of the Union Government may be implicated in such amanner that it becomes necessary for the Lieutenant Governor toinvoke the proviso where difference of opinion remainsunresolved. situation of the nature indicated in Rule 23 of theTransaction of Business Rules may well justify recourse to theproviso. The touchstone for recourse to the proviso is that thedifference of opinion is not contrived difference. The matter onwhich difference has arisen must be substantial and not trifling.In deciding whether to make reference, the Lieutenant Governormust always bear in mind the latitude which representativeGovernment possesses to take decisions in areas falling within itsexecutive authority. The Lieutenant Governor must bear in mindthat it is not he, but the Council of Ministers which takes substantivedecisions and even when he invokes the proviso, the LieutenantGovernor has to abide by the decision of the President. TheLieutenant Governor must also be conscious of the fact thatunrestrained recourse to the proviso would virtually transfer theadministration of the affairs of the NCT from its Government tothe Centre. If the expression “any matter” were to be read sobroadly as to comprehend “every matter”, the operation of theproviso would transfer decision-making away from the Governmentof the NCT to the Centre. If the proviso were to be so read, itwould result in situation where the President would deal with areference on every matter, leaving nothing but the husk to theadministration of the Union Territory. Article 239-AB makes aprovision where there is failure of the constitutional machineryin the Union Territory. The proviso to Article 239-AA(4) does notdeal with that situation. Hence, in the application of the proviso itwould be necessary to bear in mind that the Council of Ministersfor the NCT has constitutionally recognised function, as doesthe Legislative Assembly to whom the Council is collectivelyresponsible. The role of the Lieutenant Governor is not to supplantthis constitutional structure but to make it workable in order toensure that concerns of national character which have an innatebearing on the status of Delhi as national Capital are notbypassed. If these fundamental precepts are borne in mind, theoperation of the proviso should pose no difficulty and theintervention of the President could be invoked in appropriate caseswhere matter fundamental to the governance to the UnionTerritory is involved.”

61. Insofar as executive power of the GNCTD is concerned, wefind that the majority judgment authored by Dipak Misra, CJI (as hethen was) clearly holds that it is to the exclusion of the executive powerof the Central Government. That is the effect of the combined readingof paragraphs 214 to 218 of the Constitution judgment. The argument ofthe respondents to the contrary is an attempt to reargue the case.

AHowever, judicial discipline prevents us from embarking upon such ajourney. In fact, it is for this reason the learned counsel appearing forthe Union of India have also argued that the majority opinion is not correctand matter needs to be referred to the larger Bench for reconsideration.This course of action would also not be advisable having regard to theprovisions of Article 145(3) of the Constitution. We, thus, have to proceedBon the premise that the executive power of the Delhi Government extendsto all Entries of List II (except Entries 1, 2 and 18) and Entries 64, 65and 66 of that List insofar as they relate to said Entries 1, 2 and 18 aswell as all the Entries in List III. This power of GNCTD is also to beexclusive, i.e. to the exclusion of the executive power of the CentralCGovernment. At the same time, we may also clarify that while dealingwith the specific issues which arise in these appeals, this Court wouldkeep in mind the provisions of GNCTD Act as well as the Transactionof Business Rules inasmuch as for deciding these issues this Court cannotbe oblivious of the specific provisions contained in the Act and the Rules.

62. Of course, while construing those provisions and applyingthese and other provisions in the context of specific issues, the letterand spirit behind the Constitution Bench judgment on various aspects, towhich all the three opinions concur, would be kept in mind. It is for thisreason we have discussed other two opinions as well, in detail.

EThe Appeals

63. To recapitulate, there are total of nine appeals which haveto be decided by this Court in the present batch of appeals. Seven out ofthese nine appeals have been filed by the GNCTD and remaining twohave been filed by the Union of India. Eight out of these nine appealsFare Civil Appeals and one appeal filed by the Union of India is CriminalAppeal. All the appeals are against the impugned order of the HighCourt of Delhi dated August 04, 2016. The issues which are raised indifferent appeals are summed up below:

64. The first issue is whether the exclusion of “Services” relatableGto Entry 41 of List II of the Seventh Schedule from the legislative andexecutive domain of the NCT of Delhi, vide Notification of theGovernment of India dated May 21, 2015, is unconstitutional and illegal?

65. The second issue is whether the exclusion of the jurisdictionof the Anti-Corruption Branch (ACB) of the NCT of Delhi to investigateoffences committed under the Prevention of Corruption Act, 1987 byH

the officials of Central Government and limiting the jurisdiction of theACB to the employees of GNCTD alone is legal? (These two issuesarise in Civil Appeal No. 2357 of 2017).

66. The third issue is raised in Civil Appeal Nos. 2358, 2359 and2360 of 2017. In all these three appeals, the common issue is whetherthe GNCTD is an “Appropriate Government” under the Commission ofEnquiry 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 underSection 12 of the Delhi Electricity Reforms Act, 2000, the power toissue directions with the State Commission is with the Government ofNCT of Delhi?

Similar issue is the subject matter of Civil Appeal 2361 of 2017,viz. whether the orders of the GNCTD nominating Directors toDistribution Companies in Delhi under the Delhi Electricity ReformsAct, 2000 read with Delhi Electricity Reforms (Transfer Scheme) Rules,2001, without obtaining the concurrence of the Lieutenant Governor arevalid?

68. The fifth issue is common to Civil Appeal No. 2362 of 2017filed by the GNCTD and Civil Appeal No. 2364 of 2017 filed by Unionof India, wherein the issue is whether the Revenue Department of theGNCTD 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 AppealNo. 277 of 2018, pertains to the appointment of Special PublicProsecutors, viz., whether it is the Lieutenant Governor or the GNCTDwhich has the power to appoint the Special Public Prosecutor underSection 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 toEntry 41 of List II of the Seventh Schedule from the legislativeand executive domain of the NCTD, vide Notification datedMay 21, 2015, is unconstitutional and illegal?

114SUPREME COURT REPORTS

A71. 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 thecase on behalf of the GNCTD on this issue, submitted that the majorityjudgment of the Constitution Bench specifically holds that exclusion ofBlegislative/executive power in List II for Assembly/ GNCTD is limitedto only three subjects, i.e. Entry 1 (Public order), Entry 2 (Police) andEntry 18 (Land). Therefore, the issue of exclusion of any other additionalEntry either in List II or in List III would not arise. As consequence,not only legislative power of the Assembly, even the co-extensive executiveCpower in respect of Entry 41 rests with GNCTD. Mr. Chidambaramargued that Entry 41 has two components, namely, State public serviceand State Public Service Commission. Since there is no State PublicService Commission in Delhi, insofar as service personnel in Delhi areconcerned, that would come within the expression ‘State public services’and it is the GNCTD which would exercise its administrative powerDover such employees.

73. Learned counsel drew attention of this Court to the earlierNotification dated September 24, 1998 and submitted that the saidNotification was perfectly in order. We reproduce the same hereunder:

MINISTRY OF HOME AFFAIRSNOTIFICATION

New Delhi, the 24[th] September, 1998

S.O. 853 (E). – In pursuance of the powers conferred underFclause (1) of article 239 of the Constitution, the President herebydirects that subject to his control and until further orders, theLieutenant 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 functionsof the Central Government, to the extent delegated from time toGtime to him by the President, in consultation with the Chief Ministerof the National Capital Territory of Delhi except in those caseswhere, for reasons be recorded in writing, he does not consider itexpedient to do so.

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

GOVT. OF NCT OF DELHI v. UNION OF INDIA

[A. K. SIKRI, J.]

However, this was superseded vide impugned Notification datedMay 21, 2015 which gives power to the Lieutenant Governor in respectof ‘Services’ as well, in addition to ‘Public Order’, ‘Police’ and ‘Land’,which is contrary to the scheme contained in Article 239AA of theConstitution, as interpreted by this Court. This Notification reads asunder:

MINISTRY OF HOME AFFAIRSNOTIFICATION

New Delhi, the 21st May, 2015

S.O. 1368(E).—Whereas article 239 of the Constitution providesthat every Union Territory shall be administered by the Presidentacting, to such extent as he thinks fit, through an administrator tobe 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 ofDelhi shall be called the National Capital Territory of Delhi andthe administrator thereof appointed under article 239 shall bedesignated as the Lieutenant Governor;

And whereas sub-clause (a) of clause (3) of article 239AA statesthat the Legislative Assembly shall have power to make laws forthe whole or any part of the National Capital Territory with respectto any of the matters enumerated in the State List or in theConcurrent List in so far as any such matter is applicable to UnionTerritories except matters with respect to Entries 1, 2 and 18 ofthe State List and Entries 64, 65 and 66 of that List in so far asthey relate to the said Entries 1, 2 and 18; and whereas Entry 1relates to ‘Public Order’, Entry 2 relates to ‘Police’ and Entry 18relates to ‘Land’.

And whereas sub-clause (a) of clause (3) of article 239AA alsoqualifies the matters enumerated in the State List or in theConcurrent List in so far as any such matter is applicable to UnionTerritories. Under this provision, reference may be made toEntry 41 of the State List which deals with the State PublicServices, State Public Service Commission which do not exist inthe National Capital Territory of Delhi.

Further, the Union Territories Cadre consisting of IndianAdministrative Service and Indian Police Service personnel iscommon to Union Territories of Delhi, Chandigarh, Andaman andNicobar Islands, Lakshadweep, Daman and Diu, Dadra and NagarHaveli, Puducherry and States of Arunachal Pradesh, Goa andMizoram which is administered by the Central Government throughthe Ministry of Home Affairs; and similarly DANICS and DANIPSare common services catering to the requirement of the UnionTerritories of Daman & Diu, Dadra Nagar Haveli, Andaman andNicobar Islands, Lakshadweep including the National CapitalTerritory of Delhi which is also administered by the CentralGovernment through the Ministry of Home Affairs. As such, it isclear that the National Capital Territory of Delhi does not have itsown State Public Services. Thus, ‘Services’ will fall within thiscategory.

And whereas it is well established that where there is no legislativepower, 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 StateList being ‘Public Order’, ‘Police’ and ‘Land’ respectively andEntries 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 LegislativeAssembly of the National Capital Territory of Delhi andconsequently the Government of NCT of Delhi will have noexecutive power in relation to the above and further that power inrelation to the aforesaid subjects vests exclusively in the Presidentor his delegate i.e. the Lieutenant Governor of Delhi.

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

“(i) subject to his control and further orders, the LieutenantGovernor of the National Capital Territory of Delhi, shall inrespect of matters connected with ‘Public Order’, ‘Police’,‘Land’ and ‘Services’ as stated hereinabove, exercise thepowers 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 CapitalTerritory of Delhi may, in his discretion, obtain the views of theChief Minister of the National Capital Territory of Delhi inregard to the matter of ‘Services’ wherever he deems itappropriate.

2. In the Notification number F. 1/21/92-Home (P) Estt. 1750dated 8th November, 1993, as amended vide notification dated23rd July, 2014 bearing No. 14036/4/2014-Delhi-I (Pt. File), forparagraph 2 the following paragraph shall be substituted, namely:—

“2. This notification shall only apply to officials and employeesof the National Capital Territory of Delhi subject to theprovisions 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 takeany cognizance of offences against Officers, employees andfunctionaries 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, 1998except as respects things done or omitted to be done before suchsupersession.

[F. No. 14036/04/2014-Delhi-I (Part File)]

RAKESH SINGH, Jt. Secy.”

74. Pertinently, this Notification in respect of ‘Services’, mentionsabout Union Territories cadre consisting of Indian Administrative Serviceand Indian Police Service personnel. There is no dispute that this cadreis common to all the Union Territories and Delhi is only one of them. Itis also not in dispute that this cadre is administered by the CentralGovernment through the Ministry of Home Affairs. The Notificationalso refers to DANICS and DANIPS, which are again common servicescatering to the requirement of various Union Territories, including NCTD.These services are also administered by the Central Government throughthe Ministry of Home Affairs. As is clear from the aforesaid Notification,the aforesaid reasons are given therein thereby making these servicessubject to the control and further orders of the Lieutenant Governor ofNCTD.

A75. Submission of Mr. Chidambaram, however, is that beingcommon cadres, which apply to all Union Territories, undoubtedly, theCentral Government has the power to allocate the personnel to NCTDas well. Likewise, it is also within the powers of the Central Governmentto transfer such personnel from one Union Territory to other, whichwould mean even from NCTD to any other Union Territory. AccordingBto him, that was the only function of the Joint Cadre Authority under theAll India Services (Joint Cadre) Rules, 1972 inasmuch as Rule 5(1) thereinstipulates to: “determine the names of the members of All IndiaServices who may be required to serve from time to time in connectionwith affairs of each of the constituent States and the period orCpurpose for which their services shall be available to thatGovernment”. However, submits the counsel, once particular officersare allocated to NCTD, during their tenure in NCTD, it is within thepowers of the GNCTD to assign them to particular departments. Insupport of this submission, he referred to the following Rules:

D“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 ofRepresentatives referred to in rule 4.

Exxxxxx

4. Committee of representatives -

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

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

GThe Indian Administrative Service (Cadre) Rules, 1954

2. Definitions:- In these rules, unless the context otherwiserequires -

xxxxxx

(c) ‘State’ means State specified in the First Schedule to theconstitution and includes Union Territory.

(d) ‘State Government concerned’, in relation to Joint cadre,means the Joint Cadre Authority.

7. Postings – All appointments to cadre posts shall be made:-

(a) in the case of State cadre, by the State Govt.; and

(b) in the case of Joint Cadre, by the State Governmentconcerned.

(c)(i) The Central Government, in consultation with the StateGovernment or State Governments concerned, may determine thetenure of all or any of the cadre posts specified for the Stateconcerned in item 1 of the Schedule to the Indian AdministrativeService (Fixation of Cadre Strength) Regulation, 1955.

(c)(ii) cadre officer, appointed to any post for which the tenurehas been so determined, shall hold the minimum tenure as prescribedexcept in the event of promotion, retirement, deputation outsidethe State or training exceeding two months.

(c)(iii) An officer may be transferred before the minimumprescribed tenure only on the recommendation of Committeeon Minimum Tenure as specified in the Schedule annexed to theserules.”

11A. Authority to exercise certain powers in respect ofmembers of the Service serving in connection with theaffairs of the States constituting Joint Cadre:- the powersof 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 underRules 7, 10 and 11, in relation to the members of the Serviceserving in connection with the affairs of any of the ConstituentStates shall be exercised by the Government of that State.”

Submission was that as per the aforesaid Rules, posting is doneby the State Government once the Central Government allocatesparticular employees to particular State and since this principle of

Afederalism is accepted and given imprimatur by the Constitution Benchin case of NCTD as well, the aforesaid principle shall equally apply.

76. As per him, the complete scheme which becomes clear fromthe above is that while it is the Joint Cadre Authority where Delhi has itsown separate representative which allocates officers of the AGMUTBCadre to NCT of Delhi, the post to which such officer is posted/deputedis determined by the GNCTD. Consequently, if within the GNCTD, thesaid officer has to be posted from one post to the another, it is the GNCTDalone which has the powers under the Service Rules. This is inconsonance with the position that prevails in the states of ArunachalPradesh, Mizoram and Goa which are also members of the Joint CadreCin the AGMUT Cadre and who like the NCTD and unlike other UnionTerritories have representative in the Joint Cadre Authority.

77. Likewise, insofar as DANICS is concerned, the submission isthat under the Delhi, Andaman & Nicobar Islands, Lakshasweep, Daman& Diu and Dadra & Nagar Haveli Civil Services Rules, 2003, sameDconsequence follows. Following Rules were referred to:

“11. Appointment to the Service -

All appointment to the Service shall be made by the AppointingAuthority to the Junior Administrative Grade-I or JuniorEAdministrative Grade-II or Selection Grade or Entry Grade ofthe Service and not against any specific post included in theService.

12. Posting -

Every member of the Service allocated to an AdministrationFshall, unless he is appointed to an ex-cadre post, or is otherwisenot available for holding duty post owing to the exigencies ofthe public service, be posted against duty post under theAdministration by the Administrator concerned.

13. Allocation of members of the Service -G The Government shall, from time to time, allocate member ofthe Service to any Administration for posting in terms of rule12.”

78. It is argued that under the DANICS Rules, as per Rule 2(a)‘Administration’ means the GNCTD, as per Rule 2(b) ‘Administrator’means the Administrator of NCTD and as per Rule 2(k) ‘Government’means the Government of India. Thus, while it is the Government ofIndia that makes an officer available to GNCTD under Rule 13, theposting of that DANICS officer within the NCTD is to be made by theAdministrator on the aid and advice of the Council of Ministers.

79. Mr. C.A. Sundaram, learned senior counsel who argued onbehalf of the Union of India on this particular issue, submitted that Entry41 in List II cannot be applied to the NCTD as the said Entry is confinedto ‘State public services’ and ‘State Public Service Commission’.Indubitably, there was no Public Service Commission in NCTD. Theother part refers to State Public Services whereas the services in respectof which the impugned Notification dated May 21, 2015 is issued, pertainsto other All India Services or combined/joint cadre of Union Territorieswhich are not State public services. He also argued that certain mattersfall within the discretionary powers of the Lieutenant Governor wherehe does not have to act on the aid and advise of the Council of Ministersof GNCTD. This was such discretionary matter and, therefore, felloutside NCTD. In the alternative, he submitted that even if the LieutenantGovernor has no discretion, since the subject matter is not covered byEntry 41 of List II, the Lieutenant Governor is not supposed to act on theaid and advise of the Central Government and not that of GNCTD.Focusing on the aspect of discretionary power of the Lieutenant Governor,Mr. Sundaram referred to Section 41 of the GNCTD Act which stipulatesthe 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 matter:-

(i) which falls outside the purview of the powers conferred onthe legislative Assembly but in respect of which powers orfunctions are entrusted or delegated to him by the President;or

(ii) in which he is required by or under any law to act in hisdiscretion or to exercise any judicial functions.

(2) If any question arises as to whether any matter is or is not amatter as respects with the Lieutenant Governor is by or under

any law required to act in his discretion, the decision of theLieutenant Governor thereon shall be final.

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

80. According to Mr. Sundaram, discretion was conferred uponthe Lieutenant Governor in respect of this subject matter by virtue ofclause (i) of sub-section (1) of Section 41 as the matter falls outside theCpurview of the powers conferred on the Legislative Assembly. Therefore,the President was competent to issue Notification dated May 21, 2015thereby entrusting the powers and functions in respect of ‘Services’ tothe Lieutenant Governor. According to him, this was supported by Rule46 of the Transaction of Business Rules which reads as under:“46. (1) With respect to persons serving in connection with theadministration of the National Capital Territory, the LieutenantGovernor shall, exercise such powers and perform such functionsas may be entrusted to him under the provisions of the rules andorders regulating the conditions of service of such persons or byany other order of the President in consultation with the ChiefMinister, if it is so provided under any order issued by the Presidentunder article 239 of the Constitution.

(2) Notwithstanding anything contained in sub-rule (1) theLieutenant Governor shall consult the Union Public ServiceCommission on all matters on which the Commission is requiredto be consulted under clause (3) of article 320 of the Constitution;and in every such case he shall not make any order otherwisethan in accordance with the advice of the Union Public ServiceCommission unless authorised to do so by the Central Government.

(3) All correspondence with Union Public Service Commissionand the Central Government regarding recruitment and conditionsof service of persons serving in connection with the administrationof National Capital Territory shall be conducted by the ChiefSecretary or Secretary of the Department concerned under thedirection of the Lieutenant Governor.”

81. Insofar as Notification dated September 24, 1998 is concerned,Mr. Sundaram pointed out that this Notification was issued under Article239 of the Constitution. In any case, this was also issued by the Presidentand was almost to the same effect as Notification dated May 21, 2015,inasmuch as here also the President had delegated the powers to theLieutenant Governor in respect of ‘Public order’, ‘Police’ as well as‘Services’. Therefore, all these subjects were put at par. The onlyother requirement specified in the said Notification was that theLieutenant Governor was to exercise the powers and discharge thefunctions of the Central Government ‘in consultation with the ChiefMinister of the NCTD’. It was only ‘consultation’ which would notmean ‘concurrence’. The Notification dated May 21, 2015 broughtabout change only in respect of such consultative process, i.e.‘consultation’ with the Chief Minister, as being done away with. Thisbecame necessitated, according to him, because of the problems whichthe Lieutenant Governor was facing even in undertaking consultationswith the Chief Minister. Therefore, now it is entirely within the discretionof the Lieutenant Governor to have the views of the Chief Minister ornot. To that extent this Notification is only clarification of the earlierNotification dated September 24, 1998 and in substance the legalimplications of this Notification were exactly the same as Notificationdated September 24, 1998. Learned counsel also argued that theConstitution provides for services of the States and services of the Union.All Union Territories services are services of the Union, as held in arecent judgment of this Court in Bir Singh v. Delhi Jal Board andOthers[4]. For example, in Delhi, IAS, DANICS & DASS cadre, as alsoteachers and doctors, are services of the Union and the recruitmentrules have been framed with the approval of the President or ofLieutenant Governor as nominee of the President. The learned counselalso pointed out that Rule 46 of the Transaction of Business Rules, alongwith the delegation made by the President under Article 239AA of theConstitution from time to time, has always been governing the processof transfer/posting of officers working with the GNCTD.

82. Fervent plea of Mr. Sundaram was that just and fairmechanism could be similar to the one which prevailed in earlier yearsprior to 2015, viz. that the transfers and postings of Secretaries, HoDsand other officers in the scale of Joint Secretary to the Government ofIndia and above can be done by the Lieutenant Governor and the file 4 (2018) 10 SCC 312

124SUPREME COURT REPORTS

Asubmitted 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 andthe Chief Minister, the view of the Lieutenant Governor should prevailand the Ministry of Home Affairs can issue suitable notification in thisregard. However, for Grade IV, III, II and I DASS officials, there is anBexisting delegation of powers where for Grades IV and III, all transfersand postings are done by the Secretary (Services); for Grades II and I,the transfers and postings are done by the Chief Secretary. For greatertransparency, Civil Services Board can be formed which can be headedby the Secretary (Services) for Grades IV and III officials; by the ChiefCSecretary for Grades II and I level officers. The Board can decide onthe transfer and postings of these DASS cadre officers. He also pointedout that for IAS officers, Civil Services Board headed by the ChiefSecretary already exists and the recommendations of the same are beingsent to the Lieutenant Governor. Similar Board can also be formed forDANICS officers. His suggestion was that similar mechanism ofDServices Boards can be made for other departments such as Educationand Health. Likewise, the services of the Union Territories being underthe Ministry of Home Affairs, an advisory can be given to that Ministryto make these guidelines under the Transaction of Business Rules and toprovide consultation by the Lieutenant Governor with the Chief MinisterEup to certain level of officers.

83. In rejoinder, Mr. Chidambaram submitted that the aforesaidargument of the Union ignores the judgment of this Court in Union ofIndia v. Prem Kumar Jain and Others[5] wherein four Judge Benchof this Court held that the ‘State’ includes Union Territory for theFpurposes of Article 312 of the Constitution in the following manner:

“8. It follows therefore that, as and from November 1, 1956, whenthe Constitution (Seventh Amendment) Act, 1956, came into force,the President had the power to adapt the laws for the purpose ofbringing the provisions of any law in force in India into accordGwith the provisions of the Constitution. It was under that powerthat the President issued the Adaptation of Laws (No. 1) Order,1956, which, as has been shown, substituted new clause (58) inSection 3 of the General clauses Act providing, inter alia, that theexpression “State” shall, as respects any period after the

5 (1976) 3 SCC 743H

commencement of the Constitution (Seventh Amendment) Act,1956, mean “a State specified in the First Schedule to theConstitution and shall include Union Territory”. It cannotbe said with any justification that there was anything repugnant inthe subject or context to make that definition inapplicable. Byvirtue of Article 372A(1) of the Constitution, it was that definitionof the expression “State” which had effect from the first day ofNovember, 1956, and the Constitution expressly provided that itcould “not be questioned in any court of law”. The High Courttherefore went wrong in taking contrary view and inholding that “Union territories are not ‘States’ for purposesof Article 312(1) of the Constitution and the preamble tothe Act of 1951". That was why the High Court erred in holdingthat the definition of “State” in the Cadre Rules was ultra viresthe All India Services Act, 1951 and the Constitution, and that theUnion territories cadre of the service was “not common to theUnion and the States” within the meaning of Article 312(1) of theConstitution, and that the Central Government could not make theIndian Administrative Service (Cadre) Rules, 1954 in consultationwith the State Governments as there were no such governmentsin the Union territories.

(emphasis supplied)”

The above decision has also been noted, with approval, inparagraph 125 in the opinion of Chandrachud J. in the Constitution Benchjudgment.

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 IndianAdministrative Service, Indian Police Service. Likewise, DANICS andDANIPS are common services catering to the requirement of variousUnion Territories including NCTD.

(b) These are All India Services and the cadre in question is UnionTerritory Cadre which is common of all Union Territory and Delhi is oneof them. Therefore the Cadre does not pertain to GNCTD itself. Thiscadre is administered by the Central Government through Ministry ofHome Affairs.

(c) There is no dispute that insofar as allocation of personnelbelonging to the aforesaid services is concerned, it is the CentralGovernment thorough Ministry of Home Affairs which has to pass thenecessary orders. Similarly, Central Government is empowered totransfer such personnel from one Union Territory to other.

B85. The fulcrum of dispute pertains to the control of GNCTDover these personnel after they are allocated to the NCTD. As perGNCTD, it has the power to post such work force at different placesand 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 ofEntry 41 of List II in the Seventh Schedule of the Constitution. TheCsubmission on behalf of the Union of India is that it comes within thediscretionary powers of the LG as the subject matter is not covered byEntry 41 of List II and, therefore, by virtue of Section 41 of GNCTDAct, the LG is empowered to act in his discretion in such matter.

86. In the aforesaid backdrop, the first and foremost question isDwhether ‘services’ fall outside the purview of legislative assembly ofNCTD? To put it otherwise, whether Entry 41 of List II does not coverthe subject matter? Entry 41 of List II deals with ‘State Public Services’and ‘State Public Service Commission’. It is undisputed that State PublicService Commission does not exist in NCTD. When we are dealingEwith All India Services and DHANICS Services etc., it is also doubtfulto mention it as State Public Service.87. The further issue, however, is to see as to whether it is withinthe powers of GNCTD to assign such officers to particular departments,once they are allocated to the NCTD by the joint cadre authority. As perFRule 2(c) of Indian Administrative Services (Cardre) Rules, 1954, Stateincludes Union Territory. Rule 7 deals with posting and, inter alia,stipulates that in the case of joint cadre, posting shall be by the StateGovernment concerned.In the context of Article 312 of the Constitution,this Court has held in Prem Kumar Jain that Union Territories areStates for the purpose of the said Article.G

88. Similar is the position in respect of DANICS. Rule 11 ofDANICS Rules, 2003 empowers Administrator of the administrationconcerned i.e. Union Territory, to make these postings. On the otherhand, in the context of NCTD, the Administrator, namely, LG is supposedto function in this behalf on the aid and advice of the Council of Ministers.HThat is the dicta of Constitution Bench judgment. Therefore, it becomes

equally doubtful as to whether it falls within the discretionary powers ofthe L.G.

89. The aforesaid discussion leads to very peculiar situation.The appellant has endeavoured to assume the executive power in respectof ‘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 otherhand, it also cannot be said that once the manpower is allocated to UnionTerritory of Delhi, the GNCTD should not have any power to deal withsuch employees, in view of C.B. Judgment. In such scenario, and toavoid any conflict of exercise of powers between the LG on the onehand (as representative of the Central Government) and the Council ofMinisters with Chief Minister as Head on the other hand, we are of theopinion that for the smooth functioning of the system, it is necessary tocarve out just and fair mechanism. Therefore, we are inclined to acceptthe suggestion of Mr. Sundaram in this behalf as recorded above. In thisbehalf, we reiterate the position as under:

90. The transfers and postings of Secretaries, HODs and otherofficers in the scale of Joint Secretary to the Government of India andabove can be done by the Lieutenant Governor and the file submitted tohim directly. For other levels, including DANICS officers, the files canbe routed through the Chief Minister to Lieutenant Governor. In case ofdifference of opinion between the Lieutenant Governor and the ChiefMinister, the view of the Lieutenant Governor should prevail and theMinistry of Home Affairs can issue suitable notification in this regard.However, for Grade IV, III, II and I DASS officials, there is an existingdelegation of powers where for Grades IV and III, all transfers andpostings are done by the Secretary (Services); for Grades II and I, thetransfers and postings are done by the Chief Secretary. For greatertransparency, Civil Services Board can be formed which can be headedby the Secretary (Services) for Grades IV and III officials; by the ChiefSecretary for Grades II and I level officers. The Board can decide onthe transfer and postings of these DASS cadre officers. He also pointedout that for IAS officers, Civil Services Board headed by the ChiefSecretary already exists and the recommendations of the same are beingsent to the Lieutenant Governor. Similar Board can also be formed forDANICS officers. His suggestion was that similar mechanism ofServices Boards can be made for other departments such as Educationand Health. Likewise, the services of the Union Territories being under

Athe Ministry of Home Affairs, an advisory can be given to that Ministryto make these guidelines under the Transaction of Business Rules and toprovide consultation by the Lieutenant Governor with the Chief Ministerup to certain level of officers.

91. We may add that insofar as disciplinary authorities areBconcerned, 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 ofIndia, as per the powers delegated by the President from time to time.Vigilance matters would get covered by the applicable disciplinary rulesin terms of officers competent to initiate and take vigilance action.C92. In the interest of good governance and smooth Governmentalfunction, we expect that efforts will be made by both the Chief Ministeras well as the LG for harmonious working relation.

Issue No.2: Whether the exclusion of the jurisdiction of theDAnti-Corruption Branch (ACB) of the NCTD to investigate offencescommitted under the Prevention of Corruption Act, 1987 by theofficials of the Central Government and limiting the jurisdiction ofthe ACB to the employees of the GNCTD alone is legal?

93. On this issue, validity of few notifications is in question. ItEmay be mentioned that vide Notification dated August 01, 1986, theAdministrator declared ACB of Delhi Administration as Police Stationunder Section 2(s) of Cr.P.C. for the purpose of certain corruption relatedoffences under the IPC and the Prevention of Corruption Act, 1947. Asper this notification, the ACB had “jurisdiction all over the whole ofUnion Territory of Delhi”. In supersession of this notification videFNotification dated November 08, 1993, the GNCTD through theLieutenant Governor declared the ACB of NCTD at Old Secretariat asa police station under Section 2(s) of the Cr.P.C. for offences under thePrevention of Corruption Act, 1988. Thereafter, two Notifications datedJuly 23, 2014 and May 21, 2015 came to be issued by the CentralGGovernment as per which the jurisdiction of ACB is limited to theemployees of GNCTD only. These Notifications read as under:

“Notification dated July 23, 2014

THE GAZETTE OF INDIAEXTRAORDINARYPART II – SECTION 3 – SUB SECTION (II)

GOVT. OF NCT OF DELHI v. UNION OF INDIA

PUBLISHED BY AUTHORITY

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

NOTIFICATION

New Delhi, the 23[rd] July, 2014

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

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

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

[F.no. 14036/4/2014-Delhi-I (Pt.File)]

I.S. Chahal, Jt. Secretary

xxxx

Notification dated May 21, 2015

THE GAZETTE OF INDIA

EXTRAORDINARYPART II – SECTION 3 – SUB SECTION (II)

PUBLISHED BY AUTHORITY

NEW DELHI, THURSDAY, MAY 21, 2015/VAISAKHA 31, 1937MINISTRY OF HOME AFFAIRS

NOTIFICATION

New Delhi, the 21[st] May, 2015

S.O. 1368(E) – Whereas Article 239 of the Constitution providesthat every Union Territory shall be administered by the President

acting, to such extent as he things fit, through an administrator tobe 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 ofDelhi shall be called the National Capital Territory of Delhi andthe administrator thereof appointed under Article 239 shall bedesignated as the Lieutenant Governor.

And whereas sub-clause (a) of clause (3) of Article 239AA statesthat the Legislative Assembly shall have power to make laws forthe whole or any pat of the National Capital Territory with respectto any of the matters enumerated in the State List or in theConcurrent List insofar as any such matter is applicable to UnionTerritories except matters with respect to Entries 1, 2 and 18 ofthe State List and Entries 64, 65 and 66 of that List insofar as theyrelate to the said Entries 1, 2 and 18; and whereas Entry 1 relatesto ‘Public Order’, Entry 2 relates to ‘Police’ and Entry 18 relatesto ‘Land’.

And whereas sub-clause (a) of clause (3) of Article 239AA alsoqualifies the matters enumerated in the State List or in theConcurrent List insofar as any such matter is applicable to UnionTerritories. Under this provision, reference may be made toEntry 41 of the State List which deals with the State Public services,State Public Service Commission which do not exist in the NationalCapital Territory of Delhi.

Further, the Union Territories Cadre consisting of IndianAdministrative Service and Indian Police Service personnel iscommon to Union Territories of Delhi, Chandigarh, Andaman andNicobar Islands, Lakshadweep, Daman and Diu, Dadra and NagarHaveli, Puducherry and States of Arunachal Pradesh, Goa andMizoram which is administered by the Central Government throughthe Ministry of Home Affairs; and similarly DANICS and DANIPSare common services catering to the requirement of the UnionTerritories of Daman and Diu, Dadra Nagar Haveli, Andamanand Nicobar Islands, Lakshadweep including the National CapitalTerritory of Delhi which is also administered by the CentralGovernment through the Minister of Home Affairs. As such, it isclear that the National Capital Territory of Delhi does not have its

own State Public Services. Thus, ‘Services’ will fall within thiscategory.

And whereas it is well established that where there is no legislativepower, 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 StateList being ‘Public Order’, ‘Police’ and ‘Land’ respectively andEntries 64, 65 & 66 of that list insofar as they relate to Entries 1,2 & 18 as also ‘Services’ fall outside the purview of LegislativeAssembly of the National Capital Territory of Delhi andconsequently the Govt. of Nct of Delhi will have no executivepower in relation to the above and further that power in relation tothe aforesaid subjects vests exclusively in the President or hisdelegate, i.e. the Lieutenant Governor of Delhi.

Now, therefore, in accordance with the provisions contained inArticle 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 LieutenantGovernor of the National Capital Territory of Delhi, shall, inrespect of matters connected with ‘Public Order’, ‘Police’,‘Land’ and ‘services’ as stated hereinabove, exercise thepowers and discharge the functions of the Central Governmentto the extent delegated to him from time to time by the President.

Provided that the Lieutenant Governor of the National CapitalTerritory of Delhi may, in his discretion, obtain the views of theChief Minister of the National Capital Territory of Delhi inregard to the matter of ‘services’ wherever he deems itappropriate.

2. In the Notification number F.1/21/92-Home (P) Estt. 1750,dated 8[th] November, 1993, as amended vide Notification dated23[rd] July, 2014 bearing No. 14036/4/2014-Delhi-I (Pt. File), forParagraph 2 the following Paragraph shall be substituted, namely:-

“2. This notification shall only apply to officials and employeesof the National Capital Territory of Delhi subject to theprovisions 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 takeany cognizance of offences against Officers, employees andfunctionaries of the Central Government.”

3. This Notification supersedes earlier Notification number S.O.853 (E) (F.No. U-11030/2/98-UTL) dated 24[th] September, 1998except as respects things done or omitted to be done before suchsupersession.

[F.No. 14036/4/2014-Delhi-I (PartFile)]

RAKESH SINGH, Jt. Secy.”

94. The validity of these Notifications is challenged on threegrounds: First, post the 69[th] Amendment, the Central Government is notthe “State Government” within the meaning of Section 2(s) of Cr.P.C.Second, the impugned notifications create class of offenders immuneDfrom the jurisdiction of ACB, even though they are accused of committingthe same offence as other public servants and in the same territory.Such classification is not permissible under the Constitution and has beenheld to violate Article 14. Third, the notifications have the effect ofamending various provisions of the Prevention of Corruption Act, 1988including the definition of “Public Servant”, which is not permissible.

95. It is argued that power under Section 2(s) of Cr.P.C. relatesto ‘Criminal Procedure’ and not ‘Police’. Section 2(s) of the Cr.P.C.empowers the State Government to notify Police Station. However,the impugned notifications are issued by the Central Government. It isargued that post the 69[th] Amendment, the Central Government is not theFState Government for the purpose of exercising the powers u/s. 2(s) ofthe Cr.P.C. It is submitted that though cursory reading of the definitionof the ‘State Government’ contained in Section 3(6) of the GeneralClauses Act, 1897 (GC Act) includes the Central Government and makesit State Government in respect of Delhi for the purpose of exercisingGpower under Section 2(s) of the Cr.P.C., but that is not the correct legalposition. The contention is that Section 3(60) of the GC Act containingthe definition of the ‘State Government’ was enacted prior to the 69[th]Amendment to the Constitution. Article 239AA and the cognate Articleswere inserted/amended by the said Constitutional amendment. Pursuantto the aforesaid amendment, the Parliament enacted the GNCTD Act.HThe said amendment and the said Act came in force on February 01,

1992. In view of the aforesaid change in the Constitution and enactmentof the GNCTD Act, the Central Government is not the State Governmentin 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 withthe Delhi Government. Reference is made to Entry 2 of List III of theSeventh Schedule, which reads as under:

“2. Criminal procedure, including all matters included in the Codeof Criminal Procedure at the commencement of this Constitution.”

96. It is, therefore, submitted that the Legislative Assembly forDelhi has legislative competence in respect of Cr. P.C, which is directlyrelatable to Entry 2 of List III. Further the Delhi Government has exclusiveexecutive power in respect of criminal procedure, in terms of Para 218and 219 of the Constitution Bench Judgment. Section 3(58) of the GCAct defines the expression “State”. The definition inter alia lays downthat the Union Territory is State. From this, it is sought to be buttressedthat it logically follows that any Government which administers affairsof the Union Territory of Delhi is State Government.

97. To support the aforesaid plea, certain judgments are reliedupon. In Ukha Kolhe v. State of Maharashtra[6], Constitution Benchof this Court has held as under:

“18...It is true that power to legislate on matters relating toCriminal Procedure and evidence falls within the Third Listof the Seventh Schedule to the Constitution and the UnionParliament and the State Legislature have concurrentauthority in respect of these matters. The expression“criminal procedure” in the legislative entry includesinvestigation of offences, and ss. 129A and 129B must beregarded as enacted in exercise of the power conferred by Entries2 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, wereaddressed by Mr. Rakesh Dwivedi, learned senior counsel. Hissubmission was that the entire matter has to be looked into from ahistorical perspective. He, thus, traced the development of establishment 6 (1964) 1 SCR 926 : AIR 1963 SC 1531

Aof ACB of Delhi Police. Historically, ACB of Delhi Police appears tohave been constituted in the year 1957. On December 6, 1963, theChief 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 provisoBof PC Act, the administrator of UT, Delhi authorised the inspectors ofpolice serving in ACB to investigate offences under the said Act in thewhole of the territory. This was reiterated by the order of theAdministrator issued on May 19, 1970. Additionally, with respect toSection 161, 165 and 165A of IPC power of arrest without warrant wasCgiven. During the aforementioned period, the police force was governedby the Police Act, 1861, Section 40 of the Punjab Laws Act, 1872 as inforce 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. April1, 1974 though it was gazetted on January 25, 1974. In this context, theDPresident of India issued the notification dated March 20, 1974. seriesof notifications, beginning from the year 1974, in respect of establishmentand functioning of the ACB have been issued by the President andAdministrator/LG in exercise of powers under Article 239(1) of theConstitution and Section 2(s) Cr.P.C., 1973 read with Delhi Police Act.ESignificantly, notifications issued prior to July 23, 2014 have not beenchallenged. Some of these notifications were issued even before theinsertion of Article 239AA (February 01, 1992). The first notificationwas issued by the President on March 20, 1974 in exercise of powersunder Article 239(1) of the Constitution. The notification directs theAdministrators of all UTs other than Arunachal Pradesh and MizoramFto exercise, subject to control of the President and until further orders,the powers and functions under Cr.P.C., 1973 as mentioned in the annexedschedule. The notification has condition that the Central Governmentmay itself exercise all or any of those powers and functions if it deemsnecessary. This notification confers powers on the Administrator of UTGDelhi to exercise powers under Section 2(s) Cr.P.C., 1973. In pursuanceof the delegation of powers by the President of India vide notificationdated March 20, 1974 and in exercise of powers under Section 2(s) ofCr.P.C., 1973 the Lieutenant Governor declared ACB of DelhiAdministration at Tis Hazari, Delhi to be police station for offencesunder Section 161 and 165A IPC, and PC Act, 1947 with jurisdictionHover whole of UT, Delhi vide notification dated May 20, 1975. Thus,ACB was established as police station by Administrator UT Delhi.Thereafter, the Rules of Procedure for inquiries and investigation byACB were revised on February 17, 1977. Rule 2 declared that all theRules and Regulations applicable to the Delhi Police are also applicableto the ACB. Rule 3 prescribed the functions of ACB. Rule 5 mentionedthat ACB would be under the direct charge of Superintendent of Police.Rule 15(v) provides that ordinarily no inquiries should be made by ACBin case of Central Government employees. The Rules also provided forprosecution sections. At this stage, Parliament enacted the Delhi PoliceAct, 1978 to amend and consolidate the law relating to the Regulation ofPolice in Delhi. Section 4 vests superintendence of the Delhi Police inthe Administrator appointed under Article 239 of the Constitution. It ishe who appoints the Commissioner of Police, Additional Commissionerof Police and Deputy Commissioner of Police. Vide Sections 10 and11, 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 Policewho is appointed by the Additional Commissioner. All this is to be donesubject to the control of the Administrator and his orders. Vide Section15, the Commissioner of Police distributes duties and the mode offulfillment of their duties. The disciplinary powers vest with theCommissioner of Police who also makes regulations subject to the ordersof the Administrator. It also covers preservation of public order andpeace through provisions under Chapter IV and V. The Administratorcan make rules under Section 147. Section 149 contemplates cessationof old laws regulating police mentioned in Schedule II but it preservesthe Rules and Standing Orders, appointments made etc. insofar as theyare consistent with the Act. It also preserves the pending investigationand legal proceedings. Vide Section 150 the police force functioning inDelhi was deemed to be the police force constituted under the DelhiPolice Act, 1978 with designations mentioned in Schedule III. It issubmitted 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 theAdministrator of UT Delhi it was provided, in supersession of his previousnotification dated May 20, 1975, and August 23, 1975 and issued inexercise of powers under Section 2(s) Cr.P.C. 1973 read with notification

136SUPREME COURT REPORTS

Adated March 20, 1974, that ACB Delhi Administration at Tis Hazari,Delhi would be police station in relation to offences under Section 161 to165A IPC and the Prevention of Corruption Act, 1947 and also attempts,abetment and conspiracies in relation to said offences. It was to havejurisdiction over the whole of UT Delhi. After the enforcement of thePrevention of Corruption Act, 1988 which also omitted Section 161-B165A of IPC, the LG of NCTD issued notification dated November 08,1993 in exercise of power under Section 2(s) CRPC read with notificationdated March 20, 1974 of GOI. This notification provided that ACB ofNCT Delhi at Old Secretariat would be police station for offences underthe PC Act 1988 and attempts, abetment and conspiracies in relation toCor in connection with the said offences and any other offence committedin 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 notificationwas issued after the insertion of Article 239AA in the Constitution.100. On September 24, 1998, the President issued notificationDunder Article 239(1) of the Constitution directing that subject to his controland until further orders the LG OF NCT Delhi shall exercise powersand discharge functions of the Central Government, to the extent delegatedin 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 doEso.

101. After tracing the aforesaid history, Mr. Dwivedi submittedthat Notification dated July 23, 2014, which is now impugned, came tobe issued by the Central Government to amend the earlier Notificationdated November 08, 1993 which was also issued by the CentralFGovernment and that too post Article 239AA era. According to him, theobject behind issuing this Notification is to implement the guidelines issuedby the CVC in respect of the jurisdiction of CBI and ACB. It is thisposition which is restated in another Notification dated May 21, 2015which has also been challenged by the Delhi Government. According toGMr. Dwivedi, an analysis of all the notifications shows that from May20, 1975 itself the ACB Delhi administration was intended to be policestation for investigating offences in relation to the personnel exercisingpowers and functions in connection with UT Delhi. The notification datedAugust 1, 1986 had also invoked powers under Government of Indianotification dated March 20, 1974. Though the notifications territoriallyH

covered the whole of UT Delhi but the context was evidently to dealwith corruption in the Administration of UT Delhi. The nomenclature‘Anti-corruption branch, Delhi administration’ also indicates the same.The subsequent notification dated November 8, 1993 merely madeconsequential changes on account of P.C. Act 1988 and change in statusof administration of Delhi as NCTD. What was necessarily implicit inthe said notifications was made clear by the subsequent notification datedJuly 23, 2014 and May 21, 2015 with view to avoid parallel exercise ofpowers by CBI and ACB over officers, employees and functionaries ofthe Central Government. This was also recommended by CVC. Hereit may be noted that while CBI is police force created under DSPEAct 1946 and ACB is established under Delhi Police Act 1978. Theestablishment of ACB is with respect to Entry 1 and 2 List II of ScheduleVII of the Constitution of India. The establishment of CBI and its powerof investigation falls under Entry 8/ 80 list I of Schedule VII whereasthe establishment of ACB would be under the Delhi Police Act, 1978.

102. He also submitted that Section 5 of PC Act, 1947 and Sectionof PC Act, 1988 envisage investigations of offences done by CBI/DelhiPolice. Hence, Union or Administrator acting under DSPE Act andDelhi Police Act, 1978 can decide which of the two would investigateofficers, employees and functionaries of the Central Government. Inshort five parliamentary Acts-Cr.P.C., 1973, PC Act, 1988, DSPE Act,Delhi Police Act, 1978 and CVC Act have to be read together.

103. In this hue, Mr. Dwivedi’s submission was that it now standsestablished, even by the judgment of the Constitution Bench, that NCTDis still Union Territory to which Article 239 is applicable, notwithstandingthe insertion of Article 239AA. He further submitted that admittedlyEntry 2 in List II is outside the legislative competence of the LegislativeAssembly of Delhi and, therefore, the Delhi Government could notexercise executive authority in respect of this entry. Moreover, Entries8 and 80 of List I are also outside the domain of NCTD over which theParliament and central executive has the exclusive jurisdiction. It is,therefore, open to the Parliament and the Central Government to act inpursuance of Entries 8 and 80 of List I and provide certain exclusivejurisdiction to CBI as regards investigation to be done by it.104. Mr. Dwivedi accepted that Cr.P.C. involves field which iscovered 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

AStates. Therefore, though the Legislative Assembly of Delhi haslegislative competence in respect of matters covered by Entry 2, but it isnot exclusive inasmuch as Parliament also has the legislative competence.In fact, competence of the Delhi Assembly is subservient to legislativecompetence of the Parliament. Moreover, Parliament had alreadyexercised its legislative power by enacting Cr.P.C. comprehensively andBexhaustively. Therefore, the field becomes occupied. In suchcircumstances, the legislative competence of NCTD/LegislativeAssembly would stand eroded, if not denuded, which happens on accountof Article 239AA(b)(c) of the Constitution. In this scenario, argued thelearned counsel, GNCTD can exercise only such executive power asCCr.P.C. confers on it and this conferment should be specific and express.105. Dr. A.M. Singhvi, learned senior counsel who appeared forthe intervenor/Reliance Industries, supported and added to the aforesaidsubmissions, which would be taken note of in our discussion.

106. After considering the respective submissions, we find forceDin the arguments advanced by Mr. Rakesh Dwivedi predicated on thehistorical developments narrated by him, and extracted above. We mayalso emphasise that the issue is limited, viz., whether ACB is empoweredto register cases in respect of Central Government employees as well?

107. We find that the challenge laid by the appellant to theseENotifications is predicated on Entry 2 of List II. Even after confermentof the status of quasi-State upon Delhi (which though in constitutionalterm remains Union Territory), Article 239AA (which gives such status)itself excludes Entry 2 from the domain of NCTD. Thus, in respect of‘Police’, NCTD does not have either legislative or executive power.FThis Court is required to look into the substance of such an exclusionand cannot be guided by hyper technicalities. Even in the ConstitutionBench judgment it has been emphasised time and again, and in fact in allthe three opinions of the Hon’ble Judges, that the text of Article 239AAis to be read contextually. Therefore, what has been specifically deniedto GNCTD, it cannot venture to gain that power on such plea.G

108. Dr. Singhvi rightly submitted that it is settled principle thatlegislative entries are to be interpreted in broad and liberal mannerconsistent with imputing to them the widest amplitude and as includingall ancillary and subsidiary matters. narrow or pedantic reading of theentries has been repeatedly frowned upon. We are of the opinion thatHthe scope of the term ‘Police’ as occurring in Entry 2 of List II cannot,

therefore, be artificially restricted or limited to only constitution of thePolice force, but would take within its fold the legislative (and, therefore,executive) power to exercise supervision and control over the functioningof the Police so constituted, including by way of issuance of executivedirections delineating the powers, functions and jurisdiction of differentwings/sections of the Police. In essence, the impugned notifications, tothe 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 thecompetent of the Government of India. Even to the extent the executivepower being exercised qua the Police may correspond to the functionsof the Police as set out in the Cr.P.C., the nature of the power would notfor this reason stand altered or relatable to Entry 2 of List III. It is notmetaphorsis from List II to List III. In substance, issuance of anadministrative/executive direction to the Police is an exercise of executivepower relatable to the legislative entry pertain to Police.109. Additionally, as already noted above, various provisions ofthe Delhi Police Act, 1978 also demonstrate that power of control andsupervision is invested with the Administrator. This includes definingthe limits and extent of the police station and administrative control overpolice stations. Moreover, Entry 2 List II would also include thedetermination as to the nature and scope of investigations to be done bythe Police. Therefore, while establishing the ACB as Police Station, itwould be permissible to circumscribe and limit the investigation sphereof the ACB.

110. No doubt, Section 2(s) of the Cr.P.C. contemplatesestablishment of the police station by the State Government. However,the Cr.P.C. also lays down the procedure for making arrest, conductinginvestigation and submitting final reports. It does not contain any provisionwhich prescribes what offences would be investigated by which policeforce. Section 156 of the Cr.P.C. merely provides that officers in thepolice station will investigate those cognizable cases which can be triedby the court having jurisdiction over the local area concerned wouldhave power to inquire into or try. These provisions do not provide howparallel jurisdiction of two police stations is to be demarcated. In fact,parallel jurisdiction to investigate is not contemplated by Cr.P.C. as thatwould result in chaos and anarchy and would frustrate the very purposeof investigation. This leads us to hold that the Government which hascompetence over Entry 2 List II would have power to segregate anddemarcate the jurisdiction to investigate as between two police forces.

AHence the impugned notifications are valid. This conclusion becomesinevitable when Cr.P.C. is read with the Delhi Police Act, 1978 andother 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 theBpurview of GNCTD and is the exclusive domain of the Parliament/Central Executive. The term ‘public order’ has been assigned widestamplitude and connotation (See – Stainislaus v. State of MadhyaPradesh and Others[7] and Zameer Ahmed Latifur Rehman Sheikhv. State of Maharashtra and Others[8]). It is also held that ‘publicorder’ includes cognizance of offences, search, seizure and arrest,Cfollowed by registration of reports of offences (FIRs), investigation,prosecution, trial and in the event of conviction, execution of sentencesas well. All these aspects have to be construed conjointly.112. In fact, there was specific rational in excluding Entries 1, 2and 18 of List II from the jurisdiction of the Government of NCTD. TheDBalakrishnan Committee report which recommended exclusion of theseEntries (and which part of the Report stands accepted by providing sospecifically in Article 239AA of the Constitution) was of the view thatduties and responsibilities pertaining to the Police and maintenance ofpublic order be vested solely in the Central Government so that ‘there is

no confusion or overlap of the jurisdiction in regard to the focalEpoint of control and coordination’. This rationale behind the aforesaidexclusion directly flows from the unique position occupied by the NCTDas the nation’s capital and seat of the Central Government.

113. Also, the opinion of Chandrachud, J. at paragraph 29 notesthat exclusion of inter alia ‘police’ and ‘public order’ was aF“constitutional indication of the fact that the NCT has beenconsidered to be of specific importance from the perspective of thenation to exclude three important areas which have vital bearingon its status as national capital”. Following observations from thesaid opinion are also apt:G“The NCT embodies, in its character as capital city the politicalsymbolism underlying national governance. The circumstancespertaining to the governance of the NCT may have direct andimmediate impact upon the collective welfare of the nation. Thisis the rationale for exclusion of the subjects of police, public order 7 (1977) 1 SCC 677H 8 (2010) 5 SCC 246and land from the legislative power and necessarily from theexecutive power of the NCT... (paragraph 55)”

xxxx

“...national imperatives have led to the carving out of the areas ofpolice, public order and land from the sphere of legislative authorityof the legislative assembly and their entrustment to Parliament…

(paragraph 74)”

114. Pertinently, the appellant wants exclusive executive powerin respect of the entries in List II, except Entries 1, 2 and 18, as well asall the subjects over List III. In this behalf, as noted above, contentionof the appellant is that the Constitution Bench has so decided. However,when it comes to excepted matter in Entry 2 List II, though powers ofNCTD are totally excluded, by indirect method the appellant wantsconcurrent jurisdiction over the same. It would be difficult to acceptsuch position. It is also pertinent to mention that insofar as Notificationdated November 08, 1993 is concerned, whereby ACB of NCTD at OldSecretariat as police station was created by the Lieutenant Governor,the same has not been challenged. No doubt, there was no electedGovernment at that time. Fact remains that this Notification has heldthe field even thereafter throughout. The impugned Notifications areonly modification to the aforesaid Notification dated November 08,1993 to limited extent whereby it is clarified that this earlier Notificationshall be applicable to ‘the officers and employees of that Governmentonly (GNCTD)’. Thus, the only effect is that the ACB is not empoweredto investigate into the offences of Central Government employees underthe Prevention of Corruption Act. Admittedly, this investigation is carriedout by the CBI. Therefore, it obviates the duality and conflict ofjurisdiction 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 ‘appropriateGovernment’ under the COI Act?

116. The relevant entries in the Seventh Schedule are Entry 94 ofList 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 thematters in this List.

AEntry 45 List III

Inquiries and statistics for the purposes of any of the mattersspecified in List II or List III.”

117. The COI Act is the Central enactment. For understandingthe issue involved, we may refer to the definition of ‘appropriateBGovernment’ contained in Section 2(a) of this Act, which reads as under:

“”appropriate Government” means –

(i) the Central Government, in relation to Commission appointedby it to make an inquiry into any matter relatable to any of theentries enumerated in List I or List II or List III in the SeventhCSchedule to the Constitution; and

(ii) the State Government, in relation to Commission appointedby it to make an inquiry into any matter relatable to any ofthe entries enumerated in List II or List III in the SeventhSchedule to the Constitution……

(emphasis supplied)”

118. As per Mr. Naphade, clause (I) of sub-section (a) of Section2 relates to both the Entries, namely, Entry 91 of List I and Entry 45 ofList III, whereas clause (ii) is relatable to Entry 45 of List III. ArgumentEis that since Entry 45 of List III steps in and in respect of this EntryNCTD 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 tohim, is the provision made to avoid any conflict. It is as under:

F“(a) by the Central Government, no State Government shall, exceptwith the approval of the Central Government, appoint anotherCommission to inquire into the same matter for so long as theCommission appointed by the Central Government is functioning;”

119. Mr. Naphade submitted that while holding that the “StateGGovernment” in the above definition of “appropriate Government”does not include the Government of NCT of Delhi, the High Court hasapplied the definition of State Government under Section 3(60) of theGC Act and this is another issue where the said definition has beenmechanically applied, without understanding the context or text of theenactment.H

120. In respect of this issue, the High Court has held that “In thelight of the clear and unambiguous definitions of the Central Governmentand State Government under Section 3(8) and Section 3(60) respectivelyof the GC Act, we are of the view that the expression ‘appropriateGovernment’ in respect of Union Territories shall be the CentralGovernment only” and further held that even if GNCTD is appropriategovernment, that the impugned notification appointing the Commissionof Enquiry could not be sustained as the same was passed without seekingviews/concurrence of the Lieutenant Governor. It was argued that asfar as the concurrence of the Lieutenant Governor is concerned, it hasalready been held by the Constitution Bench that no concurrence isrequired.[9]

121. Attention was also drawn to the Statement of Objects andReasons appended to the original Bill No. 39 of 1952 introduced inParliament to bring about the enactment the Commissions of InquiryAct, 1952. It reads as follows:

“Commissions and Committees of Inquiry are at present appointedby Government under executive order; there is no central lawto regulate the power of such bodies. Some of them have felthandicapped because of the absence of any statutory powerto enforce the attendance of witnesses and the productionof documents. In order to remove this difficulty, ad hoclegislation has been passed from time to time, such as forexample, the Sugar Crisis Inquiring Authority Act, 1950. Itis felt that there should be general law authorizingGovernment to appoint an inquiring authority on any matterof public importance, whenever considered necessary, orwhen demand to that effect is made by the Legislature and thatsuch law should enable the inquiring authority to exercise certainspecific powers including the powers to summon witnesses, totake evidence on oath, and to compel persons to furnishinformation. The Bill is designed to achieve this object.”

122. Another submission is that the power to appoint commissionof enquiry generally and even under the COI Act, 1952 is powerincidental to governance as it is means of government informingitself of matters of public importance. By its very nature and in the

9 However, we may add here that even if no concurrence is required, the matter has tobe sent to the LG for his views, in terms of proviso to Article 239AA(4), which, ofcourse, has to be within the parameters specified in the opinion authored by JusticeChandrachud and contained in paras 140-142 already extracted above.

Ainterest of good governance and in principle, such power cannot bedenied to any government. Furthermore, the power to appoint acommission of inquiry, whether dehors the COI Act, 1952 or in terms ofthe Act is traceable to Entry 45 of List III. Thus, the power simpliciter toappoint Commission of Enquiry exists with the Council of Ministers ofGNCTD by virtue of Entry 45. The COI Act, 1952 only facilitates andBprovides the procedure for conducting such an enquiry. It does not makeany sense to deny the Government of NCT of Delhi this proceduralbenefit, when it otherwise has the power to appoint an enquiry underEntry 45 of List III. More so, when the Delhi Assembly can pass lawsetting up commission of inquiry for instance on transport, waterCresources or primary health centres in order to better inform itself forthe formulation of policy.123. On the above basis, it is argued that reliance on Section3(60) of the GC Act is unsustainable. The High Court has applied Section3(60) of the GC Act without understanding the context of appointmentDof Commission of Inquiries and without appreciating that the COI Act isonly procedural mechanism for exercise of power which existsindependent of this Act in the NCT of Delhi.

124. On this subject matter, Mr. Maninder Singh responded to theaforesaid arguments of Mr. Naphade. His first submission is that COIEAct is Parliamentary enactment and, therefore, implementation thereofhas to be as per the provisions of the said Act. He referred to para 12 ofthe judgment in Rai Sahib Ram Jawaya Kapur’s case which reads asunder:

“12. It may not be possible to frame an exhaustive definition ofFwhat executive function means and implies. Ordinarily theexecutive power connotes the residue of governmental functionsthat remain after legislative and judicial functions are taken away.

The Indian Constitution has not indeed recognised the doctrineof separation of powers in its absolute rigidity but the functions ofthe different parts or branches of the Government have beenGsufficiently differentiated and consequently it can very well besaid that our Constitution does not contemplate assumption, byone organ or part of the State, of functions that essentially belongto another. The executive indeed can exercise the powers ofdepartmental or subordinate legislation when such powers areHdelegated to it by the legislature.

It can also, when so empowered, exercise judicial functions in alimited way. The executive Government, however, can never goagainst the provisions of the Constitution or of any law. This isclear from the provisions of Article 154 of the Constitution but, aswe have already stated, it does not follow from this that in orderto enable the executive to function there must be law already inexistence and that the powers of the executive are limited merelyto the carrying out of these laws.”

Adverting to the provisions of COI Act, he submitted that Section2(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 behalfof respondent No. 1 in Civil Appeal No. 2360 of 2017 also supported thestand taken by Mr. Maninder Singh. He added to the aforesaid contentionby arguing that notification dated August 20, 1996, which gives power tothe LG, remains unchanged. According to him, this notification datedAugust 20, 1966 is specific statutory delegation which accorded thestatus 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 ‘StateGovernment’ under this Act. This position, he argued, has not changedeven 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 Guru[10], one of the arguments raised bythe defence was that valid sanction had not been obtained as per Section196 of the Cr.P.C. in order to prosecute the accused persons. However,the Court noted:

“11. As regards the sanction under Section 196 CrPC it is recitedin the sanction order (Ext. P-11/2) that the Lieutenant Governoracted in exercise of powers conferred by sub-section (1) ofSection 196 CrPC read with the Government of India, Ministry ofHome Affairs notification dated 20-3-1974. Under that notification,there was delegation of powers to the Lieutenant Governor togrant sanction. The said notification which finds place in theannexures to the written submissions made on behalf of Gilanishows that it was issued under Article 239(1) of the Constitutionenabling the Administrator of the Union Territory to discharge 10 (2005) 11 SCC 600

Apowers and functions of the State Government under CrPC. Weaccept the submission of the learned Senior Counsel for the Statethat the delegation of power contained in the said notification willcontinue to operate unless Parliament by law provides otherwise.The Government of NCT of Delhi Act, 1991 does not in any wayaffect the validity of delegation contained in the presidentialBnotification issued under Article 239.”

126. He pointed out that this judgment was also placed before theConstitution Bench while considering the proposition that the executivepower of the State Government is limited under the Constitutional scheme,even after the enactment of the GNCTD Act. Chandrachud, J. opinedthat:

“450. The issue as to whether the Lieutenant Governor of theNCT is competent to accord sanction for prosecution under thePrevention of Terrorism Act and the Code of Criminal Procedurewas considered by two-Judge Bench of this Court in State (NCTDof Delhi) v. Navjot Sandhu [State (NCT of Delhi) v. NavjotSandhu, (2005) 11 SCC 600 : 2005 SCC (Cri) 1715] (NavjotSandhu). In that case, sanctions under both the statutes wereaccorded “by order and in the name of the Lieutenant Governor”.The sanction under Section 50 of POTA was urged to be nullityon the ground that in relation to the Union Territory only the CentralEGovernment was competent to accord it. Section 2(1)(h) of POTAdefined the expression “State” in relation to Union Territory, tomean the Administrator thereof. Rejecting the challenge, this Courtheld that under Article 239-AA, the Administrator appointed underArticle 239 does not lose his status as such and it is only hisFdesignation which is merged into the new designation of LieutenantGovernor “in keeping with the upgraded status of this particularUnion Territory”. The Lieutenant Governor, who continues to bean Administrator, was held to derive authority to grant sanctionunder Section 50 by reason of the legislative fiction under Section2(1)(h), the Administrator being deemed to be the StateGGovernment for the purpose of Section 50. Hence: (SCC p. 654,para 10)

“10. … by virtue of specific statutory delegation in favour ofthe Administrator who is constitutionally designated as theLieutenant Governor as well, the sanction accorded by thesaid authority is valid sanction under Section 50 of POTA.”

The decision in Navjot Sandhu [State (NCT of Delhi) v. NavjotSandhu, (2005) 11 SCC 600 : 2005 SCC (Cri) 1715] turned upona specific statutory delegation in favour of the Administrator togrant sanction. It is hence of no assistance to the presentconstitutional context.”

127. The learned counsel also sought to draw sustenance fromSection 41(1)(ii) of the GNCTD Act which states that the LG shall actin his discretion in matters where he is required to, under any law. Sincethe LG is the ‘Appropriate Government’ under the COI Act, he is boundto exercise his discretion as envisaged under Section 41 of the GNCTDAct. The power of the LG to act in his own discretion where he isrequired to under any law has been affirmed by the Constitution Benchdecision.

128. In the alternative, and without prejudice to the aforesaidarguments, the learned counsel argued that in any event, the notificationdated August 11, 2015 constituting Commission of Inquiry is violative ofGNCTD Act and ToBR. To buttress this submission, he referred toSection 45 of the GNCTD Act as well as Rule 23 of ToBR as per whichevery decision taken by the Council of Ministers has to be communicatedto the LG to keep him apprised and to enable him to exercise the powerconferred upon him under Article 239AA(4) and the proviso thereof.Unless the LG is kept informed of all decisions, he cannot exercise theConstitutional power to disagree vested upon him, if need be, and thus,cannot make reference to the President. Another submission of Mr.Gautam Khazanchi was that the notification dated August 11, 2015 wasthe result of malafide power of the GNCTD. According to him, thematter had been investigated by the ACB, dealt with by the LG and wasalso the subject matter of an Inquiry headed by retired Chief Justice ofa High Court. Initiation of second round by constitution of Commissionof Inquiry to look into the very same allegations investigated by the ACBwas not only an abuse of the process but an excess of authority exercisedby it to do indirectly what it could not do directly.

129. From the arguments noted above, it becomes apparent thatthe outcome of this issue hinges upon the meaning that is to be assignedto the expression ‘State Government’ occurring in Section 2(a) of theCOI 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)

[2019] 3 S.C.R.

Aof the GC Act defines Central Government and relevant portion thereofis as under:

“(8) “Central Government” shall-

(b) in relation to anything done or to be done after thecommencement of the Constitution, means the President; and shallinclude-

C(iii) in relation to the administration of Union Territory, theadministrator thereof acting within the scope of the authority givento him under article 239 of the Constitution;”

130. Section 3(60) of the GC Act, on the other hand, defines StateGovernment, relevant provision whereof is extracted below:D

“3(60) “State Government”-

E(c) as respects anything done or to be done after thecommencement of the Constitution (Seventh Amendment) Act,1956, shall mean, in State, the Governor, and in Union Territory,the Central Government; and shall, in relation to functionsentrusted under article 258A of the Constitution to the Governmentof India, include the Central Government acting within the scopeFof the authority given to it under that article;

131. The GC Act also defines ‘Government’, ‘State’ and ‘UnionTerritory’. We would like to reproduce these definitions as well:

“3(23) “Government” or “the Government” shall include both theCentral Government and any State Government;

3(58) “State”-

(b) as respects any period after such commencement, shall meana State specified in Schedule I to the Constitution and shall includeHa Union Territory;

3(62A) “Union Territory” shall mean any Union Territory specifiedin Schedule I to the Constitution and shall include any other territorycomprised within the territory of India but not specified in thatSchedule;”

132. No doubt, definition of State as contained in Section 3(58)includes Union Territory. However, we are concerned with the meaningof ‘State Government’ which is defined in Section 2(60) of the GC Act.Here, it is specifically provided that in respect of Union Territory, theState Government would mean the Central Government.

133. It would be appropriate to remark that this aspect had comeup for consideration in the case of Goa Sampling Employees’Association v. General Superintendence Co. of India[11], though in thecontext of definition of “Appropriate Government” contained in Section2(a) of the Industrial Disputes Act. Goa was Union Territory at thatpoint of time. The workman had raised dispute and reference in thisrespect was made by the Central Government to the industrial tribunal.This power of Central Government to make the reference was challengedby the management taking specific plea that the Central Governmentwas not the Appropriate Government in relation to the Union Territory.This contention was repelled by the industrial tribunal but upheld by theHigh Court. High Court had held that the administrator of the UnionTerritory of Goa, Daman & Diu shall be the administrator who couldmake the reference. This Court set aside the order of the High Courtand upheld that of the industrial tribunal holding that Central Governmentwas the Appropriate Government in respect of Union Territory. Afterreferring to the definition of ‘Appropriate Government’ in Section 2(a)of the Industrial Disputes Act, the Court relied upon the provisions ofGC Act contained in Section 3(8) and Section 3(60) thereof. The Courtobserved that there is distinction between “States” and “UnionTerritories” and also between “State Government” and “Administrationof Union Territory”. It held that the “Administration of UnionTerritory” would not be comprehended in the expression “StateGovernment”. It was held that the “State Government” in UnionTerritory would mean the “Central Government”, in terms of Section3(60) of the GC Act. It would not be constitutionally correct to describethe Administration of Union Territory as “State Government”. Thisconclusion is arrived at in the following manner:

11 (1985) 1 SCC 206

“12. Parliament enacted the Government of Union Territories Act,1963 (“1963 Act” for short). Its long title reveals the objectunderlying the enactment, namely, to provide for LegislativeAssemblies and Council of Ministers for certain Union Territoriesand for certain other matters. Union Territory of Goa, Damanand Diu is governed by the 1963 Act [See Section 2(h)]. Theexpression “Administrator” has been defined in Section 2(a) ofthe 1963 Act to mean “the Administrator of Union Territoryappointed by the President under Article 239”. Section 18 specifiesthe extent of legislative power of the Legislative Assembly of aUnion Territory to encompass any of the matters enumerated inthe State List or the Concurrent List in the Seventh Schedule.Section 44 provides that there shall be Council of Ministers ineach Union Territory with the Chief Minister at the head to aidand advise the Administrator in exercise of his functions in relationto matters with respect to which the Legislative Assembly of theUnion Territory has power to make laws except insofar as he isrequired by or under the Act to act in his discretion or by or underany law to exercise any judicial or quasi-judicial functions. Thereis proviso to Section 44(1) which sheds light on the position ofthe Administrator and powers of the Council of Ministers.According to the proviso in the event of difference of opinionbetween the Administrator and the Ministers on any matter, theAdministrator shall refer it to the President for decision giventherein by the President etc. Thus the executive power of theAdministrator extends to all subjects covered by the legislativepower. But in the event of difference of opinion the Presidentdecides the point. When President decides the point, it is the CentralGovernment that decides the point. And that is binding on theAdministrator and also the Ministers. Section 45 provides that“the Chief Minister of Union Territory shall be appointed by thePresident”. Section 46 confers power on the President to makerules for the conduct of business. Section 55 provides that “allcontracts in connection with the administration of Union Territoryare contracts made in the exercise of the executive power of theUnion and all suits and proceedings in connection with theadministration of Union Territory shall be instituted by or againstthe Government of India”. In exercise of the power conferred byArticle 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 wereextended to the Goa, Daman and Diu subject to the notifications,if any, specified in the Schedule. The Schedule includes IndustrialDisputes Act, 1947 as whole without any modification.

xxxx

14. Would it be constitutionally correct to describe Administrationof Union Territory as State Government? Article 1 provides that“India, that is Bharat, shall be Union of States”. Sub-article (2)provides that “the States and the territories thereof shall be asspecified in the First Schedule”. Sub-article (3) introduced adichotomy between the State as understood in the Constitutionand the Union Territory when it provides that “the territory ofIndia shall comprise— (a) the territories of the States; and (b)the Union Territories specified in the First Schedule”. Theprovisions of Part VI of the Constitution do not apply to the UnionTerritories. Part VI of the Constitution which deals with Statesclearly indicates that the Union Territory is not State. Therefore,the Union Territory constitutionally speaking is something otherthan State. As far as the States are concerned, there has to bea Governor for each State though it would be permissible to appointthe same person as Governor of two or more States. Part VIIIprovides for administration of Union Territories. Article 239conferred power on the President for the administration of UnionTerritories unless otherwise provided by an Act of Parliament.Therefore, apart from the definitions of the expressions “CentralGovernment”, “State Government” and “Union Territory” asenacted in the General Clauses Act, 1897, the Constitution itselfmakes distinction between State and its Government called theState Government and Union Territory and the Administration ofthe Union Territory. Unless otherwise clearly enacted, theexpression “State will not comprehend Union Territory” and the“State Government” would not comprehend Administration ofUnion Territory. Now if we recall the definition of three expressions“Central Government” [Section 3(8),] “State Government” [Section3(60)] and “Union Territory” [Section 3(62-A)] in the GeneralClauses Act, it would unmistakably show that the framers of theConstitution as also the Parliament in enacting these definitions

have clearly retained the distinction between State Governmentand Administration of Union Territory as provided by theConstitution. It is especially made clear in the definition ofexpression “Central Government” that in relation to theAdministration of Union Territory, the Administrator thereofacting within the scope of the authority given to him under Article239 of the Constitution, would be comprehended in the expression“Central Government”. When this inclusionary part is put injuxtaposition with exclusionary part in the definition of theexpression “State Government” which provides that as respectsanything done or to be done after the commencement of theConstitution (Seventh Amendment) Act, 1956, it shall mean, in aState, the Governor, and in Union Territory, the CentralGovernment, the difference conceptually speaking between theexpression “State Government” and the “Administration of UnionTerritory” clearly emerges. Therefore, there is no room for doubtthat the expression “Administration of Union Territory”,Administrator howsoever having been described, would not becomprehended in the expression “State Government” as used inany enactment. These definitions have been modified to bringthem to their present format by Adaptation of Laws (No. 1) Order,1956. Section 3 of the General Clauses Act, 1897 provides that inall Central Acts and Regulations made after the commencementof the Act unless there is anythingrepugnant in the subject orcontext, the words defined therein will have the meaning assignedtherein. Indisputably the Industrial Disputes Act, 1947 is CentralAct enacted after the commencement of the General ClausesAct and the relevant definitions having been recast to meet theconstitutional and statutory requirements, the expressions “CentralGovernment”, “State Government” and “Union Territory” mustreceive the meaning assigned to each in the General Clauses Actunless there is anything repugnant in the subject or context inwhich it is used. No such repugnancy was brought to our notice.Therefore, these expressions must receive the meaning assignedto them.

15. The High Court after referring to the definitions of theaforementioned three expressions as set out and discussed hereinfirst observed that on careful reading of the definition, it appears“that in relation to the administration of Union Territory, the

Administrator thereof acting within the scope of the authority givento him under Article 239 of the Constitution is the CentralGovernment”. So far there is no dispute. The High Court thenobserved that “it must follow that the Administrator is the StateGovernment insofar as the Union Territory is concerned, and it isso provided in the definition of the State Government in Section3(60) of the General Clauses Act”. The High Court fell into anerror in interpreting clause (c) of Section 3(60) which upon itstrue construction would show that in the Union Territory, there isno concept of State Government but wherever the expression“State Government” is used in relation to the Union Territory, theCentral Government would be the State Government. The veryconcept of State Government in relation to Union Territory isobliterated by the definition. Our attention was, however, drawnto the two decisions of this Court in Satya Dev Bushahri v. PadamDev [AIR 1954 SC 587 : 1955 SCR 549 : 1954 SCJ 764 : 10 ELR103] and the decision of this Court in State of Madhya Pradeshv. Shri Moula Bux [AIR 1962 SC 145 : (1962) 2 SCR 794 :(1961) 2 SCJ 549] in which with reference to Part States, someobservations have been made that “the authority conferred underArticle 239, as it then stood, to administer Part States has notthe effect of converting those States into the Central Government,and that under Article 239 the President occupies in regard toPart States, position analogous to that of Governor in Part AStates and of Rajpramukh in Part States”. It was also observedthat “though the Part States are centrally administered underthe provisions of Article 239, they do not cease to be States andbecome merged with the Central Government”. It was then urgedthat 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 States has undergone achange, now being described as Union Territory, but the positionof the Union Territory is the same as it was as Part States andtherefore, the view taken in the aforementioned decisions that theadministration of Part States could appropriately be describedas State Government would mutatis mutandis apply to theadministration of Union Territories. In other words, it was saidthat they can be appropriately described as State Governments

for various purposes. Both the decisions were rendered prior tothe amendment of Part VIII of the Constitution in 1956 and theinsertion of the Articles 239-A and 239-B in 1962 and morespecifically after the enactment of the 1963 Act. The concept ofUnion Territory with or without Legislative Assembly and withor without Council of Ministers with specified legislative andexecutive powers have been set out in the 1963 Act. Coupledwith this, modifications were made in the definitions ofaforementioned three expressions. Therefore, the two decisionsare of no assistance in resolution of the present controversy.”

134. We may also usefully refer to the opinion of Chandrachud, J.Cin the Constitution Bench judgment, where the learned Judge hasspecifically dealt with the aforesaid case of Goa Sampling EmployeesAssociation and held that there is no ‘State Government’ in the UnionTerritory 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 1963Act, this Court observed thus: (Goa Sampling case [GoaSampling 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 differenceof opinion between the Administrator and the Ministers on anymatter, the Administrator shall refer it to the President fordecision given therein by the President, etc. Thus the executivepower of the Administrator extends to all subjects covered bythe legislative power. But in the event of difference of opinionthe President decides the point. When President decides thepoint, it is the Central Government that decides the point.”

The Court noticed that the provisions of Part VI of the Constitutionwhich deal with the States clearly indicate that Union Territoryadministration is not State Government. The Court observedthat the Constitution makes distinction between State and itsGovernment (called the State Government) on one hand and theUnion Territory and its administration on the other hand. Thisdistinction, the Court observed, was carried in the definitioncontained 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 theGeneral Clauses Act, it would unmistakably show that theFramers of the Constitution as also Parliament in enacting thesedefinitions have clearly retained the distinction between StateGovernment and Administration of Union Territory as providedby the Constitution. It is especially made clear in the definitionof expression “Central Government” that in relation to theAdministration of Union Territory, the Administrator thereofacting within the scope of the authority given to him underArticle 239 of the Constitution, would be comprehended in theexpression “Central Government”. When this inclusionary partis put in juxtaposition with exclusionary part in the definition ofthe expression “State Government” which provides that asrespects anything done or to be done after the commencementof the Constitution (Seventh Amendment) Act, 1956, it shallmean, in State, the Governor, and in Union Territory, theCentral Government, the difference conceptually speakingbetween the expression “State Government” and the“Administration of Union Territory” clearly emerges.Therefore, there is no room for doubt that the expression“Administration of Union Territory”, Administrator howsoeverhaving been described, would not be comprehended in theexpression “State Government” as used in any enactment.”

The view of the High Court that the Administrator is the StateGovernment insofar as the Union Territory is concerned underSection 3(60) was held to be in error. The decisions in Satya DevBushahri [Satya Dev Bushahri v. Padam Dev, AIR 1954 SC587 : (1955) 1 SCR 549] and in State of Vindhya Pradesh v.Moula Bux [State of Vindhya Pradesh v. Moula Bux, (1962) 2SCR 794 : AIR 1962 SC 145] were distinguished since they wererendered prior to the amendment of Part VIII of the Constitutionin 1956 and before the insertion of Articles 239-A and 239-B. Theposition in law was set out as follows: (Goa Sampling case [GoaSampling Employees’ Assn. v. General Superintendence Co.of India (P) Ltd., (1985) 1 SCC 206 : 1985 SCC (L&S) 201] ,SCC p. 217, para 17)

A“17. … On conspectus of the relevant provisions of theConstitution and the 1963 Act, it clearly transpires that theconcept of State Government is foreign to the administrationof Union Territory and Article 239 provides that every UnionTerritory is to be administered by the President. The Presidentmay act through an Administrator appointed by him.BAdministrator is thus the delegate of the President. His positionis wholly different from that of Governor of State.Administrator can differ with his Minister and he must thenobtain the orders of the President meaning thereby of theCentral Government. Therefore, at any rate the AdministratorCof Union Territory does not qualify for the description of aState 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 SectionD2(a) of the COI Act would mean GNCTD, Union Territory.

136. It is not for us to deal with the argument of Mr. Naphade thatEntry 45 of List III confers legislative and executive competence onGNCTD and, therefore, GNCTD can pass an appropriate orderappointing Commission of Inquiry in exercise of its executive power.EIn the instant case, we are concerned with notification dated August 11,2015 which is passed under the COI Act. We, therefore, uphold thejudgment 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,F2000, the power to issue directions with the State Commission iswith 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, hereferred to Section 108 of the Electricity Act which gives StateGGovernment the power to give directions to the State ElectricityRegulatory Commission (SCRC). It reads as under:

“Section 108. (Directions by State Government):

(1) In the discharge of its functions, the State Commission shallbe guided by such directions in matters of policy involving publicinterest as the State Government may give to it in writing.

(2) If any question arises as to whether any such direction relatesto matter of policy involving public interest, the decision of theState Government thereon shall be final.”

138. He pointed out that similar powers are conferred upon theCentral Government under Section 107 of the Electricity Act, namely, togive 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 onthe same terms as Section 108 of the Electricity Act. This provisionreads as under:

“12. Powers of the Government.

(1) In the discharge of its functions, the Commission shall beguided by such directions in matters of policy involvingpublic interest as the Government may issue from time totime.

(2) If any question arises as to whether any such directionrelates to matter of policy involving public interest, thedecision of the Government thereon shall be final.

(3) The Government shall be entitled to issue policy directionsconcerning any subsidy to be allowed for supply ofelectricity or any other infrastructure services to any classEor classes of persons.

Provided that the Government shall contribute anamount to compensate the Board or any company affectedto the extent of the subsidy granted.

The Commission shall determine such amounts, the termsand conditions on which and the time within which suchamounts are to be paid by the Government.

(4) The Government shall consult the Commission in relationto any proposed legislation or rules concerning any policydirection and may take into account the recommendationsmade by the Commission.”

(Emphasis Supplied)

139. Certain definitions which were referred to by Mr. Sibal fromDER Act may also be noted. Under Section 2(d) of the DER Act, 2000

A“Government” means the Lieutenant Governor referred to in Article239AA of the Constitution” and under Section 2(g) “Lieutenant Governor”means the Lieutenant Governor of the National Capital Territory of Delhiappointed by the president under Article 239 read with Article 239AA ofthe Constitution”. Under Section 2(c), “Commission” means the DelhiElectricity Regulatory Commission referred in Section 3".B

140. His submission on the conjoint reading of the aforesaiddefinitions was that Government is defined as LG referred to in Article239AA of the Constitution. He argued that Constitution Bench whileinterpreting Article 239AA has categorically held that LG is to act on theaid and advice of the Council of Ministers, and only those matters areCexcepted where LG has to function in his own discretion, which was notthe case here. Moreover, DER Act was passed by Delhi LegislativeAssembly. Therefore, even the executive power of the Union will notbe there.

141. Mr. Sibal referred to the judgment of Constitution Bench inDNabam Rebia and Bamang Felix v. Deputy Speaker, ArunachalPradesh Legislative Assembly & Ors.[12] which discusses in detaildiscretionary power of the Governor under Article 163 of the Constitution.This judgment also provides instances of situations wherein Governormay exercise power “in his discretion” independent of, or, contrary toEaid and advice of Council of Ministers. Based on that, Mr. Sibal submittedthat exercise of powers under the DER Act does not fall within thedomain of discretionary power of the LG and, therefore, he is supposedto act on the aid and advice of Council of Ministers.

142. Reply of Mr. Maninder Singh to the aforesaid argumentsFwas that the Electricity Act, 2003 is Parliamentary enactment whichwas passed after the insertion of Article 239AA. Under Section 108 ofthe Electricity Act, 2003, it is the jurisdiction of the ‘State Government’to issue any direction to DERC and such State Government, in relationto Union Territory like Delhi, would mean Central Government as perSection 3(60) of the GC Act. He also referred to Section 83(1)(b) of theGElectricity Act, 2003 which makes it clear that for any Union Territory, itwould be Central Government which is the Appropriate Government.

143. While answering question No. 3 in the context of COI Act,we have held that the expression ‘State Government’ occurring in Section 12 (2016) 8 SCC 1H

2(a) of the said Act which defines ‘Appropriate Government’ would notinclude GNCTD. That conclusion is arrived at while interpreting theprovisions of Section 2(a) of the COI Act. However, here we areconcerned with the Electricity Act, 2003 which also defines ‘AppropriateGovernment’. Section 2(5) thereof reads as under:

“5. “Appropriate Government” means,-

(a) the Central Government,-

(i) in respect of generating company wholly or partly ownedby it;

(ii) in relation to any inter-State generation, transmission, tradingor supply of electricity and with respect to any mines, oil-fields,railways, national highways, airports, telegraphs, broadcastingstations and any works of defence, dockyard, nuclear powerinstallations;

(iii) in respect of the National Load Despatch Centre andRegional Load Despatch Centre;

(iv) in relation to any works or electric installation belonging toit or under its control;

(b) in any other case, the State Government having jurisdictionunder this Act;

144. As can be seen from clause (b) above, AppropriateGovernment is the State Government having jurisdiction under this Actin all those cases which do not come within the domain of ‘CentralGovernment’. This definition contained in Section 2(5) of the ElectricityAct is materially different from definition of Appropriate Government inSection 2(a) of the COI Act. Another important and distinguishing aspectis that in respect of Delhi, the DER Act has also been enacted by theState Legislative Assembly of NCT of Delhi to which President hasaccorded his consent. Under this Act, Delhi Electricity RegulatoryCommission (DERC) has been established to exercise the powersconferred on, and to perform the functions assigned to it under the saidAct. It acts as quasi-judicial body which is clear from Section 10 ofthe DER Act. Section 11 stipulates various functions which DERC issupposed to perform which include determination of tariff for electricity,wholesale, bulk, grid or retail, as the case may be; and to determine the

Atariff payable for the use of transmission facility etc. In essence, suchpowers are almost the same powers which are given to Central ElectricityRegulatory Commission (CERC). Thus, insofar as NCTD is concerned,it has its own Commission, namely, DERC. DER Act also stipulatespowers of Government in Part IV thereof. General powers of theGovernment, inter alia, include giving directions to the DERC in mattersBof policy involving public interest, as the Government may issue fromtime to time. These powers are akin to the powers given under Section108 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 toCin article 239AA of the Constitution;

145. Reading the aforesaid definition in the context of theConstitution Bench judgment would clearly mean that LG here has toact on the aid and advice of Council of Ministers, as such functions donot come within his discretionary powers.D

146. What follows from the aforesaid is that insofar as DER Actis concerned, it is an enactment enacted by Legislative Assembly ofNCTD. It operates within the NCTD. Government here means GNCTDi.e. LG who is supposed to act on the aid and advice of the Council ofMinisters. Under this Act, Delhi Government has power to issueEdirections to the DERC in matters of policies involving public interest.When such powers are conferred specifically to Delhi Governmentunder DER Act, it cannot be said that insofar as Section 108 of theElectricity Act, 2003 is concerned, the expression ‘State Government’therein would mean the Central Government. If such an interpretationFis given, there would clearly be conflict of jurisdiction in the NCTDinsofar as working of Electricity Act/DER Act are concerned. As aresult, and going by the dicta laid down by the Constitution Bench, weset aside the decision of the Delhi High Court on this aspect and holdthat 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 clearGthat we have not touched upon the merits of the said notification as thatis not the issue before us.

Issue No.5: Whether the Revenue Department of the GNCTDhad the power to revise the minimum rates of Agricultural Land(Circle Rates) under the provisions of Indian Stamp Act, 1899?

147. The GNCTD had issued the notification dated August 4,2015 revising the rates of Agricultural Land (Circle Rates) under theprovisions of Indian Stamp Act, 1899 and Delhi Stamp (Prevention ofUnder-Valuation of Instruments) Rules, 2007. Before issuing thisnotification, matter was not placed before the LG for his views orconcurrence. This notification reads as under:

“GOVERNMENT OF NATIONAL CAPITAL TERRITORY OFDELHI, REVENUE DEPARTMENT, S.SHAM NATH MARG,DELHI.

No.F.1(1953)/Regn.Br./Div.Com/HQ/2014/191

Dated 4[th] August, 2015

No.F.1(1953)/Regn.Br./Div.Com/HQ/2014-

In exercise of the powers conferred by sub-section(3) of Section27 the Indian Stamp Act, 1899 (2 of 1899) and rule 4 of the DelhiStamp (Prevention of Under - Valuation of Instruments) Rules,D2007 read with the Ministry of Home Affairs, Govt. of IndiaNotification No.S.O.1726 (No.F.215/61-Judl.-II) dated the 22ndJuly, 1961 and in supersession of this Department’s notificationNo.F.1(177)/Regn.Br./Div.Com./07/254-279 dated 14.03.2008; theLt. Governor of the National Capital Territory of Delhi, herebyrevises and notifies the minimum rates for the purposes ofEchargeability 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:-

These revised rates shall come into force with immediate effect.

By order and in the name of the Lt. Governor of the NationalCCapital 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, priorconcurrence of LG was pre-requisite for issuance of such anotification.

(b) Subject matter of the notification i.e. fixation of circle rateswould fall under Entry 18 of List II over which the Parliament hasthe exclusive power inasmuch as it stands specifically excludedfrom the purview of GNCTD.

149. Argument of the appellant/GNCTD is that fixation of circlerate is not relatable to Entry 18 of List II i.e. ‘land’. It is the submissionthat stamp duty is imposed on an instrument with regard to the title ofFthe land and not the land itself. Therefore, stamp duty would be leviedon an instrument and would affect the document evidencing the saidtransfer of the agricultural land, but not on the land itself. The occasionfor levy of stamp duty is the execution of the document/conveyance, asdistinguished from the immovable property which is the underlying subjectGmatter of the transaction dealt with in the document/conveyance. Thus,the order of 4[th] August, 2015 traceable to Entry 63 of List II, rather thanEntry 18 of List II. Entry 63 of List II reads as under:

‘Rates of stamp duty in respect of documents other than thosespecified in the provisions of List I with regard to rates ofstamp duty.’

150. The appellant has submitted that the phrase ‘other than thosespecified in the provisions of List I ‘ in Entry 63 List II is of noassistance to the Union of India. An analysis of Entry 63 of List II andEntry 91 of List I (which is the concerned provision of List I) shows thata distinction can be observed between the powers of the central andstate legislatures to impose/levy stamp duty. Entry 91 of List I reads asunder:

’91. Rates of stamp duty in respect of bills of exchange, cheques,promissory notes, bills of lading, letters of credit, policies ofinsurance, transfer of shares, debentures, proxies and receipts.’

151. The Union is empowered to levy stamp duty ONLY on thespecific types of instruments specified under Entry 91 of List I. But theState has been given the power to impose stamp duty on every othertype of document/instrument not mentioned under Entry 91 of List I.

152. It is also argued that it is general practice all over the countryfor State Governments to set the circle rates for conveyance of immovableproperties within the State. Examples of the same are Karnataka Stamp[Prevention of Undervaluation of Instrument Rules], 1977; Tamil NaduStamp [Prevention of Undervaluation of Instruments] Rules, 1968; AndhraPradesh 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 ofInstruments] Rules, 1978; Madhya Pradesh Stamp [Prevention ofUndervaluation of Instruments] Rules, 1975; Chhattisgarh Stamp[Prevention of Undervaluation of Instruments] Rules, 2001; Kerala Stamp[Prevention of Undervaluation of Instruments] Rules, 1968; MaharashtraStamp [Determination of true market value of property] Rules, 1995.

153. It was also pointed out that it was the Indian Stamp (DelhiAmendment) Act, 2001 which was passed by the Legislative Assemblyof Delhi on 28th March, 2001 and received Presidential- assent on 18[th]July, 2001 and the Indian Stamp (Delhi Amendment) Act, 2007 whichwas passed by the Legislative Assembly of Delhi on 18th September,2007 and received the Presidential assent on 5th November, 2007 whichin fact first dealt with the stamp duty payable on conveyance deeds inDelhi. Given that neither of these Acts have been challenged and in factthe Union has given its assent to these Acts, it is submitted that there

Acan be no question of the Union now questioning the power of theGNCTD to collect such stamp duty and fix circle rates in respect ofsuch collections.

154. The appellant also stated that Section 27(3) of the IndianStamp Act, as amended in Delhi, that too with the express consent ofBthe Union/President gives power to the Delhi Government to notifyminimum 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, chargeableCwith valorem duty, the Government may notify minimum ratesfor valuation of land.”

[Emphasis Supplied]

It is submitted that ‘Government’ under Section 27(3) must beread to mean “Government of NCT of Delhi”.D

155. In reply, the respondents submit that Section 27(3) of theIndian Stamp Act is concerned with notifying minimum rates for valuationof land and it has nothing to do with ‘rates of stamp duty’. As per therespondents, power to notify minimum rates for valuation of land (circlerates) is relatable to Entry 18 of List II which falls within the exclusiveEdomain of the Union. It is also argued that as per the law laid down inState of Gujarat & Ors. v. Akhil Gujarat Pravasi V.S. Mahamandal& Ors.[13], entry in the Seventh Schedule is to be given its widest possisbleinterpretation. According to respondents, Entry 63 of List II only dealswith ‘rates of stamp duty’ and, therefore, would not apply to ‘minimumFrates for valuation of land’ which is relatable to Entry 18 of List II. Itwas also argued that by virtue of the Presidential Orders dated July 22,1961 and September 07, 1966 under Article 239, the power of the Unionunder the Indian Stamp Act, 1899 for NCT Delhi had been delegated onthe LG. All the previous notifications for notifying the circle rates inDelhi (July 18, 2007, March 14, 2008, November 15, 2011 etc.) had beenGissued by the LG in exercise of his delegated power under Article 239.156. From the respective submissions, it becomes apparent thatthe entire controversy centers around the question as to whether theimpugned notification is relatable to Entry 18 of List II i.e. ‘land’ or theH 13 (2004) 5 SCC 155

subject matter falls within the scope of Entry 63 of List II. Entry 18 ofList II reads as under:

“18. Land, that is to say, rights in or over land, land tenures includingthe relation of landlord and tenant, and the collection of rents;transfer and alienation of agricultural land; land improvement andagriculture loans; colonization.”

We may also note the language of Entry 63 List II:

“63. Rates of stamp duty in respect of documents other than thosespecified in the provisions of List I with regard to rates of stampduty.”

157. Insofar as Entry 91 of List I is concerned, subject matterthereof is within the exclusive domain of the Centre/Parliament. It dealswith ‘rates of stamp duty in respect of wills of exchange, cheques,promissory notes, bills of lading, letters of credit, policies of insurance,transfer of shares, debentures, proxies and receipts’. It follows thatinsofar as instruments mentioned in Entry 91 of List I are concerned,rates of stamp duty of such documents are within the exclusive domainof the Union. In respect of other instruments, it is the State which hasthe necessary jurisdiction to fix the rates of stamp duty.

158. It would be pertinent to note that the High Court in theimpugned judgment has arrived at conclusion that notification datedAugust 4, 2015 revising the rates of agricultural land (circle rates) istraceable to Entry 63 of List II and not to Entry 18 of List II. We are inagreement with this conclusion. Said notification is issued under theprovisions of Indian Stamp Act and Delhi Stamp (Prevention of Under-Valuation of Instruments) Rules, 2007. Circle rates are fixed for thepurpose of payment of stamp duty. Therefore, they do not pertain to‘land’ namely rights in or over land, land tenures etc. or transfer ofalienation of agricultural land etc. Stamp duty is not duty on instrumentbut it is in reality duty on transfer of property. In that sense, as rightlyheld by the High Court, the occasion for levy of stamp duty is thedocument which is executed as distinguished from the transaction whichis embodied in the document.

159. Even after accepting the aforesaid plea of the GNCTD, theHigh Court has set aside the said notification on the ground that thisdecision of the Council of Ministers was without seeking views/

Aconcurrence of the LG. As per the High Court, such an order could notbe issued unless the decision of the Council of Ministers is communicatedto the LG.

160. From the judgment of the Constitution Bench, it is clear thatthe Council of Ministers have right to take such decision. DiscussionBto this extent of the High Court is expressed in Paras 107, 108, 116 and117 of its judgment may not be entirely correct. These paras read asunder:

“107. In the light of the above-noticed provisions, we have nomanner of doubt to conclude that every decision taken by theCouncil of Ministers shall be communicated to the Lt. Governorfor his views. The orders in terms of the decision of the Councilof Ministers can be issued only where no reference to the CentralGovernment is required as provided in Chapter V of theTransaction of Business Rules.

108. Making reference by the Lt. Governor to the CentralGovernment as provided under Chapter V of the Transaction ofBusiness Rules is possible only when the decision is communicatedto the Lt. Governor. Therefore, there is no substance in thecontention that an order can be passed pursuant to the decision ofthe Council of Ministers without communicating such decision tothe Lt.Governor for his views/concurrence with respect to any ofthe matters enumerated in List-II or List-III except the threereserved matters in Entries 1, 2 and 18 of List-II. The emphasissought to be laid by the learned Senior Counsels who appearedfor GNCTD on Rule 23 of the Transaction of Business Rules tosubstantiate the contention that those proposals which arementioned in Rule 23 alone are required to be submitted to Lt.Governor is misplaced. The word “essentially” employed in Rule23 makes clear the legislative intent that the proposals specified(i) to (viii) therein are not exhaustive. Any interpretation contrawould render the Transaction of Business Rules ultra vires Clause(4) of Article 239AA of the Constitution.

116. For the aforesaid reasons, we are of the considered viewthat it is mandatory under the Constitutional scheme tocommunicate the decision of the Council of Ministers to the Lt.

Governor even in relation to the matters in respect of which powerto make laws has been conferred on the Legislative Assembly ofNCTD and an order thereon can be issued only where the Lt.Governor does not take different view.

117. Hence, the contention on behalf of the Government of NCTof Delhi that the Lt. Governor is bound to act only on the aid andadvice of the Council of Ministers is untenable and cannot beaccepted.

161. The Constitution Bench judgment of this Court clarifies thatin all those matters which do not fall within the discretionary jurisdictionof the LG, the LG is bound to act on the aid and advice of Council ofMinisters. Further, majority opinion also holds that executive power ofthe GNCTD extends to all the subject matters contained in List II (exceptEntry 1, 2 and 18) as well as List III (wherein it has concurrent jurisdictionalong with the Central Government). That is the interpretation accordedto clause (4) of Article 239AA. At the same time, this clause contains aproviso as well which reads as under:

“Provided that in the case of difference of opinion between theLieutenant Governor and his Ministers on any matter, theLieutenant Governor shall refer it to the President for decisiongiven thereon by the President and pending such decision it shallbe competent for the Lieutenant Governor in any case where thematter, in his opinion, is so urgent that it is necessary for him totake immediate action, to take such action or to give such directionin 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 controversyat hand. Clause (4) stipulates Westminster style Cabinet systemof Government for NCT of Delhi where there shall be Councilof Ministers with the Chief Minister at the head to aid and advisethe Lieutenant Governor in the exercise of his functions in relationto matters with respect to which the Delhi Legislative Assemblyhas power to enact laws except in matters in respect of which theLieutenant Governor is required to act in his discretion.

216. The proviso to clause (4) of Article 239-AA stipulates thatin case of difference of opinion on any matter between the

Lieutenant Governor and his Ministers, the Lieutenant Governorshall refer it to the President for binding decision. Further, pendingsuch decision by the President, in any case where the matter, inthe opinion of the Lieutenant Governor, is so urgent that it isnecessary for him to take immediate action, the proviso makeshim competent to take such action and issue such directions as hedeems necessary.

217. conjoint reading of Article 239-AA(3)(a) and Article 239-AA(4) reveals that the executive power of the Government ofNCT of Delhi is coextensive with the legislative power of theDelhi Legislative Assembly which is envisaged in Article 239-AA(3) and which extends over all but three subjects in the StateList and all subjects in the Concurrent List and, thus, Article 239-AA(4) confers executive power on the Council of Ministers overall those subjects for which the Delhi Legislative Assembly haslegislative power.

218. Article 239-AA(3)(a) reserves Parliament’s legislative poweron all matters in the State List and Concurrent List, but clause (4)nowhere reserves the executive powers of the Union with respectto such matters. On the contrary, clause (4) explicitly grants tothe Government of Delhi executive powers in relation to mattersfor which the Legislative Assembly has power to legislate. Thelegislative power is conferred upon the Assembly to enact whereasthe policy of the legislation has to be given effect to by the executivefor which the Government of Delhi has to have coextensiveexecutive powers. Such view is in consonance with theobservation in Ram Jawaya Kapur [Ram Jawaya Kapur v. Stateof Punjab, AIR 1955 SC 549] which has been discussed elaboratelyin the earlier part of the judgment.

232. From the foregoing discussion, it is clear that the words“any matter” occurring in the proviso to Article 239-AA(4) do notnecessarily need to be construed to mean “every matter”. Ashighlighted in the authorities referred to hereinabove, the word“any” occurring in statute or constitutional provision is not to bemechanically read to mean “every” and the context in which theword has been used must be given due weightage so as to deducethe real intention and purpose in which the word has been used.

233. It has to be clearly understood that though “any” may notmean “every”, yet how it should be understood is extremelysignificant. Let us elaborate. The power given to the LieutenantGovernor under the proviso to Article 239-AA(4) contains therule of exception and should not be treated as general norm.The Lieutenant Governor is to act with constitutional objectivitykeeping in view the high degree of constitutional trust reposed inhim while exercising the special power ordained upon him unlikethe Governor and the President who are bound by the aid andadvice of their Ministers. The Lieutenant Governor need not, in amechanical manner, refer every decision of his Ministers to thePresident. He has to be guided by the concept of constitutionalmorality. There have to be some valid grounds for the LieutenantGovernor to refer the decision of the Council of Ministers to thePresident in order to protect the interest of NCT of Delhi and theprinciple of constitutionalism. As per the 1991 Act and the Rulesof Business, he has to be apprised of every decision taken by theCouncil of Ministers. He cannot change the decision. That apart,there is no provision for concurrence. He has the authority todiffer. But it cannot be difference for the sake of difference. Itcannot be mechanical or in routine matter. The power has beenconferred to guide, discuss and see that the administration runsfor the welfare of the people and also NCT of Delhi that has beengiven special status. Therefore, the word “any” has to beunderstood treating as guidance meant for the constitutionalauthority. He must bear in mind the constitutional objectivity, theneeded advice and the realities.

234. The proviso to Article 239-AA(4), we say without any fearof contradiction, cannot be interpreted in strict sense of themere words employed treating them as only letters without payingheed to the thought and the spirit which they intend to convey.They are not to be treated as bones and flesh without nerves andneurons that make the nerves functional. We feel, it is necessaryin the context to read the words of the provision in the spirit ofcitizenry participation in the governance of democratic politythat is republican in character. We may hasten to add that whenwe say so, it should not be construed that there is allowance ofenormous entry of judicial creativity, for the construction one

ABCD

intends to place has its plinth and platform on the Preamble andprecedents pertaining to constitutional interpretation and purposiveinterpretation keeping in view the conception of sense and spiritof the Constitution. It is, in way, exposition of judicial sensibilityto the functionalism of the Constitution. And we call it constitutionalpragmatism.

235. The authorities in power should constantly remind themselvesthat they are constitutional functionaries and they have theresponsibility to ensure that the fundamental purpose ofadministration is the welfare of the people in an ethical manner.There is requirement of discussion and deliberation. The finenuances are to be dwelled upon with mutual respect. Neither ofthe authorities should feel that they have been lionised. Theyshould feel that they are serving the constitutional norms, valuesand concepts.236. Interpretation cannot ignore the conscience of theConstitution. That apart, when we take broader view, we arealso alive to the consequence of such an interpretation. If theexpressions “in case of difference” and “on any matter” areconstrued to mean that the Lieutenant Governor can differ onany proposal, the expectation of the people which has its legitimacyin democratic set-up, although different from States asunderstood under the Constitution, will lose its purpose in simplesemantics. The essence and purpose should not be lost in grammarlike the philosophy of geometry cannot be allowed to lose itsuniversal metaphysics in the methods of drawing. And that is why,we deliberated upon many concept. Thus, the Administrator, asper the Rules of Business, has to be apprised of each decisiontaken by Minister or Council of Ministers, but that does notmean that the Lieutenant Governor should raise an issue in everymatter. The difference of opinion must meet the standards ofconstitutional trust and morality, the principle of collaborativefederalism and constitutional balance, the concept of constitutionalgovernance and objectivity and the nurtured and cultivated ideaof respect for representative Government. The difference ofopinion should never be based on the perception of “right to differ”and similarly the term “on any matter” should not be put on sucha platform as to conceive that as one can differ, it should be

norm on each occasion. The difference must meet the concept ofconstitutional trust reposed in the authority and there has to beobjective assessment of the decision that is sent for communicationand further the rationale of difference of opinion should bedemonstrable and it should contain sound reason. There shouldnot be exposition of the phenomenon of an obstructionist butreflection of the philosophy of affirmative constructionism and avisionary. The constitutional amendment does not perceive asituation of constant friction and difference which gradually buildsa structure of conflict. At the same time, the Council of Ministersbeing headed by the Chief Minister should be guided by valuesand prudence accepting the constitutional position that NCT ofDelhi is not State.”

In concurring opinion on this aspect, Chandrachud, J. has alsogiven lucid commentary.

163. It becomes clear from the above that even when the executivewing of Delhi Government takes decision, the LG is also empoweredto form its opinion ‘on any matter’ which may be different from thedecision taken by his Ministers. Any matter does not mean each and‘every matter’ or ‘every trifling matter’ but only those rare andexceptional matters where the difference is so fundamental to thegovernance of the Union Territory that it deserved to be escalated to thePresident. Therefore, the LG is not expected to differ routinely with thedecision of Council of Minister. Difference should be on cogent andstrong reasons. However, this limitation pertains to LG’s exercise ofpower. At the same time, the proviso recognises that there may becontingencies where LG and his Ministers may differ. In suchcircumstances, LG is supposed to refer the matter to the President fordecision and act according to the decision given thereon by the President.It means that final say, in case of different between LG and Council ofMinisters, is that of the President. Such scheme of things clearlycontemplates that the Council of Ministers is supposed to convey itsdecisions to the LG to enable the LG to form his view thereupon. Thedecision cannot be implemented without referring the same to the LG inthe first instance. More pertinently, the decision here touches upon thegovernance of the UT. Therefore, we agree with the conclusion of theHigh Court that views of LG should have been taken before issuingcircular dated August 4, 2015.

AHowever, we would like to add that normally, and generally, theLG is expected to honour the wisdom of the council of ministers. He isalso expected to clear the files expeditiously and is not supposed to sitover it unduly. He’s under duty to bear in mind expediency and urgencyof the subject matter of the decisions taken by the GNCTD, where eversituation so demands. That in fact is the facet of good governance.BLikewise , the executive is also expected to give due deference to theunique nature of the role assigned to the LG in the Constitutional scheme.By and large, it demands 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 workingCof the system.

Issue No.6: Whether it is the Lieutenant Governor or theGNCTD which has the power to appoint the Special PublicProsecutor under Section 24 of the Cr.PC.?

164. Special Public Prosecutor is appointed as per the provisionsDof Section 24(8) of Cr.P.C. which is to the following effect:

“24. Public Prosecutors. …

(8) The Central Government or the State Government mayappoint, for the purposes of any case or class of cases, personEwho has been in practice as an advocate for not less than tenyears as Special Public Prosecutor.”

165. As is clear from the above, power to appoint Special PublicProsecutor is conferred both upon the Central Government and the StateGovernment. The question, therefore, arises is as to whether theFexpression ‘State Government’ would include GNCTD. As per theappellant, once the Government of NCT of Delhi is found to be the“State Government” under the Cr.P.C., necessarily the power to appointthe Special Public Prosecutor will also lie with the Government of NCTof Delhi. If the contention of the Union of India is to be accepted thenunder the Cr.P.C. both the Central Government and State GovernmentGwill be the Central Government alone, which will be completely absurdlegal 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 theelected government of NCT of Delhi. Referring to the impugned judgment,on this issue, it is pointed out that the High Court has held that theH

definition of Section 3(60) of the General Clauses Act, 1897 will apply tointerpret the term “State Government” and it would thus be the CentralGovernment, which would be the State Government. It is argued thatthis approach is wrong as the issue of appointment of public prosecutorrelates to Criminal Procedure, i.e. Entry 2 of List II over which theDelhi Assembly and Executive exercise power, the Lt. Governor mustact on the aid and advice of the Council of Ministers of the NCT ofDelhi. It is contended that this convoluted method of reasoning was notnecessary and the entire issue could be resolved if the Government ofNCT of Delhi was held to be State Government of NCT of Delhi byapplication of definition of State in Section 3(58) of General ClausesAct, 1897 to interpret State Government in the Cr.P.C., instead ofdefinition of Section 3(60) of the GC Act which is obviously repugnantto the subject and context of Cr.P.C.166. We may mention at this stage that writ petition was filed inthe High Court by the GNCTD challenging the order of the SpecialJudge dated September 7, 2015 and order of LG dated September 4,2015 appointing Shri S.K. Gupta, Advocate as Special Public Prosecutorto conduct the prosecution in FIR No. 21 of 2012 dated December 17,2012. The GNCTD had appointed another lawyer as Special PublicProsecutor. 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 Union Territory, by virtue of Section 3(60) ofthe GC Act, it is the Central Government which should be the StateGovernment. Further, since by notification dated March 20, 1974,administrator is empowered to exercise powers and the expression ‘StateGovernment’ would mean the LG. At the same time, the High Court hasalso observed that power to appoint Public Prosecutor is relatable toEntries 1 and 2 of List III in respect of which GNCTD has legislativecompetence. Therefore, the LG must appoint Special Public Prosecutoron the aid and advice of Council of Ministers.

167. As is clear from the arguments of GNCTD noted above, it isaggrieved by that part of the impugned order of the High Court wherebyState Government in respect of NCTD is held to be the CentralGovernment by virtue of Section 3(60) of the GC Act. On the otherhand, the Union Government is aggrieved by that portion of the order ofthe High Court where it is held that LG must appoint Special PublicProsecutor on the aid and advice of Council of Ministers.

A168. Arguments on behalf of the Union of India is that by virtue ofNotification dated March 20, 1974, President under Article 239 hadempowered the Administrator to exercise all the powers conferred uponState Government by the Cr.P.C. except that conferred by Section 8and 477. Therefore, the power under Section 24 to appoint Prosecutoror Special Public Prosecutor vests with the LG and not the GovernmentBof NCT. So far as Entries 1 and 2, List III are concerned, it is arguedthat undoubtedly Legislative Assembly of NCT has legislative competencequa said entries but it is subservient to the legislative power of the Union.It is contended that legislative competence of NCT Delhi cannot derogatefrom or be repugnant to law of Parliament. And once Cr.P.C., 1973 hasCbeen made by the Parliament dealing exhaustively and comprehensivelywith criminal procedure the executive power of GNCTD as well as thelegislative power would stand eroded and become subservient to thecentral executive. Therefore, GNCTD can exercise executive poweronly upon an express conferment of power by Cr.P.C. There is no suchconferment. It is the Central Government alone which would haveDindependent power to appoint Special Public Prosecutor. It is also arguedthat assuming without admitting that under Section 24 both CentralGovernment are empowered to appoint Public Prosecutor/Special PublicProsecutor under Section 24(1) and 24(8), the Central Government cannotbe prevented or restrained from making appointment, and wherever theECentral Government has already made an appointment of PublicProsecutor with respect to case or class of clases, the UT Governmentwould not be competent to make parallel appointment.

169. We find that in answering this question, the High Court hasentered into the following discussion:F

“300. As could be seen, Section 24(8) of Cr.P.C. empowers theState Government for appointing Special Public Prosecutor forthe purposes of any case or class of cases. Admittedly, NCT ofDelhi is Union Territory and not State. As per Sections 3(8),3(58) and 3(60) of the General Clauses Act, 1897, the expressionG‘State Government’ for the purpose of Union Territory meansthe President and includes the Administrator in terms of Article239 of the Constitution read with the Notification dated 20.03.1974{See Para 167 (supra)} under which the Administrators of all theUnion Territories were empowered to exercise the powers of theState Government under Cr.P.C. So far as NCT of Delhi is

concerned, the ‘State Government’ thus means the Lt. Governorfor the purpose of Section 24(8) of Cr.P.C. However, the powerto appoint Public Prosecutor is relatable to Entries 1 and 2 ofList III in respect of which the Government of NCT of Delhi haslegislative competence under Article 239AA of the Constitution.As corollary, the exercise of the functions relating to the saidsubject by the Lt. Governor under Article 239AA(4) of theConstitution shall be on the aid and advice of the Council ofMinisters with the Chief Minister at the head.

301. Hence, we are unable to accept the contention of the Unionof India that the Council of Ministers have no role to play in exerciseof the powers under Section 24(8) of Cr.P.C. In our consideredopinion, the Lt. Governor under Section 24(8) of Cr.P.C. does notact eo-nominee but exercises the executive functions of the State.Hence, the said power has to be exercised on the aid and adviceof the Council of Ministers in terms of Clause (4) of Article 239AAof the Constitution.

302. For the above reasons, we are of the view that it is not opento the Lt. Governor to appoint the Special Public Prosecutor onhis own without seeking aid and advice of the Council of Ministers.

303. In the circumstances, the impugned order dated 07.09.2015passed by the Special Judge-07 in FIR No.21/2012 is hereby setaside and there shall be direction to the Special Judge to pass anappropriate 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, theexpression ‘State Government’ for the purposes of UnionTerritory means the President and includes the Administrator interms of Article 239A of the Constitution.

(b) Insofar as NCT of Delhi is concerned, the ‘State Government’,thus, means the Lieutenant Governor for the purposes of Section24(8) of Cr.P.C.

171. Though, we have accepted the interpretation, as given bythe High Court in respect of the provisions of the GC Act mentionedabove while discussing the expression ‘State Government’ in the contextof COI Act, this position is clarified while dealing with the same expression

Aoccuring in Section 2(5) of the Electricity Act, 2003. We have made itclear that it would depend upon language used in defining StateGovernment in particular enactment. We have also pointed out thedifference in the definitions of Appropriate Government, under the COIAct and Electricity Act. This becomes important in the light of decisioncontained in the Constitution Bench judgment which clearly holds thatBunder various circumstances, the expression State Government wouldbe relatable to GNCTD, notwithstanding the fact that it continues to bethe Union Territory. The Constitution Bench judgment has also notaccepted the opinion of the High Court insofar as it treats StateGovernment as the Lieutenant Governor.

172. In any case, it may not be necessary to dwell much upon thisaspect. The High Court has also categorically held that the power toappoint Public Prosecutor is relatable to Entries 1 and 2 of List III. Inour opinion, the High Court has rightly held that in respect of these entries,the Government of NCT of Delhi has legislative competence under ArticleD239AA of the Constitution and that the LG under Article 239AA(4) ofthe 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 theConstitution Bench. We, therefore, hold that Lieutenant Governor, whileappointing the Special Public Prosecutor, is to act on the aid and adviceof the Council of Ministers. This issue is answered accordingly.E

173. All the appeals stand disposed of by answering the issues inthe manner aforesaid. Contempt Petition also stands disposed of.

ASHOK BHUSHAN, J.

1. I have gone through the erudite and elaborate judgment of myFesteemed brother, Justice A.K. Sikri. Justice A.K. Sikri, in his opinionhas noted the details of facts giving rise to these appeals, order passed inthese appeals referring it to the Constitution Bench and the judgment ofConstitution Bench delivered on 04.07.2018. My Brother has noted theelaborate submissions made before us, after the Constitution Bench hasGanswered the reference and sent back the matter to the regular Benchfor deciding these appeals. The submissions made before us by learnedcounsel for the parties having been elaborately noted in the opinion ofmy esteemed Brother, I feel no necessity of burdening this judgment byreproducing the submissions again. Justice Sikri has framed six issuesin paragraph Nos. 63 to 68 for consideration in these appeals, which areHas follows:-

63)The first issue is whether the exclusion of “Services” relatableto Entry 41 of List II of the Seventh Schedule from thelegislative and executive domain of the NCT of Delhi, videnotification of the Government of India dated May 21, 2015, isunconstitutional and illegal?

64)The second issue is whether the exclusion of the jurisdictionof the Anti-Corruption Branch (ACB) of the NCT of Delhi toinvestigate offences committed under the Prevention ofCorruption Act, 1987 by the officials of Central Governmentand limiting the jurisdiction of the ACB to the employees ofGNCTD alone is legal? (These two issues arise in Civil AppealNo. 2357 of 2017).

65)The third issue is raised in Civil Appeal Nos. 2358, 2359 and2360 of 2017. In all these three appeals, the common issue iswhether the GNCTD is an “Appropriate Government” underthe Commission of Enquiry Act, 1952?

66)The fourth issue, which is raised in Civil Appeal No. 2363 of2017, is: Whether under Section 108 of the Electricity Act,2003 and under Section 12 of the Delhi Electricity ReformsAct, 2000, the power to issue directions with the StateCommission 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 nominatingDirectors to Distribution Companies in Delhi under the DelhiElectricity Reforms Act, 2000 read with Delhi ElectricityReforms (Transfer Scheme) Rules, 2001, without obtaining theconcurrence of the Lieutenant Governor are valid?

67)The fifth issue is common to Civil Appeal No. 2362 of 2017filed by the GNCTD and Civil Appeal No. 2364 of 2017 filedby Union of India, wherein the issue is whether the RevenueDepartment of the GNCTD has the power to revise theminimum rates of Agricultural Land (Circle Rates) under theprovisions of Indian Stamp Act, 1899?

68)The sixth issue, which is the subject matter of Criminal AppealNo. 277 of 2018, pertains to the appointment of Special PublicProsecutors, viz., whether it is the Lieutenant Governor or the

AGNCTD which has the power to appoint the Special PublicProsecutor under Section 24 of the Cr.P.C.?

2. I am in full agreement with the conclusions arrived at by myesteemed Brother on Issue Nos. 2, 3, 4, 5 and 6. I do not intend to addanything on the above issues. On Issue No.1, I do not entirely agreeBwith the opinion of my esteemed brother, however, I am in agreementwith his opinion that Entry 41 of List II of the Seventh Schedule of theConstitution is not available to the Delhi Legislative Assembly. I proceedto consider the Issue No.1.

3. As noted above with regard to decisions on all other issues asCgiven 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 ofIndia) filed against the judgment of the Delhi High Court dated 04.08.2016in 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. UnionDof India) was filed challenging the notifications dated 21.05.2015 and23.07.2014 issued by the Govt. of India, Ministry of Home Affairsempowering the Lt. Governor to exercise the powers in respect of mattersconnected with “Services”. The notification dated 21.05.2015 which waschallenged in Writ Petition (C)No.5888 of 2015 was to the followingeffect:E

“MINISTRY OF HOME AFFAIRSNOTIFICATION

New Delhi, the 21st May, 2015

S.O. 1368(E).—Whereas article 239 of the Constitution providesthat every Union Territory shall be administered by the Presidentacting, to such extent as he thinks fit, through an administrator tobe 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 ofDelhi shall be called the National Capital Territory of Delhi andGthe administrator thereof appointed under article 239 shall bedesignated as the Lieutenant Governor;

And whereas sub-clause (a) of clause (3) of article 239AA statesthat the Legislative Assembly shall have power to make laws forthe whole or any part of the National Capital Territory with respectto any of the matters enumerated in the State List or in the

Concurrent List in so far as any such matter is applicable to UnionTerritories except matters with respect to Entries 1, 2 and 18 ofthe State List and Entries 64, 65 and 66 of that List in so far asthey relate to the said Entries 1, 2 and 18; and whereas Entry 1relates to ‘Public Order’, Entry 2 relates to ‘Police’ and Entry 18relates to ‘Land’.

And whereas sub-clause (a) of clause (3) of article 239AA alsoqualifies the matters enumerated in the State List or in theConcurrent List in so far as any such matter is applicable to UnionTerritories. Under this provision, reference may be made toEntry 41 of the State List which deals with the State PublicServices, State Public Service Commission which do not exist inthe National Capital Territory of Delhi.

Further, the Union Territories Cadre consisting of IndianAdministrative Service and Indian Police Service personnel iscommon to Union Territories of Delhi, Chandigarh, Andaman andNicobar Islands, Lakshadweep, Daman and Diu, Dadra and NagarHaveli, Puducherry and States of Arunachal Pradesh, Goa andMizoram which is administered by the Central Government throughthe Ministry of Home Affairs; and similarly DANICS and DANIPSare common services catering to the requirement of the UnionTerritories of Daman & Diu, Dadra Nagar Haveli, Andaman andNicobar Islands, Lakshadweep including the National CapitalTerritory of Delhi which is also administered by the CentralGovernment through the Ministry of Home Affairs. As such, it isclear that the National Capital Territory of Delhi does not have itsown State Public Services. Thus, ‘Services’ will fall within thiscategory.And whereas it is well established that where there is no legislativepower, 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 StateList being ‘Public Order’, ‘Police’ and ‘Land’ respectively andEntries 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 LegislativeAssembly of the National Capital Territory of Delhi andconsequently the Government of NCT of Delhi will have noexecutive power in relation to the above and further that power in

relation to the aforesaid subjects vests exclusively in the Presidentor his delegate i.e. the Lieutenant Governor of Delhi.

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

“(i) subject to his control and further orders, the LieutenantGovernor of the National Capital Territory of Delhi, shall inrespect of matters connected with ‘Public Order’, ‘Police’,‘Land’ and ‘Services’ as stated hereinabove, exercise thepowers 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 CapitalTerritory of Delhi may, in his discretion, obtain the views of theChief Minister of the National Capital Territory of Delhi inregard to the matter of ‘Services’ wherever he deems itappropriate.

2. In the Notification number F. 1/21/92-Home (P) Estt. 1750dated 8th November, 1993, as amended vide notification dated23rd July, 2014 bearing No. 14036/4/2014-Delhi-I (Pt. File), forparagraph 2 the following paragraph shall be substituted, namely:—

“2. This notification shall only apply to officials and employeesof the National Capital Territory of Delhi subject to theprovisions 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 takeany cognizance of offences against Officers, employees andfunctionaries of the Central Government”.

3. This Notification supersedes earlier Notification numberS.O. 853(E) [F. No. U-11030/2/98- UTL] dated 24th September,1998 except as respects things done or omitted to be done beforesuch supersession.

[F. No. 14036/04/2014-Delhi-I (PartFile)]RAKESH SINGH, Jt. Secy.”

5. The Government of India, Ministry of Home Affairs issuedabove notification on the premise that Entry 41 of List II which dealswith “State public services; State Public Service Commission” is notavailable to the Legislative Assembly of the National Capital Territoryof Delhi which has been expressly stated so in the notification. TheGovernment of NCT of Delhi (hereinafter referred to as “GNCTD”)aggrieved by the notification has filed Writ Petition (C)No.5888 of 2015in Delhi High Court. The Delhi High Court vide its judgment dated04.08.2016 has decided Writ Petition (C)No.5888 of 2015 along withother writ petitions. The conclusion of the judgment dated 04.08.2016 ofthe Delhi High Court are summarised in paragraph No.302. The DelhiHigh Court in paragraph No.302(v) laid down following:

“302(v) The matters connected with “Services” fall outside thepurview of the Legislative Assembly of NCT of Delhi. Therefore,the direction in the impugned Notification S.O. No. 1368(E) dated21-5-2015 that the Lieutenant Governor of the NCT of Delhi shall

in respect of matters connected with “Services” exercise thepowers and discharge the functions of the Central Government tothe extent delegated to him from time to time by the President isneither illegal nor unconstitutional.”

The Delhi High Court, in result, dismissed Writ Petition (C)No.5888of 2015.

6. While hearing this batch of appeals issues arose regarding theinterpretation that needed to be given to Article 239AA of the Constitutionof India. Two-Judge Bench directed for placing the matter before ChiefJustice for constituting Constitution Bench. On the above referenceorder, five-Judge Constitution Bench was constituted and matter washeard by five-Judge Constitution Bench which delivered its judgment on04.07.2018. The main judgment of the Constitution Bench had beenauthored by Justice Dipak Misra, C.J. (as he then was) for himself andfor Dr. Justice A.K. Sikri and Justice A.M. Khanwilkar. Two otherseparate opinions were also delivered, one by Dr. Justice D.Y.Chandrachud and one by myself, (Justice Ashok Bhushan). After thejudgment of the Constitution Bench, the matter has been placed beforethis Bench for deciding all these appeals.

7. Before this Bench elaborate submissions have been made byseveral eminent counsel. The submissions made before us have been

Aelaborately noticed by Justice A.K. Sikri which need no repetition in thisorder. The Constitution Bench having answered the reference vide itsjudgment dated 04.07.2018, we are required to decide these appeals asper the opinion of the Constitution Bench. Article 145 clause (3) of theConstitution of India provides as follows:

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

Provided that, where the Court hearing an appeal under any ofCthe provisions of this chapter other than Article 132 consists ofless than five Judges and in the course of the hearing of the appealthe Court is satisfied that the appeal involves substantial questionof law as to the interpretation of this Constitution the determinationof which is necessary for the disposal of the appeal, such Courtshall refer the question for opinion to Court constituted as requiredDby this clause for the purpose of deciding any case involving sucha question and shall on receipt of the opinion dispose of the appealin conformity with such opinion.”

8. The expression “shall on receipt of the opinion dispose of theappeal in conformity with such opinion” occurring in proviso to ArticleE145 clause (3) obliges this Bench to dispose of the appeal in conformitywith such opinion. We, thus, need to find as to what is the opinion of theConstitution Bench in accordance with which the appeal is to be disposedof. On first question as noted above, what is opinion of the ConstitutionBench has to be ascertained to apply the same in deciding the appeal.F9. Shri Rakesh Dwivedi, learned senior counsel and Shri Maninder

9. Shri Rakesh Dwivedi, learned senior counsel and Shri ManinderSingh, learned Additional Solicitor General(as he then was) submittedthat the majority judgment of the Constitution Bench authored by JusticeDipak Misra, C.J. (as he then was) has neither considered the submissionthat Entry 41 of List II of the VIIth Schedule of the Constitution is notGavailable to Legislative Assembly of Delhi nor answered the said question.It is submitted that although before the Constitution Bench it wasemphatically submitted that as per Article 239AA sub-clause (3)(a) theLegislative Assembly shall have power to make laws with respect toany 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 wasthat all matters enumerated in State List and Concurrent List shall notbe ipso facto available to Legislative Assembly of Delhi and Legislativepower is given only of those matters which matters are applicable toUnion Territory of Delhi. It is submitted that the Constitution Bench hasspecifically noted the above argument but has neither considered nordecided the issue, hence, the issue has to be considered and decided bythis Bench.

10. Entry 41 of List II which is the subject matter of considerationis as follows:

“41.State public services; State Public

Service Commission.”

11. We may first notice that the Constitution Bench speakingthrough Justice Dipak Misra, C.J. (as he then was) as well as two otheropinions have noted that the controversy in individual appeals need notto be dwelled upon by the Constitution Bench as the Constitution Benchis to answer only the constitutional issues. In the opinion of Justice DipakMisra, C.J. (as he then was) following was stated in paragraph 13:

“13. Having prefaced thus, we shall now proceed to state thecontroversy in brief since in this batch of appeals which has beenreferred to the Constitution Bench, we are required to advert tothe issue that essentially pertains to the powers conferred on theLegislative Assembly of the National Capital Territory of Delhiand the executive power exercised by the elected Government ofNCT of Delhi. The facts involved and the controversy raised ineach individual appeal need not be dwelled upon, for we onlyintend to answer the constitutional issue.”

12. In paragraph 486 of the judgment (in my opinion) followingwas stated:

“486. These appeals, thus, have been placed before thisConstitution Bench. At the outset, it was agreed between thelearned counsel for the parties that this Constitution Bench mayonly answer the constitutional questions and the individual appealsthereafter will be decided by appropriate regular Benches.”

13. The submissions which are being pressed before us by ShriRakesh Dwivedi as well as Shri Maninder Singh were also pressed before

Athe Constitution Bench, the specific submission was that the power ofLegislative Assembly of Delhi on subject matter provided in List II andIII 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 isuseful to notice that in paragraph 39 of the judgment of Justice DipakMisra, C.J. (as he then was) following has been noticed:B

“39. The respondents also contend that although Article 239-AAconfers on the Legislative Assembly of Delhi the power to legislatewith respect to subject-matters provided in List II and List III ofthe Seventh Schedule, yet the said power is limited by the verysame Article when it employs the phrase “insofar as any suchCmatter is applicable to Union Territories…” and also by specificallyexcluding from the legislative power of the Assembly certain entriesas delineated in Article 239-AA(3)(a). This restriction, as per therespondents, limits the power of the Legislative Assembly tolegislate and this restriction has to be understood in the context ofDconferment 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 positionthat NCT of Delhi is not State and it remains Union Territory. In thisreference, in paragraph Nos. 196 and 201 of the judgment following hasEbeen laid down:

“196. Thus, NDMC makes it clear as crystal that all UnionTerritories under our constitutional scheme are not on the samepedestal and as far as NCT of Delhi is concerned, it is not Statewithin the meaning of Article 246 or Part VI of the Constitution.Though NCT of Delhi partakes unique position after the Sixty-ninth Amendment, yet in sum and substance, it remains UnionTerritory which is governed by Article 246(4) of the Constitutionand to which Parliament, in the exercise of its constituent power,has given the appellation of the “National Capital Territory ofDelhi”.

201. In the light of the aforesaid analysis and the ruling of thenine-Judge Bench in NDMC, it is clear as noonday that by nostretch of imagination, NCT of Delhi can be accorded the statusof State under our present constitutional scheme and the statusof the Lieutenant Governor of Delhi is not that of Governor of

State, rather he remains an Administrator, in limited sense,working with the designation of Lieutenant Governor.”

15. Discussion being confined only to Legislative power conferredon the Delhi Legislative Assembly it is useful to notice the opinionexpressed by the Constitution Bench in the above regard. In paragraphNos. 217 and 219 following has been laid down:

“217. Sub-clause (a) of clause (3) of Article 239-AA establishesthe power of the Delhi Legislative Assembly to enact laws forNCT of Delhi with respect to matters enumerated in the StateList and/or Concurrent List except insofar as matters with respectto 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 thatParliament has the power to make laws for NCT of Delhi on anyof the matters enumerated in the State List and the ConcurrentList and at the same time, the Legislative Assembly of Delhi alsohas the legislative power with respect to matters enumerated inthe State List and the Concurrent List except matters with respectto entries which have been explicitly excluded from Article 239-AA(3)(a).”

16. In the above paragraphs Constitution Bench held that the powerof the Legislative Assembly to make laws of NCT of Delhi is with respectto matters enumerated in State List and the Concurrent List except in sofar as matters with respect to and which relate to entries 1,2 and 18 ofthe State List. What is noticed in paragraph No. 217 is what is stated ingeneral terms in Article 239AA(3)(a) of the Constitution. The ConstitutionBench has not bestowed its consideration on the purpose and intent ofexpression “with respect to any of the matters enumerated in the StateList or in the Concurrent List in so far as any such matter is applicable toUnion Territory of Delhi”. The reason is not far to seek. Individual issueswhich had arisen in different appeals were not touched by the ConstitutionBench leaving it open to be decided by the regular Bench afterconstitutional questions are answered. Whether the “services” are withinlegislative competence of Delhi Legislative Assembly is one of the issueswhich has directly arisen in C.A.No.2357 of 2017. Thus, there is noopinion of Constitution Bench as to whether Entry 41 of List II is availableto Legislative Assembly of Delhi or not except general statement thatLegislative Assembly of Delhi shall have power to make laws with respect

Ato any of the matters enumerated in List I and List II except Entries 1, 2and 18 of State List.

17. We may also notice the conclusion recorded by the ConstitutionBench speaking through Justice Dipak Misra, C.J. (as he then was) inparagraph No.284. The conclusion in paragraph No.284.13 is as follows:

“284.13. With the insertion of Article 239-AA by virtue of theSixty-ninth Amendment, Parliament envisaged representativeform of Government for NCT of Delhi. The said provision intendsto provide for the Capital directly elected Legislative Assemblywhich shall have legislative powers over matters falling within theCState List and the Concurrent List, barring those excepted, and amandate upon the Lieutenant Governor to act on the aid and adviceof the Council of Ministers except when he decides to refer thematter to the President for final decision.”

18. As noticed above the Constitution Bench in paragraph No.39Dextracted above has noticed the submissions of the counsel for therespondents that words “insofar as any such matter is applicable to UnionTerritories ...” in Article 239AA(3)(a) restrict the Legislative power ofthe Legislative Assembly of Delhi to only those entries which are onlyapplicable to Union Territories and not all. The elaborate discussion onits answer is not found in the majority opinion expressed by Justice DipakEMisra, C.J. (as he then was). The submission having been made beforethe Constitution Bench which submission was considered in other twoopinions expressed by Dr. Justice D.Y. Chandrachud and myself, it isuseful to notice as to what has been said in other two opinions in theConstitution Bench.

19. Dr. Justice D.Y. Chandrachud in his opinion has dealt with thesubmission under the separate heading as indicated at Serial No.K(v) inthe Index in the beginning of the judgment which is to the followingeffect:

“K(v) “Insofar as any such matter is applicable to UnionGTerritories”

20. In pages 736 and 737 of the judgment of Dr.Justice D.Y.Chandrachud, the said submission has been considered in paragraphNos. 461, 462 and 463 and following has been laid down:

“461. Article 239-AA(3)(a) permits the Legislative Assembly ofHthe 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 theearlier entries) and on the Concurrent List, “insofar as any suchmatter is applicable to Union Territories”. In forming anunderstanding of these words of Article 239-AA(3)(a), it has tobe noticed that since the decision in Kanniyan right through tothe nine-Judge Bench decision in NDMC, it has been held that theexpression “State” in Article 246 does not include UnionTerritory. The expression “insofar as any such matter is applicableto Union Territories” cannot be construed to mean that theLegislative Assembly of NCT would have no power to legislateon any subject in the State or Concurrent Lists, merely by the useof the expression “State” in that particular entry. This is not acorrect reading of the above words of Article 239-AA(3)(a). Aswe see below, that is not how Parliament has construed them aswell.462. Section 7(5) of the GNCTD Act provides that salaries ofthe Speaker and Deputy Speaker of the Legislative Assemblymay be fixed by the Legislative Assembly by law. Section 19provides that the Members of the Legislative Assembly shallreceive salaries and allowances as determined by the LegislativeAssembly by law. Section 43(3) similarly provides that the salariesand allowances of Ministers shall be determined by the LegislativeAssembly. However, Section 24 provides that Bill for the purposehas to be reserved for the consideration of the President. Parliamentwould not have enacted the above provisions unless legislativecompetence resided in the States on the above subject. Thesubjects pertaining to the salaries and allowances of Members ofthe Legislature of the State (including the Speaker and DeputySpeaker) and of the Ministers for the State are governed by Entry38 and Entry 40 of the State List. The GNCTD Act recognisesthe legislative competence of the Legislative Assembly of NCTto enact legislation on these subjects. The use of the expression“State” in these entries does not divest the jurisdiction of theLegislative 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 theexpression “State” is by itself not conclusive of whether particularprovision of the Constitution would apply to Union Territories.

ASimilarly, it can also be stated that the definition of the expressionState in Section 3(58) of the General Clauses Act (which includesa Union Territory) will not necessarily govern all references to“State” in the Constitution. If there is something which is repugnantin the subject or context, the inclusive definition in Section 3(58)will not apply. This is made clear in the precedent emanating fromBthis Court. In certain contexts, it has been held that the expression“State” will not include Union Territories while in other contextsthe definition in Section 3(58) has been applied. Hence, theexpression “insofar as any such matter is applicable to UnionTerritories” is not one of exclusion nor can it be considered to beCso irrespective of subject or context.”

21. Dr. Justice D.Y. Chandrachud while considering the expression“in so far as any such matter is applicable to Union Territories” asoccurring in Article 239AA(3) has held that the ability of the LegislativeAssembly is circumscribed by the above expression. In Paragraph No.D316 of the Constitution Bench judgment, he has observed following:-

“316. Clause (3) of Article 239-AA defines the legislative powersof the Legislative Assembly for the NCT. Sub-clause (a)empowers the Legislative Assembly for the NCT to enact lawwith respect to any of the matters contained in the State orEConcurrent Lists of the Seventh Schedule to the Constitution. Theability of the Legislative Assembly is circumscribed “insofar asany such matter is applicable to Union Territories”. The LegislativeAssembly can hence enact legislation in regard to the entries inthe State and Concurrent Lists to the extent to which they applyto Union Territory. Of equal significance is the exception whichFhas been carved out: Entries 1, 2 and 18 of the State List (andEntries 64, 65 and 66 insofar as they relate to Entries 1, 2 and 18)lie outside the legislative powers of the Legislative Assembly ofNCT……………………………….”

22. Dr. Justice D.Y. Chandrachud, thus, held that expressionG“State” is by itself not conclusive of whether particular provision ofthe Constitution would apply to Union Territories. His Lordship opinedthat the expression “insofar as any such matter is applicable to UnionTerritories” is not one of exclusion nor can it be considered to be soirrespective 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 powerto legislate in respect of subject-matters provided in List II andList III of the VIIth Schedule of the Constitution of India, itspecifically restricts the legislative powers of the LegislativeAssembly of Delhi to those subject-matters which are “applicableto Union Territories”. The Constitution envisages that List II andList III of the VIIth Schedule of the Constitution of India containcertain subject-matters which are not applicable to UnionTerritories. The intention of the Constitution-makers is that evenwhen the subject-matters contained in List II and List III of theVIIth Schedule become available to the Legislative Assembly ofNCT of Delhi, the subject-matters in the said Lists which are notapplicable to Union Territories would not become available to theLegislative Assembly of NCT of Delhi and would be beyond itslegislative powers.

551. The provision is very clear which empowers the LegislativeAssembly to make laws with respect to any of the mattersenumerated in the State List or in the Concurrent List except theexcluded entries. One of the issues is that power to make laws inState List or in Concurrent List is hedged by phrase “insofar asany such matter is applicable to Union Territories”.

552. look at the entries in List II and List III indicates that thereis no mention of Union Territory. perusal of Lists II and IIIindicates that although in various entries there is specific mentionof word “State” but there is no express reference of “UnionTerritory” 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 mentionof word “State”. The above phrase “insofar as any such matter isapplicable to Union Territory” is inconsequential. The reasons aretwofold. On the commencement of the Constitution, there was noconcept of Union Territories and there were only Part A, B, Cand States. After Seventh Constitutional Amendment, whereFirst Schedule as well as Article 2 of the Constitution wereamended which included mention of Union Territory both in Article

A1 as well as in First Schedule. Thus, the above phrase was usedto facilitate the automatic conferment of powers to make lawsfor Delhi on all matters including those relatable to the State Listand Concurrent List except where an entry indicates that itsapplicability to the Union Territory is excluded by implication orany express constitutional provision.”B

24. In the above paragraphs the opinion is expressed that allmatters including those relatable to the State List and Concurrent Listare available to Legislative Assembly of Delhi except where an entryindicates that its applicability to the Union Territory is excluded byimplication or by any express constitutional provision. The conclusion is,Cthus, that all entries of List II and List III are available to LegislativeAssembly for exercising Legislative power except when an entry isexcluded 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 anyDsuch matter is applicable to Union Territories”, it is, thus, clear that noopinion has been expressed in the majority opinion of the ConstitutionBench, hence the said issue is required to be elaborately answered fordeciding C.A.No.2357 of 2017.

26. As noted above, Article 239AA has been inserted byEConstitution 69[th] Amendment, 1991 with effect from 1[st] February, 1992.Legislative powers to Legislative Assembly for Union Territory was anaccepted principle even before 69[th] Constitution (Amendment) Act. TheGovernment of Union Territories Act, 1963 was enacted by Parliamentin reference to Article 239A brought by Constitution 14[th] Amendment,F1962. Article 239A provided as follows:“239A. Creation of local Legislatures or Council of Ministers orboth for certain Union territories.-

(1) Parliament may by law create for the Union territory ofPondicherry-

G(a) body, whether elected or partly nominated and partly elected,to function as Legislature for the Union territory, or

(b) Council of Ministers,

or both with such Constitution, powers and functions, in each case,Has may be specified in the law.

(2) Any such law as is referred to in clause (1) shall not be deemedto be an amendment of this Constitution for the purposes of article368 notwithstanding that it contains any provision which amendsor has the effect of amending this Constitution.”

27. Article 239A empowered the Parliament by law to create abody to function as Legislature for the Union Territory. Such UnionTerritory constituted under Act, 1963 had Legislative power as providedby the Parliament itself under Section 18 of the Act, 1963. Section 18 ofthe Act, 1963 is as follows:

“18. Extent of legislative power.(1) Subject to the provisionsof this Act, the Legislative Assembly of the Union territory maymake laws for the whole or any part of the Union territory withrespect to any of the matters enumerated in the State List or theConcurrent List in the Seventh Schedule to the Constitution in sofar as any such matter is applicable in relation to Union territories.

(2) Nothing in sub-section (1) shall derogate from the powersconferred on Parliament by the Constitution to make laws withrespect to any matter for the Union territory or any part thereof.”

28. Thus, the expression “insofar as any such matter is applicablein relation to Union Territories” is known concept which was occurringin Section 18 of the Government of Union Territories Act, 1963 also.

29. For understanding the reasons and objects for circumscribingthe Legislative powers of the Delhi Legislative Assembly by qualifyingwith the expression “insofar as any such matter is applicable in relationto Union Territories”, we need to look into the Statement of Objects andReasons of the Constitution 69[th] (Amendment) Act and other relevantmaterials throwing light on the object and purpose of 69[th] Constitutionalamendment.

30. It is to be noted that for Reorganisation of the administrativeset up of Union Territory of Delhi, the Government of India has appointeda Committee, namely, Balakrishnan Committee, which had submitted itsreport on 14.12.1989 to the Home Ministry. The Report of theBalakrishnan Committee was the basis for enacting 69[th] ConstitutionAmendment. In the Statement of Objects and Reasons of the 69[th]Constitution Amendment, the Report of Balakrishnan Committee hasbeen specifically referred to and relied on. It is useful to notice the

AStatement of Objects and Reasons of Constitution 69[th] Amendment,which are as follows:-

“Statement of Objects and Reasons

The question of reorganisation of the administrative set-up in theUnion Territory of Delhi has been under the consideration of theGovernment for some time. The Government of India appointedon 24-12-1987 Committee to go into the various issues connectedwith the administration of Delhi and to recommend measures interalia for the streamlining of the administrative set-up. TheCommittee went into the matter in great detail and considered theissues after holding discussions with various individuals,associations, political parties and other experts and taking intoaccount the arrangements in the National Capitals of othercountries with federal set-up and also the debates in theConstituent Assembly as also the reports by earlier Committeesand Commissions. After such detailed inquiry and examination, itrecommended that Delhi should continue to be Union Territoryand provided with Legislative Assembly and Council ofMinisters responsible to such Assembly with appropriate powersto deal with matters of concern to the common man. TheCommittee also recommended that with view to ensure stabilityand permanence the arrangements should be incorporated in theConstitution to give the National Capital special status amongthe Union Territories.

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

31. The Constitution Bench judgment of this Court in Govt. ofFNCT of Delhi vs. Union of India (supra) speaking through JusticeDipak Misra, C.J. (as he then was) has also referred to and relied on theBalakrishnan’s Committee Report. In Paragraph No. 16 of the judgment,several paragraphs of the Balakrishnan Committee Report have beenextracted by the Constitution Bench. The Constitution Bench has furtherGheld that Balakrishnan Committee’s Report serve as an enacting historyand corpus of public knowledge relative to the introduction of Articles239-AA and 239-AB and would be handy external aids for construingArticle 239-AA and unearthing the real intention of Parliament whileexercising its constituent power. In Paragraph No. 206 of the judgment,following has been observed:-

“206. It is perceptible that the constitutional amendment conceivesof conferring special status on Delhi. This has to be kept in viewwhile interpreting Article 239-AA. Both the Statement of Objectsand Reasons and the Balakrishnan Committee Report, the relevantextracts of which we have already reproduced in the earlier partof this judgment, serve as an enacting history and corpus of publicknowledge relative to the introduction of Articles 239-AA and239-AB and would be handy external aids for construing Article239-AA and unearthing the real intention of Parliament whileexercising its constituent power.”

32. Balakrishnan’s Committee Report in Para No. 6.7.4 has notedthe limitation on the Legislative power of the Delhi Legislative Assemblybecause of the difference between the Constitutional Status of UnionTerritory 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 forDelhi. It should have full legislative power in relation to mattersassigned to it. Subject to the specific exclusion of certain subjectsset out in paragraphs 6.7.8 and 6.7.12 below, such powers shouldcover matters in the State List and the Concurrent List of theConstitution in so far as such matters are applicable in relation toUnion territories. This last limitation is necessary because of thedifference between the constitutional status of Union territoryand that of State. The exercise of such legislative powers should,of course, be subject to the provisions of the Constitution and therelevant laws of Parliament.”33. Balakrishnan Committee Report while elaborating theexpression “insofar as any such matters are applicable in relation toUnion Territories” has noticed that apart from entries specificallyexcluded, there are other entries, which ipso facto fall outside the purviewof the Delhi Legislative Assembly. Following has been stated inParagraph No. 6.7.12:-

“6.7.12 .....Another connected Entry in the State List is EntryNo.35 which is “Works, lands and buildings vested in or in thepossession of the “State”. Considering that the powers of theAssembly proposed for Delhi will extend to matters in the StateList and the Concurrent List of the Constitution “in so far as suchmatters are applicable in relation to Union territories” Entry 35

will ipso facto fall outside the purview of the Assembly proposedfor Delhi because that Entry is applicable to States and not toUnion territories......”

34. Entry 41 of List II of VIIth Schedule of the Constitution wasspecifically considered in the Balakrishnan Committee Report and theBBalakrishnan Committee Report opined that the said entry is not applicableto the Union Territory. On the above subject, following was stated in theReport in Paragraph Nos. 8.1.2 and 8.1.3:-

“8.1.2Entry 41 of the State List mentions “State public services:State ‘Public Services Commission”. Obviously, this Entry is notCapplicable to Union territories because it mentions only “State”and not “Union territories”. This view is reinforced by the factthat this Constitution divides public services in India into twocategories, namely, services in connection with the affairs of theUnion and services in connection with the affairs of the State asis clear from the various provisions in Part XIV of the Constitution.DThere is no third category of services covering the services of theUnion territories. The obvious reason is that the administration ofthe Union territory is the constitutional responsibility of the Unionunder article 239 and as such comes under “affairs of the Union”.Consequently, the public services for the administration of anyEUnion territory should form part of the public services in connectionwith the affairs of the Union.

8.1.3It is not, therefore, constitutionally possible to bring thesubject matter of the services in the Union territory within thescope of the Legislative Assembly or the Council of Ministers ofthe proposed Delhi Administration. On the same reasoning it isnot possible to provide for separate Public Service Commissionfor Union territory like Delhi because State Public ServiceCommission in Entry 41 aforesaid means only the body set up forthe States.”

35. Balakrishnan Committee Report further opined that servicesin connection with the administration of the Union Territory of Delhi willbe part of the services of the Union even after the setting up of aLegislative Assembly with Council of Ministers. Following was statedin Paragraph No. 9.3.4 on the heading “SERVICES”:-

“SERVICES

9.3.4 By virtue of the provisions in the Constitution, services inconnection with the administration of the Union territory of Delhiwill be part of the services of the Union even after the setting upof Legislative Assembly with Council of Ministers. Thisconstitutional position is unexceptionable and should not bedisturbed. There should, however, be adequate delegation ofpowers to the Lt. Governor in respect of specified categories ofservices or posts. In performing his functions under such delegatedpowers the Lt. Governor will have to act in his discretion butthere should be convention of consultation, whenever possible,with the Chief Minister.”36. The Balakrishnan Committee Report which led into passingof the 69[th] Constitution (Amendment) Act categorically has acceptedthe position that Entry 41 of List II shall not be within the Legislativecompetence of Delhi Legislature, which conclusion was plausible, sincethe Legislative power of the Delhi Legislative Assembly wascircumscribed by the expression “insofar as any such matter is applicablein relation to Union Territories” as occurring in Article 239AA(3). InBalakrishnan Committee Report, the Committee noticed the existenceof services, which were in existence in the Union Territory of Delhi.There were common services for several Union Territories constitutedby Union. On 13.07.1959, the President has issued an order in exerciseof power conferred by Proviso to Article 309 of the Constitution andframed Rules namely, Conditions of Services of Union TerritoriesEmployees Rules, 1959.

37. The Delhi Administration Subordinate Ministerial/ExecutiveService Rules., 1967 were also framed by the President in exercise ofpower conferred by Article 309 of the Constitution of India. Rule 2(d)provided that “commission” means the Union Public ServicesCommission. There has been subsequent Rules framed for servicesunder the Union Territories. There being also Rules for Servicescombined to different Union Territories. The Parliament was well awareat the time when Constitution 69[th] (Amendment) Act was enacted thatthe term “services” in the Union Territories are Union Services andthere are no State services and the Commission for Services means theUnion Public Services Commission. Constitution Bench of this Courthad occasion to consider various aspects of the services in Union Territory

[2019] 3 S.C.R.

Aof Delhi in Bir Singh Vs. Delhi Jal Board and Others, (2018) 10SCC 312. The above Constitution Bench judgment was delivered on30.08.2018, i.e. subsequent to Constitution Bench judgment in Govt. ofNCT of Delhi vs. Union of India (supra). The Constitution Bench ofthis Court speaking through Justice Ranjan Gogoi (as he then was) hasnoticed details of all Central Civil Services, Union Territories Services inBreference to NCT of Delhi, although with reference to question ofapplicability of reservation in services. Services in reference to NCT ofDelhi 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 DelhiC

64. In case of National Capital Territory of Delhi, especially, tomake the picture even clearer, reference may be made to “DelhiAdministration Subordinate Service Rules, 1967”. Rule 3 of theaforesaid Rules is to the following effect:

D“3. Constitution of service and its classification.—(1) On andfrom the date of commencement of these Rules, there shall beconstituted one Central Civil Service, known as theSubordinate Service of the Delhi Administration.

(2) The Service shall have four Grades, namely—

EGrade I

Grade III

Grade IV

(3) The posts in Grade I shall be Central Civil posts, Class IIGroup “B” (Gazetted) and those in Grades II, III and IV shallbe Central Civil posts Group “C” (Non-Gazetted).

(4) Members of the service shall, in the normal course be eligiblefor appointment to various Grades of the service to which theyGbelong and not to the other service.”

(emphasis supplied)

65. Subordinate services in the National Capital Territory of Delhiare, therefore, clearly Central Civil Services. The affidavit of theUnion of India also points out this feature by stating that,

“The posts in CCS Group are in the subordinate services. Theequivalent in the Union Territory of Delhi is the DelhiAdministrative Subordinate Services (DASS) and the recruitingagency in the place of Staff Selection Commission is the DelhiSubordinate Service Selection Board (DSSSB). Members of theDelhi Administrative Subordinate Services are the feeder cadrefor Central Civil Services Group (DANICS). It is for thesereasons that the policy (of pan India eligibility) is consistentlyadopted.”

66. combined reading of these provisions of the DASS Rules,1967 and CCS Rules, 1965, therefore, more than adequatelyexplains the nature of Subordinate Services in the NCT of Delhi.These clearly are General Central Services and perhaps, it is owingto this state of affairs that the Union of India in its affidavit hasstated that,

“Members of the Delhi Administrative Subordinate Services arethe feeder cadre for Central Civil Services Group (DANICS).It is for these reasons that the policy (of pan India eligibility) isconsistently adopted.”

38. The Constitution Bench in Bir Singh (supra), thus, has opinedthat services in the National Capital Territory are clearly Central CivilServices. What has been held by the Constitution Bench also reinforcesthat there are no State Public Services in the NCT, Delhi. Learnedcounsel appearing for the appellant has placed much reliance on theDelhi Fire Services Act, 2007 to buttress his submission that by theaforesaid Act, State Services namely Delhi Fire Services has beencreated, which clearly means that Entry 41 of List II is applicable toDelhi Legislative Assembly. The Delhi Fire Services Act, 2007 has beenpassed to provide for the maintenance of fire service and to makemore effective provisions for the fire prevention and fire safety measuresin certain buildings and premises in the National Capital Territory ofDelhi and the matter connected therewith.

39. We may first notice that the word “services” used in the Acthas been used in manner of providing services for fire prevention andfire safety measures. The word “services” has not been used in senseof constitution of service. It is to be noted that fire service is municipalfunction performed by local authority. Delhi Municipal Council Act,

A1957 contains various provisions dealing with prevention of fire etc.Further fire services is municipal function falling within the domain ofmunicipalities, which has been recognised in the Constitution of India.Article 243(W) of the Constitution deals with functions of themunicipalities in relation to matters listed in the 12[th] Schedule. Entry 7of the 12[th] Schedule provides for “Fire Services” as one of the functionsBof the municipalities. The nature of the enactment and the provisionsclearly indicate that Delhi Fire Services Act falls under Entry 5 of List IIand not under Entry 41 of List II.

40. The distribution of Legislative powers of State and theParliament is provided under Articles 245 and 246 of the Constitution.CArticle 246 which provides for subject-matter of laws made by Parliamentand by the Legislatures of States provides as follows:

“Article 246. Subject matter of laws made by Parliamentand by the Legislatures of States.-(1) Notwithstanding anythingin clauses (2) and (3), Parliament has exclusive power to makeDlaws with respect to any of the matters enumerated in List I in theSeventh Schedule (in this Constitution referred to as the “UnionList”).

(2) Notwithstanding anything in clause (3), Parliament and, subjectto clause (1), the Legislature of any State also, have power toEmake laws with respect to any of the matters enumerated in ListIII in the Seventh Schedule (in this Constitution referred to as the“Concurrent List”).

(3) Subject to clauses (1) and (2), the Legislature of any State hasexclusive power to make laws for such State or any part thereofFwith respect to any of the matters enumerated in List II in theSeventh Schedule (in this Constitution referred to as the “StateList”).

(4) Parliament has power to make laws with respect to any matterfor any part of the territory of India not included in StateGnotwithstanding that such matter is matter enumerated in theState List.

41. It is relevant to notice that Article 246 clause (3) which providesfor exclusive power to make laws for such State or any part thereof,uses the expression “with respect to any of the matters enumerated inH

List II in the Seventh Schedule”. The expression used in Article239AA(3)(a) i.e. “in so far as any such matter is applicable to UnionTerritories” connotes different expression. There is difference betweenthe Legislative powers of the State and the Union Territories, which isapparent by use of different expressions in the Constitution. Whileinserting Article 239AA in the Constitution, the Parliament was wellaware about the functioning of the Union Territories and extent andcontrols of powers to be given to the Union Territories by constitutionalamendment.

42. I having held that Entry 41 of List II of the Seventh Scheduleof 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 GNCTDas per Article 239AA(4) extend in relation to matters with respect towhich Legislative Assembly has power to make laws. With regard to“Services” GNCTD can exercise only those Executive powers, whichcan be exercised by it under any law framed by the Parliament or it mayexercise those Executive powers, which have been delegated to it. IssueNo. 1 is answered accordingly.

43. In view of my above answer to Issue No.1, Civil Appeal No.2357 of 2017 – Govt. Of NCT of Delhi Vs. Union of India stands disposedof upholding the judgment of the Delhi High Court dismissing the WritPetition (C) No. 5888 of 2015. The other appeals are disposed of as perorder proposedby my esteemed Brother Justice A.K. Sikri. ContemptPetition (C) No. 175 of 2016 is closed. The parties shall bear their owncosts.

Devika Gujral

Appeals disposed of.