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TMI Blog2019 (2) TMI 1950X X X X Extracts X X X X X X X X Extracts X X X X ..... nment (or to put it more precisely, in juxtaposition to the Lieutenant Governor (LG) of GNCTD, as nominee of the President of India). This issue centered around the interpretation that needed to be given to Article 239AA of the Constitution of India. 2) Undoubtedly, NCTD was and remains Union Territory and continues to be governed by Part VIII of the Constitution which pertains to 'the Union Territories'. Article 239, which substituted the original Article by the Constitution (Seventh Amendment) Act, 1956, w.e.f., 01 November, 1956 deals with administration of Union Territories. As the nomenclature itself suggests, such territories are that of 'Union", i.e., Union of India. That is why Article 239 stipulates that every Union Territory is to be administered by the President acting, to such extent as he thinks fit, through an Administrator to be appointed by him with such designation as he may specify. The opening words of Article 239, however, are 'save as otherwise provided by Parliament by law', which meas that Parliament by law can provide different schemes of administration for such Union Territories, i.e., different than what is stated in Article 239. In the year 1962, Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India (as his Lordship then was) to which Justice Khanwilkar and one of us (Justice A.K. Sikri) concurred. Two other separate opinions are rendered by Justice Dr. D.Y. Chandrachud and one of us (Justice Ashok Bhushan). After giving answers to the moot questions that arise, all these appeals were directed to be listed before the Regular Bench for deciding the individual issues and disputes that arise in these appeals. This is how the matters were heard, on its own merits, depending upon subject matter of each of these appeals, by this Bench. We propose to decide these disputes by means of the present judgment. Issues: 5) At this juncture, we would like to state in brief the precise subject matter of these appeals: 6) As pointed out above, Civil Appeal No. 2357 of 2017 arises out of the common judgment dated August 04, 2016 passed by the High Court in a batch of writ petitions. In these writ petitions, number of notifications passed by the Government of India, or by the GNCTD were questioned by the writ petitioners. Some writ petitions were filed by GNCTD; one by Union of India and few others by some individuals. The orders and/or actions, validity whereof was questioned by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. W.P.(C) No.348/2016 Ramakant Kumar vs. GNCTD Notification dated 22.12.2015 issued by the Directorate of Vigilance, GNCTD under Commission of Inquiry Act, 1952 constituting the Commission of Inquiry without placing before the Lieutenant Governor for his views/concurrence. 9. W.P.(Crl.) No.2099/2015 GNCTD vs. Nitin Manawat Order passed by the Lt.Governor, NCT of Delhi under Section 24 of Cr.P.C. appointing a Special Public Prosecutor to conduct the trial in FIR No.21/2012 in the Special Court under PC Act 7) From the above, it can be discerned that following issues arise for consideration: (i) The powers of GNCTD vis-a-vis Lieutenant Governor in respect of matters connected with 'services'. It may be mentioned, at this juncture itself that in Delhi there is no Public Service Commission. Since it is the Union Territory, the manpower/public servants which are assigned to Delhi are either those who belong to All India Services like Indian Administrative Service, Indian Police Service etc. or those who are recruited for Union Territories, commonly known as NCT of Delhi, Andaman & Nicobar Islands, Lakshad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Special Public Prosecutors in individual cases. Judgment of the Constitution Bench 8) Before we come to the grip of these issues it would be essential to discuss in brief the provisions of Article 239AA of the Constitution, as interpreted by the Constitution Bench judgment dated July 04, 2018 (hereinafter referred to as CB Judgment). 9) Relevant Articles of the Constitution, which need to be noted amongst others in this behalf, are Articles 239 and 239AA, which read as under : "239. Administration of Union territories.-(1) Save as otherwise provided by Parliament by law, every Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify. (2) Notwithstanding anything contained in Part VI, the President may appoint the Governor of a State as the administrator of an adjoining Union territory, and where a Governor is so appointed, he shall exercise his functions as such administrator independently of his Council of Ministers. 239-AA. Special provisions with respect to Delhi.-(1) As from the date of commencement of the Constitution (Sixty-ninth Amendment) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void: Provided that if any such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent, such law shall prevail in the National Capital Territory: Provided further that nothing in this sub-clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislative Assembly. (4) There shall be a Council of Ministers consisting of not more than ten per cent of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion: Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitutional pragmatism having due regard for sanctity of objectivity, realisation of the purpose in truest sense by constantly reminding one and all about the sacrosanctity of democratic structure envisaged by our Constitution, elevation of the precepts of constitutional trust and morality, and the solemn idea of de-centralisation of power. This method of understanding is described in the judgment as 'confluence of the idea and spirit of the Constitution'. The court also emphasised that interpretation of Article 239AA of the Constitution is not to be done in an exclusive compartment but in the context in which it has been introduced and also keeping in view the conceptual structure of the other relevant Articles of the Constitution. 11) In this process, the Court recapitulated brief history of Delhi from its inception as Capital of India in the year 1911 upto the stage of insertion of Article 239AA in the Constitution, which was the result of a detailed report submitted by Balakrishnan Committee. This narration in the judgment is as follows: "15. On 12-12-1911, Delhi became the capital of India. Delhi Tehsil and Mehrauli Thana were separated from Punjab and annexed to Delhi he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the President of India and exercise such powers and discharge the functions of a State Government under the Commissions of Inquiry Act, 1952 within the Union Territories. In the year 1987, the Balakrishnan Committee was set up to submit its recommendations with regard to the status to be conferred on Delhi and the said Committee recommended that Delhi should continue to be a Union Territory but there must be a Legislative Assembly and Council of Ministers responsible to the said Assembly with appropriate powers; and to ensure stability, appropriate constitutional measures should be taken to confer the National Capital a special status. The relevant portion of the Balakrishnan Committee Report reads as follows: "6.5.5. In Paras 6.5.2. and 6.5.3. we have briefly summarised the arguments for and against making Delhi a constituent State of the Union. After the most careful consideration of all the arguments and on an objective appraisal, we are fully convinced that most of the arguments against making Delhi a State of the Union are very substantial, sound and valid and deserve acceptance. This was also the view expressed before us by some of the eminent and knowledgeable persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecutive should be more or less on the pattern provided by the Constitution. Accordingly, there should be a Head of the Administration with a Council of Ministers answerable to the Legislative Assembly. As Delhi will continue to have the status of a Union Territory, Article 239 will apply to it and so it will have an Administrator with such designation as may be specified. The present designation of the Lieutenant Governor may be continued and recognised in the Constitution itself. ... xx xx xx 6.7.21. The Administrator should be expressly required to perform his functions on the aid and advice of the Council of Ministers. The expression "to aid and advice" is a well-understood term of art to denote the implications of the Cabinet system of Government adopted by our Constitution. Under this system, the general rule is that the exercise of executive functions by the Administrator has to be on the aid and advice of his Council of Ministers which means that it is virtually the Ministers that should take decisions on such matters. However, for Delhi, the following modifications of this general rule will have to be adopted: (i) Firstly, the requirement of acting on the aid and advi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resentative governance * Constitutional morality * Constitutional objectivity * Constitutional governance and the conception of legitimate constitutional trust * Collective responsibility * Federal functionalism and democracy * Collaborative federalism * Pragmatic federalism * Concept of federal balance * Interpretation of the Constitution * Purposive interpretation * Constitutional culture and pragmatism 13) After discussing in detail the aforesaid tools necessarily required for proper and just interpretation of the concerned provisions, the Court undertook the exercise of interpreting Articles 239, 239A and 239AA of the Constitution. 14) Since, this interpretation is material and significant for deciding specific issues which have been raised in these appeals, we would like to incorporate the portions of the majority judgment which have interpreted these Articles: "Interpretation of Articles 239 and 239-A: 174. The aforesaid passages set two guidelines. First, it permits judicial creativity and second, it mentions one to be conscious of pragmatic realism of the obtaining situation and the controversy. That apart, there is a suggestion to take note of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of which he is the Governor. 179. In this regard, the Court, in the case of Shamsher Singh (supra), has observed thus:- "54. The provisions of the Constitution which expressly require the Governor to exercise his powers in his discretion are contained in Articles to which reference has been made. To illustrate, Article 239(2) states that where a Governor is appointed an Administrator of an adjoining Union Territory he shall exercise his functions as such Administrator independently of his Council of Ministers." 180. Again, the Court, while interpreting Article 239 in Union of India and others v. Surinder S. observed:- "The unamended Article 239 envisaged administration of the States specified in Part C of the First Schedule of the Constitution by the President through a Chief Commissioner or a Lieutenant Governor to be appointed by him or through the Government of a neighbouring State. This was subject to other provisions of Part VIII of the Constitution. As against this, amended Article 239 lays down that subject to any law enacted by Parliament every Union Territory shall be administered by the President acting through an Administrator appointed by him with such des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-1972, Tripura and Manipur were granted Statehood as a consequence of which both Manipur and Tripura were omitted from Article 239-A. 183. Likewise, with the enactment of the Goa, Daman and Diu Reorganisation Act, 1987 on 30-5-1987, both Goa and Daman and Diu were omitted from Article 239-A. Parliament, under the Government of Union Territories Act, 1963, created legislatures for the then Union Territories and accordingly, even after 30-5-1987, the applicability of Article 239-A stands limited to UT of Puducherry. 184. As a natural corollary, the Union Territory of Puducherry stands on a different footing from other UTs of Andaman and Nicobar Islands, Daman and Diu, Dadra and Nagar Haveli, Lakshadweep and Chandigarh. However, we may hasten to add that Puducherry cannot be compared with the NCT of Delhi as it is solely governed by the provisions of Article 239-A. P. Interpretation of Article 239-AA of the Constitution 185. We shall now advert to the interpretation of Articles 239-AA and 239-AB of the Constitution which are the gravamen of the present batch of appeals. The said Articles require an elaborate interpretation and a thorough analysis to unearth and discover the tru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a law made by Parliament with respect to that matter, whether passed before or after the law made by the Legislative Assembly, or of an earlier law, other than a law made by the Legislative Assembly, then, in either case, the law made by Parliament, or, as the case may be, such earlier law, shall prevail and the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void: Provided that if any such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent, such law shall prevail in the National Capital Territory: Provided further that nothing in this sub-clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislative Assembly. (4) There shall be a Council of Ministers consisting of not more than ten per cent of the total number of Members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 239-AA or of all or any of the provisions of any law made in pursuance of that Article for such period and subject to such conditions as may be specified in such law and make such incidental and consequential provisions as may appear to him to be necessary or expedient for administering the National Capital Territory in accordance with the provisions of Article 239 and Article 239-AA." (emphasis supplied) "186. We deem it appropriate to refer to the Statement of Objects and Reasons for the amendment which reads thus: "1. The question of reorganisation of the administrative set-up in the Union Territory of Delhi has been under the consideration of the Government for some time. The Government of India appointed on 24-12-1987 a Committee to go into the various issues connected with the administration of Delhi and to recommend measures inter alia for the streamlining of the administrative set-up. The Committee went into the matter in great detail and considered the issues after holding discussions with various individuals, associations, political parties and other experts and taking into account the arrangements in the national capitals of other countries with a federal set-up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate and as such, whether the Administrator has to act on the "aid and advice" of the Council of Ministers. The Court considered the relevant provisions and after comparing the language of Articles 74 and 163 of the Constitution with the language of Section 44 of the Union Territories Act, 1963, it observed that the Administrator, even in matters where he is not required to act in his discretion under the Act or where he is not exercising any judicial or quasi-judicial functions, is not bound to act according to the advice of the Council of Ministers and the same is manifest from the proviso to Section 44(1). The Court went on to say: (SCC pp. 229-30, paras 14-15) "14. ... It transpires from the proviso that in the event of a difference of opinion between the Administrator and his Ministers on any matter, the Administrator shall refer the matter to the President for decision and act according to the decision given thereon by the President. If the President in a given situation agrees with what the Administrator opines contrary to the advice of the Council of Ministers, the Administrator would be able to override the advice of the Council of Ministers and on a reference to the Pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39-AA(4), he is bound by the aid and advice of his Council of Ministers in matters for which the Delhi Legislative Assembly has legislative powers. However, this is subject to the proviso contained in clause (4) of Article 239-AA which gives the power to the Lieutenant Governor that in case of any difference between him and his Ministers, he shall refer the same to the President for a binding decision. This proviso to clause (4) has retained the powers for the Union even over matters falling within the legislative domain of the Delhi Assembly. This overriding power of the Union to legislate qua other Union Territories is exposited under Article 246(4)." 17) The Court, thereafter, specifically focused on the executive power of the Council of Ministers of Delhi and made following remarks on this particular aspect: "204. Drawing an analogy while interpreting the provisions of Article 239-AA(3)(a) and Article 239-AA(4) would reveal that the executive power of the Government of NCT of Delhi is conterminous with the legislative power of the Delhi Legislative Assembly which is envisaged in Article 239-AA(3) and which extends over all but three subjects in the State List and all subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vely and efficiently. This is also discernible from the Balakrishnan Committee Report which recommended that though Delhi should continue to be a Union Territory, yet it should be provided with a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concern to the common man. 217. Sub-clause (a) of clause (3) of Article 239-AA establishes the power of the Delhi Legislative Assembly to enact laws for NCT of Delhi with respect to matters enumerated in the State List and/or Concurrent List except insofar as matters with respect to and which relate to Entries 1, 2 and 18 of the State List. 218. Sub-clause (b) of clause (3) lays down that Parliament has the powers to make laws with respect to any matter for a Union Territory including NCT of Delhi or any part thereof and sub-clause (a) shall not derogate such powers of Parliament. Sub-clause (c) of clause (3) gives Parliament the overriding power to the effect that where any provision of any law made by the Legislative Assembly of Delhi is repugnant to any provision of law made by Parliament, then the law made by Parliament shall prevail and the law made by the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tters. On the contrary, clause (4) explicitly grants to the Government of Delhi executive powers in relation to matters for which the Legislative Assembly has power to legislate. The legislative power is conferred upon the Assembly to enact whereas the policy of the legislation has to be given effect to by the executive for which the Government of Delhi has to have coextensive executive powers. Such a view is in consonance with the observation in Ram Jawaya Kapur [Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549] which has been discussed elaborately in the earlier part of the judgment. 224. Article 239-AA(4) confers executive powers on the Government of NCT of Delhi whereas the executive power of the Union stems from Article 73 and is coextensive with Parliament's legislative power. Further, the ideas of pragmatic federalism and collaborative federalism will fall to the ground if we are to say that the Union has overriding executive powers even in respect of matters for which the Delhi Legislative Assembly has legislative powers. Thus, it can be very well said that the executive power of the Union in respect of NCT of Delhi is confined to the three matters in the State Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the powers conferred on the Legislative Assembly but in respect of which powers or functions are entrusted or delegated to him by the President; or (ii) in which he is required by or under any law to act in his discretion or to exercise any judicial or quasi-judicial functions. (2) If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is by or under any law required to act in his discretion, the decision of the Lieutenant Governor thereon shall be final. (3) If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is required by any law to exercise any judicial or quasi-judicial functions, the decision of the Lieutenant Governor thereon shall be final. 245. A careful perusal of Section 41 of the 1991 Act shows that the Lieutenant Governor can act in his discretion only in matters which fall outside the legislative competence of the Legislative Assembly of Delhi or in respect of matters of which powers are entrusted or delegated to him by the President or where he is required by law to act in his discretion or to exercise any judicial or quasi-judicial functions a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atives must display constitutional objectivity as a standard of representative governance which neither tolerates ideological fragmentation nor encourages any utopian fantasy, rather it lays stress on constitutional ideologies. 284.3. Constitutional morality, appositely understood, means the morality that has inherent elements in the constitutional norms and the conscience of the Constitution. Any act to garner justification must possess the potentiality to be in harmony with the constitutional impulse. In order to realise our constitutional vision, it is indispensable that all citizens and high functionaries in particular inculcate a spirit of constitutional morality which negates the idea of concentration of power in the hands of a few. 284.4. All the three organs of the State must remain true to the Constitution by upholding the trust reposed by the Constitution in them. The decisions taken by constitutional functionaries and the process by which such decisions are taken must have normative reasonability and acceptability. Such decisions, therefore, must be in accord with the principles of constitutional objectivity and symphonious with the spirit of the Constitution. 284. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thod and approach to be embraced by constitutional courts while interpreting the constitutional provisions. Some lay more emphasis on one approach over the other, while some emphasise that a mixed balance resulting in a unique methodology shall serve as the best tool. In spite of diverse views on the said concept, what must be kept primarily in mind is that the Constitution is a dynamic and heterogeneous instrument, the interpretation of which requires consideration of several factors which must be given their due weightage in order to come up with a solution harmonious with the purpose with which the different provisions were introduced by the Framers of the Constitution or Parliament. 284.11. In the light of the contemporary issues, the purposive method has gained importance over the literal approach and the constitutional courts, with the vision to realise the true and ultimate purpose of the Constitution not only in letter but also in spirit and armed with the tools of ingenuity and creativity, must not shy away from performing this foremost duty to achieve constitutional functionalism by adopting a pragmatic approach. It is, in a way, exposition of judicial sensibility to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 284.16. As a natural corollary, the Union of India has exclusive executive power with respect to NCT of Delhi relating to the three matters in the State List in respect of which the power of the Delhi Legislative Assembly has been excluded. In respect of other matters, the executive power is to be exercised by the Government of NCT of Delhi. This, however, is subject to the proviso to Article 239-AA(4) of the Constitution. Such an interpretation would be in consonance with the concepts of pragmatic federalism and federal balance by giving the Government of NCT of Delhi some required degree of independence subject to the limitations imposed by the Constitution. 284.17. The meaning of "aid and advise" employed in Article 239-AA(4) has to be construed to mean that the Lieutenant Governor of NCT of Delhi is bound by the aid and advice of the Council of Ministers and this position holds true so long as the Lieutenant Governor does not exercise his power under the proviso to clause (4) of Article 239-AA. The Lieutenant Governor has not been entrusted with any independent decision-making power. He has to either act on the "aid and advice" of Council of Ministers or he is bound to im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to the only possible conclusion that the decisions of the Council of Ministers must be communicated to the Lieutenant Governor but this does not mean that the concurrence of the Lieutenant Governor is required. The said communication is imperative so as to keep him apprised in order to enable him to exercise the power conferred upon him under Article 239-AA(4) and the proviso thereof. 284.22. The authorities in power should constantly remind themselves that they are constitutional functionaries and they have the responsibility to ensure that the fundamental purpose of administration is the welfare of the people in an ethical manner. There is requirement of discussion and deliberation. The fine nuances are to be dwelled upon with mutual respect. Neither of the authorities should feel that they have been lionised. They should feel that they are serving the constitutional norms, values and concepts. 284.23. Fulfilment of constitutional idealism ostracising anything that is not permissible by the language of the provisions of the Constitution and showing veneration to its sense, spirit and silence is constitutional renaissance. It has to be remembered that our Constitution is a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., whether it is co-extensive with the legislative power. To that extent, the principle of such co-extensive executive power, which is recognised for the Union/Central Government as well as State Governments, has been accepted in the case of GNCTD as well. Thus, in this hue, the Constitution Bench has also accepted that the Lieutenant Governor is to act on the aid and advice of the Council of Ministers in all his acts, except those functions where the Lieutenant Governor is permitted to exercise his own discretion. 23) Since this executive power is co-extensive with legislate power, the appellants emphasised before us that the Constitution Bench has categorically held that this power extends over all the subjects except three subjects in the State List, i.e., Entries 1, 2 and 18. The executive power also extends to all subjects in the Concurrent List. The appellants also submitted that this executive power is to the exclusion of the executive power of the Union with respect to such matters, meaning thereby such power exclusively vests with the GNCTD. 24) The aforesaid manner of reading the Constitution Bench judgment is disputed by the respondents. Insofar as legislative domain o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the said Entries a, 2 and 18). This claim was founded on its basic contention that since there is an elected Council of Ministers in NCT Delhi, it should be treated as equivalent to a State. It was in support of this contention raised by GNCTD that the prayer for non-applicability of Article 239 in the case of NCT Delhi had also been made. 29) On the other hand, on behalf of the Union of India, it had been contended before this Court that the Scheme in the Constitution of India envisages at the threshold - vestige of executive power in the President of India under Article 53 of the Constitution of India to be exercised by the President on the aid and advice of the Union Council of Ministers. It is only after the vestige of the executive power takes place under Article 53 of the Constitution of India that the subsequent provisions of Article 73 and Article 246 define the extent of Executive and Legislative powers of the Union by dividing the Entries in the 3 Lists of the 7 th Schedule, between the Union on the one hand and the States on the other. In the same manner, the provision of Article 152 applies the same rule of vesting of the executive power in relation to all items me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g any legislation. Similarly, the State shall have executive power in relation to subjects in List II and List III of the Constitution of India. (iii) However, once the Parliament and/or any State Legislature frames 3 AIR 1995 SC 549 any legislation, the executive power of the respective governments shall be strictly in accordance with the provisions of any said legislation. [Para 12 of the judgment in Ram Jawaya Kapur] 32) The above-mentioned third proposition as has been held by this Court in Ram Jawaya Kapur's judgment, has been reiterated in various subsequent judgments of this Court including in the judgment of the Constitution Bench of this court in the present case on July 04, 2018 where the following dictum had been incorporated:- "........277 ....(xv).....However, if the Parliament makes law in respect of certain subjects falling in the State List or the Concurrent List, the executive action of the State must conform to the law made by the Parliament......." 33) The respondents point out that in all the three opinions constituting the judgment dated July 04, 2018, this Court has specifically and categorically rejected both the above-mentioned contentions raised on be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o any matter for the Union Territory or any part thereof." Sub-section (1) of Section 18 was similar in language to Article 239-AA(3)(a), without the exclusion of matters relating to Entries 1, 2 and 18 and Entries 64, 65 and 66. Sub-section (2) was similar in language to Article 239-AA(3)(b). Section 21 provided that if there was any inconsistency between a law made by Parliament and a law made by the Legislative Assembly, the law made by Parliament would prevail to the extent of repugnancy [this provision is similar in nature to Article 239-AA(3)(c)]. 453. The judgment of the majority also holds that all Union Territories are not situated alike. The first category consists of Union Territories which have no legislature at all. The second category has legislatures created by a law enacted by Parliament under the Government of Union Territories Act, 1963. The third category is Delhi which has "special features" under Article 239-AA. Though the Union Territory of Delhi "is in a class by itself", it "is certainly not a State within the meaning of Article 246 or Part VI of the Constitution". Various Union Territories - the Court observed - are in different stages of evolution. Howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... graph 217, 218 and 219, the majority judgment, acknowledged the exclusive Executive jurisdiction of the Union Government in relation to Entries 1, 2 and 18 of List II (and Entries 64, 65 and 66 of that List insofar as they relate to the said Entries 1,2 and 18) of the Seventh Schedule, this Court did not and could not have held that "exclusive" executive jurisdiction vests with the Government of NCT of Delhi in relation to all other entries in List II of the Seventh Schedule. 35) On the contrary, argued the appellants, this Court has held the existence and vestige of non-exclusive Executive Jurisdiction in relation to the remaining entries of List II that of List III for NCTD, since this court has categorically held that NCTD is a Union Territory and not a State, Article 239 continues to apply in relation to NCTD and further the same principle of Ram Jawaya Kapur of co-extensive executive power with the legislative power of any Government also applies to the Union government in relation to the Union Territory of NCTD. 36) After highlighting the above aspect, submission on behalf of Union of India/Lieutenant Governor is that the true and correct scope and interpretation of Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would deserve rejection by this Court. 38) It is further submitted that the intention of Parliament to confer overriding executive powers to the Central Government is evident from the provisions of Section 49 of the 1991 Act which empowers the President to exercise general control and to issue directions to the Lieutenant Governor and his Council of Ministers. Section 52 stipulates that all contracts relating to the administration of the Capital are made in exercise of the executive power of the Union and suits and proceedings in connection with the administration can be instituted by or against the Union Government. Reliance is placed on paras 86 ad 87 of the opinion authored by Justice D.Y., Chandrachud, which are as under: "86. Section 49 establishes the principle of the "general control" of the President over the Lieutenant Governor and the Council of Ministers: "49. Relation of Lieutenant Governor and his Ministers to President.-Notwithstanding anything in this Act, the Lieutenant Governor and his Council of Ministers shall be under the general control of, and comply with such particular directions, if any, as may from time to time be given by the President." "As an in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from time to time." 39) Reference is also made to Articles 239AB and 356 of the Constitution of India. "239AB. Provision in case of failure of constitutional machinery. If the President, on receipt of a report from the Lieutenant Governor or otherwise, is satisfied- (a) that a situation has arisen in which the administration of the National Capital Territory cannot be carried on in accordance with the provisions of article 239AA or of any law made in pursuance of that article; or (b) that for the proper administration of the National Capital Territory it is necessary or expedient so to do, the President may by order suspend the operation of any provision of article 239AA or of all or any of the provisions of any law made in pursuance of that article for such period and subject to such conditions as may be specified in such law and make such incidental and consequential provisions as may appear to him to be necessary or expedient for administering the National Capital Territory in accordance with the provisions of article 239 and article 239AA. 356. Provisions in case of failure of constitutional machinery in State (1) If the President, on receipt of report from the Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf of the Union of India is that when the judgment dated July 04, 2018 passed by the Constitution Bench comprising three separate opinions is read as a whole in the manner projected above and there is a harmonization of the three opinions to discern the law which has been laid down by this Court - the legal position projected by the respondents gets strengthened. As per the appellant, such a reading of the judgment dated July 04, 2018 would also be in consonance with the observation made in para 144 of the opinion authored by Justice D.Y. Chandrachud, wherein it has been observed that there is a broad coalescence ("coming together to form one mass or whole; process of merger of two or more droplets of particles to become one single droplet") between the view expressed in the three opinions in the said judgment dated 04.07.2018. 42) We may record at this stage that Dr. Abhishek Manu Singhvi, learned Senior Advocate who appeared for the intervenor, Reliance Industries Limited supported the aforesaid stand taken by the Union of India. He also submitted that no exclusive executive power has been conferred upon the GNCTD, i.e, to the exclusion of the Central Government. He argued that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 176, 187 and 239 of the said judgment, which have already been reproduced above. 45) Expanding the proposition that the Constitution Bench has already held that apart from the three explicitly excluded Entries (i.e. Entries 1, 2 and 18 in List II), the Delhi Assembly and GNCTD have legislative and executive powers over all other Entries in List II and III, it was argued that specific contention of the Union of India to the contrary was clearly repelled by the Constitution Bench. Submission in this behalf was that the majority judgment clearly records the submission of the Central Government in para 38 which reads as under: "38. The respondents also contend that although Article 239AA confers on the Legislative Assembly of Delhi the power to legislate with respect to subject matters provided in List II and List III of the Seventh Schedule, yet the said power is limited by the very same Article when it employs the phrase "in sofaras any such matter is applicable to Union Territories..." and also by specifically excluding from the legislative power of the Assembly certain entries as delineated in Article 239AA(3)(a). This restriction, as per the respondents, limits the power of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e) This is again reiterated in the conclusions contained in Para 277 (xiv), (xv) and (xvi) as under: "(xiv) The Legislative Assembly of Delhi also has the power to make laws over all those subjects which figure in the concurrent list and all but three excluded subjects, in the State List" (xv) The executive power of the Council of Ministers of Delhi spans over all subjects in the Concurrent List and all, but three excluded subjects, in the State list". (xvi) The Union of India has exclusive executive power with respect to the NCT of Delhi relating to the three matters in the State List in respect of which the power of the Delhi Legislative Assembly has been excluded." 48) This submission was sought to be supported from the concurring judgment of Justice Chandrachud (by referring to paras 127 to 130) which holds that the term "insofar as any such matter is applicable to a Union Territory" in not a terms of exclusion. Similarly, in paras 71 and 72 of the judgment of Justice Bhushan, it has been held that the said phrase "is not exclusionary phrase but has been used to facilitate conferment of power on the Delhi Assembly even in respect of entry that begin with the term State". ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion of India is noted in para 47. Thereafter, the Constitution Bench from Page 45 to Page 135 has discussed the principles of constitutional interpretation that will be used to interpret Article 239AA. 51) In the light of those principles, the Court thereafter has interpreted Article 239AA and its various provisions. Insofar as Balakrishnan Committee Report is concerned, it is not accepted as interpretative tool, as is clear from the following discussion: "270. There can be no quarrel about the proposition that the reports of the Committee enacting a legislation can serve as an external aid for construing or understanding the statute. However, in the instant case, as we have elaborately dealt with the meaning to be conferred on the constitutional provision that calls for interpretation, there is no necessity to be guided by the report of the Committee." (Emphasis Supplied) 52) In this context, another submission of the learned counsel for the appellants was that, in fact, respondents were trying to re-argue the entire matter and attempt was to impress this Bench to depart from the view taken by the Constitution Bench, which was impermissible having regard to the provisions c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifferent status than other Union Territories in respect of which provisions of Article 239 apply. It is also different from the status given to Puducherry, another Union Territory which is governed by Article 239A of the Constitution. Even for the Union Territory of Puducherry, provision is made for creation of Legislative Assembly. Such a power is given to the Parliament to enact this kind of law. In exercise of that power, the Parliament has enacted an Act which creates a Legislative Assembly which is partly elected and partly nominated. In contrast, conferment of status upon NCTD is by the Constitution itself and is not left to the Parliament. At the same time, NCTD remains a Union Territory and is not elevated to the status of a 'State' governed by Part VI of the Constitution (Articles 152 to 237). Thus, with the creation of Legislative Assembly as well as elected Government and conferment of all legislative and executive powers, concept of federalism has been incorporated in Article 239AA. Article 239AA has been interpreted by the Constitution Bench keeping in view this principle of federalism. All these aspects have been kept in view by the Constitution Bench while deciding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ident and has received his assent. In that event, such law made by the Legislative Assembly of Delhi shall prevail in NCTD. Notwithstanding, second proviso thereto recognises the supremacy of the Parliament by giving it power to enact law with respect to same subject matter as the law made by the Delhi Legislative Assembly and it includes power to make law adding to, amending, varying or even repealing the law made by the Legislative Assembly. 57) As mentioned earlier, insofar as this power of Parliament to make laws in respect of NCTD is concerned, there is no quarrel. In this conspectus, we have to find as to whether the CB Judgment held that insofar as the executive power of GNCTD is concerned, it is to the exclusion of the Centre, or, as contended by the learned senior counsel appearing for the Union of India, such executive power given to Delhi Government is co-extensive with that of Central Government. 58) It is in the aforesaid backdrop that the observations of the Constitution Bench, particularly the majority view, have to be discerned and given an appropriate meaning. Undoubtedly, the majority judgment in the Constitution Bench decides that the executive power of GNCTD i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovides as follows: "73. Extent of executive power of the Union.-(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend- (a) to the matters with respect to which Parliament has power to make laws; and (b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement: Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the legislature of the State has also power to make laws. (2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this Article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution." 85. The proviso to Article 73(1) provides that the executive power referred to in sub-clause (a) shall not, save as expressly provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even on the executive matters has to be conceded to be there as per constitutional scheme. It is another matter that for exercise of executive powers by the Union through the President and by the Council of Ministers, headed by the Chief Minister of NCTD, the Constitution itself indicates a scheme which advances the constitutional objectives and provide a mechanism for exercise of executive powers, which aspect shall be, however, further elaborated while considering clause (4) of Article 239-AA. Legislative power of the Union is coextensive with its executive power in relation to NCT is further indicated by the provisions of the Government of National Capital Territory of Delhi Act, 1991. The insertion of Article 239-AA by the Constitution Sixty-ninth Amendment has been followed by enactment of the Government of National Capital Territory of Delhi Act, 1991 which Act was enacted by Parliament in exercise of power under Article 239-AA(7)(a) of the Constitution. Section 49 of the Act, 1991 provides as follows: "49. Relation of Lieutenant Governor and his Ministers to President.-Notwithstanding anything in this Act, the Lieutenant Governor and his Council of Ministers shall be under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be a difference of opinion between the Lieutenant Governor and his Ministers on any matter. It provides that in such an eventuality the Lieutenant Governor is supposed to refer the matter to the President for decision and act according to the decision given thereon by the President. It gives supremacy to the President in the matter of executive decisions. Chandrachud, J. has noted that NCTD continues to be a Union Territory and the Union Government has a special interest in the administration of its affairs, which stands exemplified by the provisions of Article 239 and Section 49 of the GNCTD Act. Therefore, the provision to Article 239AA(4) must be given an interpretation which is marked with a sense of fine constitutional balance. The balance which is drawn must preserve the vital interest of the Union Government in the governance of the National Capital while supporting the legitimacy and constitutional status of the Council of Minister, which owes collective responsibility to the Legislative Assembly and which, in its capacity of the executive arm of the Government, tenders aid and advise to the Lieutenant Governor under a cabinet form of governance. According to the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtain subjects have been expressly carved out from the ambit of the legislative authority of the Legislative Assembly and vested exclusively in Parliament. Executive powers of the Government of NCT being coextensive with legislative powers, the aid and advice which is tendered to the Lieutenant Governor by the Council of Ministers is confined to those areas which do not lie outside the purview of legislative powers. These provisions demonstrate that while adopting the institutions of a Cabinet form of Government, the Constitution has, for NCT, curtailed the ambit of the legislative and executive powers, consistent with its status as a Union Territory. 139. The exercise of the constituent power to introduce Article 239-AA was cognizant of the necessity to protect national interests inherent in the governance of a National Capital. A sense of permanence and stability was sought to be attributed to the arrangements made for governing Delhi by bringing in a constitutional amendment. Both in terms of the reach of the legislative power, as well as in relation to the exercise of executive power, the special constitutional arrangements for Delhi recognise that the governance of Delhi imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inister, primarily, an effort should be made to resolve it by mutual discussion. If this process does not yield a satisfactory result, the matter can be referred to the Council of Ministers with whom an attempt is made to seek a satisfactory solution. It is when these two stages are crossed and a difference still persists that the proviso can be taken recourse to by referring the matter to the President. These stages which are enunciated in the Transaction of Business Rules must be read in conjunction with the authority conferred by Section 44 of the GNCTD Act which was enacted in pursuance of Article 239-AA(7). Hence the proviso must be read in conjunction with the law enacted by Parliament and the Transaction of Business Rules made by the President, to give clarity to the operating procedure for invoking the proviso. Moreover, once a reference is made to the President, the Lieutenant Governor is bound by the decision of the President. The Lieutenant Governor has the authority to take action which is warranted by emergent circumstances until the President has taken a decision. But before recourse is taken to the proviso, the Lieutenant Governor must make every effort with the Mini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deal with a reference on every matter, leaving nothing but the husk to the administration of the Union Territory. Article 239-AB makes a provision where there is a failure of the constitutional machinery in the Union Territory. The proviso to Article 239-AA(4) does not deal with that situation. Hence, in the application of the proviso it would be necessary to bear in mind that the Council of Ministers for the NCT has a constitutionally recognised function, as does the Legislative Assembly to whom the Council is collectively responsible. The role of the Lieutenant Governor is not to supplant this constitutional structure but to make it workable in order to ensure that concerns of a national character which have an innate bearing on the status of Delhi as a national Capital are not bypassed. If these fundamental precepts are borne in mind, the operation of the proviso should pose no difficulty and the intervention of the President could be invoked in appropriate cases where a matter fundamental to the governance to the Union Territory is involved." 61) Insofar as executive power of the GNCTD is concerned, we find that the majority judgment authored by Dipak Misra, CJI (as he then w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Entry 41 of List II of the Seventh Schedule from the legislative and executive domain of the NCT of Delhi, vide Notification of the Government of India dated May 21, 2015, is unconstitutional and illegal? 65) The second issue is whether the exclusion of the jurisdiction of the Anti-Corruption Branch (ACB) of the NCT of Delhi to investigate offences committed under the Prevention of Corruption Act, 1987 by the officials of Central Government and limiting the jurisdiction of the ACB to the employees of GNCTD alone is legal? (These two issues arise in Civil Appeal No. 2357 of 2017). 66) The third issue is raised in Civil Appeal Nos. 2358, 2359 and 2360 of 2017. In all these three appeals, the common issue is whether the GNCTD is an "Appropriate Government" under the Commission of Enquiry Act, 1952? 67) The fourth issue, which is raised in Civil Appeal 2363 of 2017, is: whether under Section 108 of the Electricity Act, 2003 and under Section 12 of the Delhi Electricity Reforms Act, 2000, the power to issue directions with the State Commission is with the Government of NCT of Delhi? Similar issue is the subject matter of Civil Appeal 2361 of 2017, viz. whether the orders of the GNCT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication dated September 24, 1998 and submitted that the said Notification was perfectly in order. We reproduce the same hereunder: " MINISTRY OF HOME AFFAIRS NOTIFICATION New Delhi, the 24th September, 1998 S.O. 853 (E). - In pursuance of the powers conferred under clause (1) of article 239 of the Constitution, the President hereby directs that subject to his control and until further orders, the Lieutenant Governor of the National Capital Territory of Delhi, shall in respect of matters connected with 'Public Order', 'Police' and 'Services' exercise the powers and discharge the functions of the Central Government, to the extent delegated from time to time to him by the President, in consultation with the Chief Minister of the National Capital Territory of Delhi except in those cases where, for reasons be recorded in writing, he does not consider it expedient to do so. [F.No. U-11030/2/98-UTL(288)] P.K. JALALI, Jt. Secy." However, this was superseded vide impugned Notification dated May 21, 2015 which gives power to the Lieutenant Governor in respect of 'Services' as well, in addition to 'Public Order', 'Police' and 'Land', which is contrary to the scheme contained in Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is also administered by the Central Government through the Ministry of Home Affairs. As such, it is clear that the National Capital Territory of Delhi does not have its own State Public Services. Thus, 'Services' will fall within this category. And whereas it is well established that where there is no legislative power, there is no executive power since executive power is co-extensive with legislative power. And whereas matters relating to Entries 1, 2 & 18 of the State List being 'Public Order', 'Police' and 'Land' respectively and Entries 64, 65 & 66 of that list in so far as they relate to Entries 1, 2 & 18 as also 'Services' fall outside the purview of Legislative Assembly of the National Capital Territory of Delhi and consequently the Government of NCT of Delhi will have no executive power in relation to the above and further that power in relation to the aforesaid subjects vests exclusively in the President or his delegate i.e. the Lieutenant Governor of Delhi. Now, therefore, in accordance with the provisions contained in article 239 and sub-clause (a) of clause (3) of 239AA, the President hereby directs that - "(i) subject to his control and further orders, the Lieute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission of Mr. Chidambaram, however, is that being common cadres, which apply to all Union Territories, undoubtedly, the Central Government has the power to allocate the personnel to NCTD as well. Likewise, it is also within the powers of the Central Government to transfer such personnel from one Union Territory to other, which would mean even from NCTD to any other Union Territory. According to him, that was the only function of the Joint Cadre Authority under the All India Services (Joint Cadre) Rules, 1972 inasmuch as Rule 5(1) therein stipulates to: "determine the names of the members of All India Services who may be required to serve from time to time in connection with affairs of each of the constituent States and the period or purpose for which their services shall be available to that Government". However, submits the counsel, once particular officers are allocated to NCTD, during their tenure in NCTD, it is within the powers of the GNCTD to assign them to particular departments. In support of this submission, he referred to the following Rules: "The All-India Services (Joint Cadre) Rules, 1972 2. Definitions - In these rules, unless the context other requires, - (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, posting is done by the State Government once the Central Government allocates particular employees to a particular State and since this principle of federalism is accepted and given imprimatur by the Constitution Bench in case of NCTD as well, the aforesaid principle shall equally apply. 76) As per him, the complete scheme which becomes clear from the above is that while it is the Joint Cadre Authority where Delhi has its own separate representative which allocates officers of the AGMUT Cadre to NCT of Delhi, the post to which such officer is posted/deputed is determined by the GNCTD. Consequently, if within the GNCTD, the said officer has to be posted from one post to the another, it is the GNCTD alone which has the powers under the Service Rules. This is in consonance with the position that prevails in the states of Arunachal Pradesh, Mizoram and Goa which are also members of the Joint Cadre in the AGMUT Cadre and who like the NCTD and unlike other Union Territories have a representative in the Joint Cadre Authority. 77) Likewise, insofar as DANICS is concerned, the submission is that under the Delhi, Andaman & Nicobar Islands, Lakshasweep, Daman & Diu and Dadra & Nagar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act on the aid 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 stipulates the matters wherein the Lieutenant Governor can act in his own discretion. This provision reads as under: "41. Matters in which Lieutenant Governor to act in his discretion: (1) The Lieutenant Governor shall act in his discretion in a matter:- (i) which falls outside the purview of the powers conferred on the legislative Assembly but in respect of which powers or functions are entrusted or delegated to him by the President; or (ii) in which he is required by or under any law to act in his discretion or to exercise any judicial functions. (2) If any question arises as to whether any matter is or is not a matter as respects with the Lieutenant Governor is by or under any law required to act in his discretion, the decision of the Lieutenant Governor thereon shall be final. (3) If any questions arises as to whether any matter is or is not a matter as respects with the Lieutenant Governor is by or under any law required by any law to exercise any judicial or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subjects were put at par. The only other requirement specified in the said Notification was that the Lieutenant Governor was to exercise the powers and discharge the functions of the Central Government 'in consultation with the Chief Minister of the NCTD'. It was only a 'consultation' which would not mean 'concurrence'. The Notification dated May 21, 2015 brought about change only in respect of such consultative process, i.e. 'consultation' with the Chief Minister, as being done away with. This became necessitated, according to him, because of the problems which the Lieutenant Governor was facing even in undertaking consultations with the Chief Minister. Therefore, now it is entirely within the discretion of the Lieutenant Governor to have the views of the Chief Minister or not. To that extent this Notification is only clarification of the earlier Notification dated September 24, 1998 and in substance the legal implications of this Notification were exactly the same as Notification dated September 24, 1998. Learned counsel also argued that the Constitution provides for services of the States and services of the Union. All Union Territories services are services of the Union, as he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make these guidelines under the Transaction of Business Rules and to provide consultation by the Lieutenant Governor with the Chief Minister up to certain level of officers. 83) In rejoinder, Mr. Chidambaram submitted that the aforesaid argument of the Union ignores the judgment of this Court in Union of India v. Prem Kumar Jain and Others (1976) 3 SCC 743 wherein a four Judge Bench of this Court held that the 'State' includes a Union Territory for the purposes of Article 312 of the Constitution in the following manner: "8. It follows therefore that, as and from November 1, 1956, when the Constitution (Seventh Amendment) Act, 1956, came into force, the President had the power to adapt the laws for the purpose of bringing the provisions of any law in force in India into accord with the provisions of the Constitution. It was under that power that the President issued the Adaptation of Laws (No. 1) Order, 1956, which, as has been shown, substituted a new clause (58) in Section 3 of the General clauses Act providing, inter alia, that the expression "State" shall, as respects any period after the commencement of the Constitution (Seventh Amendment) Act, 1956, mean "a State specified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of GNCTD over these personnel after they are allocated to the NCTD. As per GNCTD, it has the power to post such work force at different places and the LG is to act on the aid and advice of the Council of Ministers. For this purpose, the executive power is sought to be drawn by virtue of Entry 41 of List II in the Seventh Schedule of the Constitution. The submission on behalf of the Union of India is that it comes within the discretionary powers of the LG as the subject matter is not covered by Entry 41 of List II and, therefore, by virtue of Section 41 of GNCTD Act, the LG is empowered to act in his discretion in such a matter. 86) In the aforesaid backdrop, the first and foremost question is whether 'services' fall outside the purview of legislative assembly of NCTD? To put it otherwise, whether Entry 41 of List II does not cover the subject matter? Entry 41 of List II deals with 'State Public Services' and 'State Public Service Commission'. It is undisputed that State Public Service Commission does not exist in NCTD. When we are dealing with All India Services and DHANICS Services etc., it is also doubtful to mention it as State Public Service. 87) The further issue, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifference of opinion between the Lieutenant Governor and the Chief Minister, the view of the Lieutenant Governor should prevail and the Ministry of Home Affairs can issue a suitable notification in this regard. However, for Grade IV, III, II and I DASS officials, there is an existing delegation of powers where for Grades IV and III, all transfers and postings are done by the Secretary (Services); for Grades II and I, the transfers and postings are done by the Chief Secretary. For greater transparency, a Civil Services Board can be formed which can be headed by the Secretary (Services) for Grades IV and III officials; by the Chief Secretary for Grades II and I level officers. The Board can decide on the transfer and postings of these DASS cadre officers. He also pointed out that for IAS officers, a Civil Services Board headed by the Chief Secretary already exists and the recommendations of the same are being sent to the Lieutenant Governor. Similar Board can also be formed for DANICS officers. His suggestion was that similar mechanism of Services Boards can be made for other departments such as Education and Health. Likewise, the services of the Union Territories being under the Min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ATION New Delhi, the 23rd July, 2014 S.O. 1896(E) - In pursuance of Section 21 of the General Clauses Act, 1897 (10 of 1897) read with the Government of India, Ministry of Home Affairs Notification Number S.O. 183(E), dated the 20th March, 1974 and having regard to the guidelines issued by the Central Vigilance Commission over the jurisdiction of the Central Bureau of Investigation and the Anti-Corruption Branch, Government of National Capital Territory of Delhi, the Central Government hereby declares that the notification number F.1/21/92-Home (P) Estt.1750, dated the 8th November, 1993 issued by the Lieutenant Governor of the National Capital Territory of Delhi shall be applicable to the officers and employees of that Government only and for that purpose amends the said notification, namely:- In the said notification, after the existing Paragraph, the following Paragraph shall be inserted, namely:- "2. This notification shall apply to the officers and employees of the Government of National Capital Territory of Delhi." [F.no. 14036/4/2014-Delhi-I (Pt.File)] I.S. Chahal, Jt. Secretary xx xx xx Notification dated May 21, 2015 THE GAZETTE OF INDIA EXTRAORDINARY PART I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is also administered by the Central Government through the Minister of Home Affairs. As such, it is clear that the National Capital Territory of Delhi does not have its own State Public Services. Thus, 'Services' will fall within this category. And whereas it is well established that where there is no legislative power, there is no executive power since executive power is co-extensive with legislative power. And whereas matters relating to Entries 1, 2 & 18 of the State List being 'Public Order', 'Police' and 'Land' respectively and Entries 64, 65 & 66 of that list insofar as they relate to Entries 1, 2 & 18 as also 'Services' fall outside the purview of Legislative Assembly of the National Capital Territory of Delhi and consequently the Govt. of Nct of Delhi will have no executive power in relation to the above and further that power in relation to the aforesaid subjects vests exclusively in the President or his delegate, i.e. the Lieutenant Governor of Delhi. Now, therefore, in accordance with the provisions contained in Article 239 and sub-clause (a) of clause (3) of Article 239AA, the President hereby directs that - (i) Subject to his control and further orders, the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to notify a Police Station. However, the impugned notifications are issued by the Central Government. It is argued that post the 69th Amendment, the Central Government is not the State Government for the purpose of exercising the powers u/s. 2(s) of the Cr.P.C. It is submitted that though a cursory reading of the definition of the 'State Government' contained in Section 3(6) of the General Clauses Act, 1897 (GC Act) includes the Central Government and makes it a State Government in respect of Delhi for the purpose of exercising power under Section 2(s) of the Cr.P.C., but that is not the correct legal position. The contention is that Section 3(60) of the GC Act containing the definition of the 'State Government' was enacted prior to the 69th Amendment to the Constitution. Article 239AA and the cognate Articles were inserted/amended by the said Constitutional amendment. Pursuant to the aforesaid amendment, the Parliament enacted the GNCTD Act. The said amendment and the said Act came in force on February 01, 1992. In view of the aforesaid change in the Constitution and enactment of the GNCTD Act, the Central Government is not the State Government in respect of territory of Delhi for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 5(1), first proviso of PC Act, the administrator of UT, Delhi authorised the inspectors of police serving in ACB to investigate offences under the said Act in the whole of the territory. This was reiterated by the order of the Administrator issued on May 19, 1970. Additionally, with respect to Section 161, 165 and 165A of IPC power of arrest without warrant was given. During the aforementioned period, the police force was governed by the Police Act, 1861, Section 40 of the Punjab Laws Act, 1872 as in force in Delhi and the Bombay Police Act, 1951 as in force in Delhi. The criminal procedure was governed by the Criminal Procedure Code, 1898. The Criminal Procedure Code, 1973 came into force w.e.f. April 1, 1974 though it was gazetted on January 25, 1974. In this context, the President of India issued the notification dated March 20, 1974. A series of notifications, beginning from the year 1974, in respect of establishment and functioning of the ACB have been issued by the President and Administrator/LG in exercise of powers under Article 239(1) of the Constitution and Section 2(s) Cr.P.C., 1973 read with Delhi Police Act. Significantly, notifications issued prior to July ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor of Police who is appointed by the Additional Commissioner. All this is to be done subject to the control of the Administrator and his orders. Vide Section 15, the Commissioner of Police distributes duties and the mode of fulfillment of their duties. The disciplinary powers vest with the Commissioner of Police who also makes regulations subject to the orders of the Administrator. It also covers preservation of public order and peace through provisions under Chapter IV and V. The Administrator can make rules under Section 147. Section 149 contemplates cessation of old laws regulating police mentioned in Schedule II but it preserves the Rules and Standing Orders, appointments made etc. insofar as they are consistent with the Act. It also preserves the pending investigation and legal proceedings. Vide Section 150 the police force functioning in Delhi was deemed to be the police force constituted under the Delhi Police Act, 1978 with designations mentioned in Schedule III. It is submitted by Mr. Dwivedi that this Act has to be read along with Cr.P.C., 1973 . 99) Vide notification dated August 1, 1986 issued by the Administrator of UT Delhi it was provided, in supersession of his pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at from May 20, 1975 itself the ACB Delhi administration was intended to be a police station for investigating offences in relation to the personnel exercising powers and functions in connection with UT Delhi. The notification dated August 1, 1986 had also invoked powers under Government of India notification dated March 20, 1974. Though the notifications territorially covered the whole of UT Delhi but the context was evidently to deal with corruption in the Administration of UT Delhi. The nomenclature 'Anti-corruption branch, Delhi administration' also indicates the same. The subsequent notification dated November 8, 1993 merely made consequential changes on account of P.C. Act 1988 and change in status of administration of Delhi as NCTD. What was necessarily implicit in the said notifications was made clear by the subsequent notification dated July 23, 2014 and May 21, 2015 with a view to avoid parallel exercise of powers by CBI and ACB over officers, employees and functionaries of the Central Government. This was also recommended by CVC. Here it may be noted that while CBI is a police force created under DSPE Act 1946 and ACB is established under Delhi Police Act 1978. The estab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch happens on account of Article 239AA(b)(c) of the Constitution. In this scenario, argued the learned counsel, GNCTD can exercise only such executive power as Cr.P.C. confers on it and this conferment should be specific and express. 105) Dr. A.M. Singhvi, learned senior counsel who appeared for the intervenor/Reliance Industries, supported and added to the aforesaid submissions, which would be taken note of in our discussion. 106) After considering the respective submissions, we find force in the arguments advanced by Mr. Rakesh Dwivedi predicated on the historical developments narrated by him, and extracted above. We may also emphasise that the issue is limited, viz., whether ACB is empowered to register cases in respect of Central Government employees as well? 107) We find that the challenge laid by the appellant to these Notifications is predicated on Entry 2 of List II. Even after conferment of the status of quasi-State upon Delhi (which though in constitutional term remains Union Territory), Article 239AA (which gives such a status) itself excludes Entry 2 from the domain of NCTD. Thus, in respect of 'Police', NCTD does not have either legislative or executive power. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e establishing the ACB as a Police Station, it would be permissible to circumscribe and limit the investigation sphere of the ACB. 110) No doubt, Section 2(s) of the Cr.P.C. contemplates establishment of the police station by the State Government. However, the Cr.P.C. also lays down the procedure for making arrest, conducting investigation and submitting final reports. It does not contain any provision which prescribes what offences would be investigated by which police force. Section 156 of the Cr.P.C. merely provides that officers in the police station will investigate those cognizable cases which can be tried by the court having jurisdiction over the local area concerned would have power to inquire into or try. These provisions do not provide how parallel jurisdiction of two police stations is to be demarcated. In fact, parallel jurisdiction to investigate is not contemplated by Cr.P.C. as that would result in chaos and anarchy and would frustrate the very purpose of investigation. This leads us to hold that the Government which has competence over Entry 2 List II would have power to segregate and demarcate the jurisdiction to investigate as between two police forces. Hence the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subjects of police, public order and land from the legislative power and necessarily from the executive power of the NCT... (paragraph 55)" xx xx xx "...national imperatives have led to the carving out of the areas of police, public order and land from the sphere of legislative authority of the legislative assembly and their entrustment to Parliament... (paragraph 74)" 114) Pertinently, the appellant wants exclusive executive power in respect of the entries in List II, except Entries 1, 2 and 18, as well as all the subjects over List III. In this behalf, as noted above, contention of the appellant is that the Constitution Bench has so decided. However, when it comes to excepted matter in Entry 2 List II, though powers of NCTD are totally excluded, by indirect method the appellant wants concurrent jurisdiction over the same. It would be difficult to accept such a position. It is also pertinent to mention that insofar as Notification dated November 08, 1993 is concerned, whereby ACB of NCTD at Old Secretariat as police station was created by the Lieutenant Governor, the same has not been challenged. No doubt, there was no elected Government at that time. Fact remains that this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under: "(a) by the Central Government, no State Government shall, except with the approval of the Central Government, appoint another Commission to inquire into the same matter for so long as the Commission appointed by the Central Government is functioning;" 119) Mr. Naphade submitted that while holding that the "State Government" in the above definition of "appropriate Government" does not include the Government of NCT of Delhi, the High Court has applied the definition of State Government under Section 3(60) of the GC Act and this is another issue where the said definition has been mechanically applied, without understanding the context or text of the enactment. 120) In respect of this issue, the High Court has held that "In the light of the clear and unambiguous definitions of the Central Government and State Government under Section 3(8) and Section 3(60) respectively of the GC Act, we are of the view that the expression 'appropriate Government' in respect of Union Territories shall be the Central Government only" and further held that even if GNCTD is appropriate government, that the impugned notification appointing the Commission of Enquiry could not be sustained as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try 45. The COI Act, 1952 only facilitates and provides the procedure for conducting such an enquiry. It does not make any sense to deny the Government of NCT of Delhi this procedural benefit, when it otherwise has the power to appoint an enquiry under Entry 45 of List III. More so, when the Delhi Assembly can pass a law setting up a commission of inquiry for instance on transport, water resources or primary health centres in order to better inform itself for the formulation of policy. 123) On the above basis, it is argued that reliance on Section 3(60) of the GC Act is unsustainable. The High Court has applied Section 3(60) of the GC Act without understanding the context of appointment of Commission of Inquiries and without appreciating that the COI Act is only a procedural mechanism for exercise of power which exists independent of this Act in the NCT of Delhi. 124) On this subject matter, Mr. Maninder Singh responded to the aforesaid arguments of Mr. Naphade. His first submission is that COI Act is a Parliamentary enactment and, therefore, implementation thereof has to be as per the provisions of the said Act. He referred to para 12 of the judgment in Rai Sahib Ram Jawaya Kapu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 005) 11 SCC 600, one of the arguments raised by the defence was that valid sanction had not been obtained as per Section 196 of the Cr.P.C. in order to prosecute the accused persons. However, the Court noted: "11. As regards the sanction under Section 196 CrPC it is recited in the sanction order (Ext. P-11/2) that the Lieutenant Governor acted in exercise of powers conferred by sub-section (1) of Section 196 CrPC read with the Government of India, Ministry of Home Affairs notification dated 20-3-1974. Under that notification, there was delegation of powers to the Lieutenant Governor to grant sanction. The said notification which finds place in the annexures to the written submissions made on behalf of Gilani shows that it was issued under Article 239(1) of the Constitution enabling the Administrator of the Union Territory to discharge powers and functions of the State Government under CrPC. We accept the submission of the learned Senior Counsel for the State that the delegation of power contained in the said notification will continue to operate unless Parliament by law provides otherwise. The Government of NCT of Delhi Act, 1991 does not in any way affect the validity of delegat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tates that the LG shall act in his discretion in matters where he is required to, under any law. Since the LG is the 'Appropriate Government' under the COI Act, he is bound to exercise his discretion as envisaged under Section 41 of the GNCTD Act. The power of the LG to act in his own discretion where he is required to under any law has been affirmed by the Constitution Bench decision. 128) In the alternative, and without prejudice to the aforesaid arguments, the learned counsel argued that in any event, the notification dated August 11, 2015 constituting Commission of Inquiry is violative of GNCTD Act and ToBR. To buttress this submission, he referred to Section 45 of the GNCTD Act as well as Rule 23 of ToBR as per which every decision taken by the Council of Ministers has to be communicated to the LG to keep him apprised and to enable him to exercise the power conferred upon him under Article 239AA(4) and the proviso thereof. Unless the LG is kept informed of all decisions, he cannot exercise the Constitutional power to disagree vested upon him, if need be, and thus, cannot make a reference to the President. Another submission of Mr. Gautam Khazanchi was that the notification da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Territory; 3(62A) "Union Territory" shall mean any Union Territory specified in Schedule I to the Constitution and shall include any other territory comprised within the territory of India but not specified in that Schedule;" 132) No doubt, definition of State as contained in Section 3(58) includes Union Territory. However, we are concerned with the meaning of 'State Government' which is defined in Section 2(60) of the GC Act. Here, it is specifically provided that in respect of Union Territory, the State Government would mean the Central Government. 133) It would be appropriate to remark that this aspect had come up for consideration in the case of Goa Sampling Employees' Association v. General Superintendence Co. of India (1985) 1 SCC 206, though in the context of definition of "Appropriate Government" contained in Section 2(a) of the Industrial Disputes Act. Goa was Union Territory at that point of time. The workman had raised dispute and reference in this respect was made by the Central Government to the industrial tribunal. This power of Central Government to make the reference was challenged by the management taking a specific plea that the Central Government was not the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o act in his discretion or by or under any law to exercise any judicial or quasi-judicial functions. There is a proviso to Section 44(1) which sheds light on the position of the Administrator and powers of the Council of Ministers. According to the proviso in the event of a difference of opinion between the Administrator and the Ministers on any matter, the Administrator shall refer it to the President for decision given therein by the President etc. Thus the executive power of the Administrator extends to all subjects covered by the legislative power. But in the event of a difference of opinion the President decides the point. When President decides the point, it is the Central Government that decides the point. And that is binding on the Administrator and also the Ministers. Section 45 provides that "the Chief Minister of a Union Territory shall be appointed by the President". Section 46 confers power on the President to make rules for the conduct of business. Section 55 provides that "all contracts in connection with the administration of a Union Territory are contracts made in the exercise of the executive power of the Union and all suits and proceedings in connection with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0)] and "Union Territory" [Section 3(62-A)] in the General Clauses Act, it would unmistakably show that the framers of the Constitution as also the Parliament in enacting these definitions have clearly retained the distinction between State Government and Administration of Union Territory as provided by the Constitution. It is especially made clear in the definition of expression "Central Government" that in relation to the Administration of a Union Territory, the Administrator thereof acting within the scope of the authority given to him under Article 239 of the Constitution, would be comprehended in the expression "Central Government". When this inclusionary part is put in juxtaposition with exclusionary part in the definition of the expression "State Government" which provides that as respects anything done or to be done after the commencement of the Constitution (Seventh Amendment) Act, 1956, it shall mean, in a State, the Governor, and in a Union Territory, the Central Government, the difference conceptually speaking between the expression "State Government" and the "Administration of a Union Territory" clearly emerges. Therefore, there is no room for doubt that the expression ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 : 10 ELR 103] and the decision of this Court in State of Madhya Pradesh v. Shri Moula Bux [AIR 1962 SC 145 : (1962) 2 SCR 794 : (1961) 2 SCJ 549] in which with reference to Part C States, some observations have been made that "the authority conferred under Article 239, as it then stood, to administer Part C States has not the effect of converting those States into the Central Government, and that under Article 239 the President occupies in regard to Part C States, a position analogous to that of a Governor in Part A States and of a Rajpramukh in Part B States". It was also observed that "though the Part C States are centrally administered under the provisions of Article 239, they do not cease to be States and become merged with the Central Government". It was then urged that by the amendment to Articles 239 and 240 by the Constitution (Seventh Amendment) Act, 1956 and introduction of Articles 239-A and 239-B by the Constitution (Fourteenth Amendment) Act, 1962, only the nomenclature of the Part C States has undergone a change, now being described as Union Territory, but the position of the Union Territory is the same as it was as Part C States and therefore, the view taken in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union Territory and its administration on the other hand. This distinction, the Court observed, was carried in the definition contained in the General Clauses Act: (SCC p. 214, para 14) "14. ... Now if we recall the definition of three expressions "Central Government" [Section 3(8)], "State Government" [Section 3(60)] and "Union Territory" [Section 3(62-A)] in the General Clauses Act, it would unmistakably show that the Framers of the Constitution as also Parliament in enacting these definitions have clearly retained the distinction between State Government and Administration of Union Territory as provided by the Constitution. It is especially made clear in the definition of expression "Central Government" that in relation to the Administration of a Union Territory, the Administrator thereof acting within the scope of the authority given to him under Article 239 of the Constitution, would be comprehended in the expression "Central Government". When this inclusionary part is put in juxtaposition with exclusionary part in the definition of the expression "State Government" which provides that as respects anything done or to be done after the commencement of the Constitution (Seventh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, GNCTD can pass an appropriate order appointing a Commission of Inquiry in exercise of its executive power. In the instant case, we are concerned with notification dated August 11, 2015 which is passed under the COI Act. We, therefore, uphold the judgment of the High Court on this aspect. Issue No.4: Whether, under Section 108 of the Electricity Act, 2003 and under Section 12 of the Delhi Electricity Reforms Act, 2000, the power to issue directions with the State Commission is with the Government of NCT of Delhi? 137) On this issue, submissions were made by Mr. Kapil Sibal, learned senior counsel, on behalf of GNCTD. In the first instance, he referred to Section 108 of the Electricity Act which gives State Government the power to give directions to the State Electricity Regulatory Commission (SCRC). It reads as under: "Section 108. (Directions by State Government): (1) In the discharge of its functions, the State Commission shall be guided by such directions in matters of policy involving public interest as the State Government may give to it in writing. (2) If any question arises as to whether any such direction relates to a matter of policy involving public interest, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that LG is to act on the aid and advice of the Council of Ministers, and only those matters are excepted where LG has to function in his own discretion, which was not the case here. Moreover, DER Act was passed by Delhi Legislative Assembly. Therefore, even the executive power of the Union will not be there. 141) Mr. Sibal referred to the judgment of Constitution Bench in Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly & Ors.12 which discusses in detail discretionary power of the Governor under Article 163 of the Constitution. This judgment also provides instances of situations wherein Governor may exercise power "in his discretion" independent of, or, contrary to aid and advice of Council of Ministers. Based on that, Mr. Sibal submitted that exercise of powers under the DER Act does not fall within the domain of discretionary power of the LG and, therefore, he is supposed to act on the aid and advice of Council of Ministers. 142) Reply of Mr. Maninder Singh to the aforesaid arguments was that the Electricity Act, 2003 is a Parliamentary enactment which was passed after the insertion of Article 239AA. Under Section 108 of the Electricity Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he DER Act. Section 11 stipulates various functions which DERC is supposed to perform which include determination of tariff for electricity, wholesale, bulk, grid or retail, as the case may be; and to determine the tariff payable for the use of transmission facility etc. In essence, such powers are almost the same powers which are given to Central Electricity Regulatory Commission (CERC). Thus, insofar as NCTD is concerned, it has its own Commission, namely, DERC. DER Act also stipulates powers of Government in Part IV thereof. General powers of the Government, inter alia, include giving directions to the DERC in matters of policy involving public interest, as the Government may issue from time to time. These powers are akin to the powers given under Section 108 of the Electricity Act, 2003. Government is defined in Section 2(d) of DER Act as under: "2(d) "Government" means the Lieutenant Governor referred to in article 239AA of the Constitution; 145) Reading the aforesaid definition in the context of the Constitution Bench judgment would clearly mean that LG here has to act on the aid and advice of Council of Ministers, as such functions do not come within his discretionary pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .03.2008; the Lt. Governor of the National Capital Territory of Delhi, hereby revises and notifies the minimum rates for the purposes of chargeability of stamp duty on the instruments related to sale/transfer of agriculture land under the provisions of the said Act, as per details given below:- Srl No. District Rates for agricultural land (Rs. Per acre) Rates for the agricultural land falling in villages where land pooling policy is applicable (Rs. per acre) 1. East 1.00 Crore 2.25 crore 2. North - East 1.00 Crore 2.25 Crore 3. Shahdra 1.00 Crore 2.25 Crore 4. North 1.25 Crore 3.00 Crore 5. North West 1.25 Crore 3.00 Crore 6. West 1.25 Crore 3.00 Crore 7. South West 1.50 Crore 3.50 Crore 8. South 1.50 Crore 3.50 Crore 9. South East 1.50 Crore 3.50 Crore 10. New Delhi 1.50 Crore 3.50 Crore 11. Central 1.25 Crore 3.00 Crore These revised rates shall come into force with immediate effect. By order and in the name of the Lt.Governor of the National Capital Territory of Delhi, Sd/- (Sanjay Kumar) IAS Spl. Inspector General (Registration) " 148) Validity of this notification was challenged on two counts, namely: (a) As the no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Karnataka Stamp [Prevention of Undervaluation of Instrument Rules], 1977; Tamil Nadu Stamp [Prevention of Undervaluation of Instruments] Rules, 1968; Andhra Pradesh Stamp [Prevention of Undervaluation of Instruments] Rules, 1975; West Bengal Stamp [Prevention of Undervaluation of Instruments] Rules, 2001; Bihar Stamp [Prevention of Undervaluation of Instruments] Rules, 1995; Haryana Stamp [Prevention of Undervaluation of Instruments] Rules, 1978; Madhya Pradesh Stamp [Prevention of Undervaluation of Instruments] Rules, 1975; Chhattisgarh Stamp [Prevention of Undervaluation of Instruments] Rules, 2001; Kerala Stamp [Prevention of Undervaluation of Instruments] Rules, 1968; Maharashtra Stamp [Determination of true market value of property] Rules, 1995. 153) It was also pointed out that it was the Indian Stamp (Delhi Amendment) Act, 2001 which was passed by the Legislative Assembly of Delhi on 28th March, 2001 and received Presidential- assent on 18 th July, 2001 and the Indian Stamp (Delhi Amendment) Act, 2007 which was passed by the Legislative Assembly of Delhi on 18th September, 2007 and received the Presidential assent on 5th November, 2007 which in fact first dealt with the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is relatable to Entry 18 of List II i.e. 'land' or the subject matter falls within the scope of Entry 63 of List II. Entry 18 of List II reads as under: "18. Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agriculture loans; colonization." We may also note the language of Entry 63 List II: "63. Rates of stamp duty in respect of documents other than those specified in the provisions of List I with regard to rates of stamp duty." 157) Insofar as Entry 91 of List I is concerned, subject matter thereof is within the exclusive domain of the Centre/Parliament. It deals with 'rates of stamp duty in respect of wills of exchange, cheques, promissory notes, bills of lading, letters of credit, policies of insurance, transfer of shares, debentures, proxies and receipts'. It follows that insofar as instruments mentioned in Entry 91 of List I are concerned, rates of stamp duty of such documents are within the exclusive domain of the Union. In respect of other instruments, it is the State which has the necessary jurisdiction to fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion to the Lt.Governor for his views/concurrence with respect to any of the matters enumerated in List-II or List-III except the three reserved matters in Entries 1, 2 and 18 of List-II. The emphasis sought to be laid by the learned Senior Counsels who appeared for GNCTD on Rule 23 of the Transaction of Business Rules to substantiate the contention that those proposals which are mentioned in Rule 23 alone are required to be submitted to Lt. Governor is misplaced. The word "essentially" employed in Rule 23 makes clear the legislative intent that the proposals specified (i) to (viii) therein are not exhaustive. Any interpretation contra would render the Transaction of Business Rules ultra vires Clause (4) of Article 239AA of the Constitution. xx xx xx 116. For the aforesaid reasons, we are of the considered view that it is mandatory under the Constitutional scheme to communicate the decision of the Council of Ministers to the Lt. Governor even in relation to the matters in respect of which power to make laws has been conferred on the Legislative Assembly of NCTD and an order thereon can be issued only where the Lt. Governor does not take a different view. 117. Hence, the conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etent to take such action and issue such directions as he deems necessary. 217. A conjoint reading of Article 239-AA(3)(a) and Article 239-AA(4) reveals that the executive power of the Government of NCT of Delhi is coextensive with the legislative power of the Delhi Legislative Assembly which is envisaged in Article 239-AA(3) and which extends over all but three subjects in the State List and all subjects in the Concurrent List and, thus, Article 239-AA(4) confers executive power on the Council of Ministers over all those subjects for which the Delhi Legislative Assembly has legislative power. 218. Article 239-AA(3)(a) reserves Parliament's legislative power on all matters in the State List and Concurrent List, but clause (4) nowhere reserves the executive powers of the Union with respect to such matters. On the contrary, clause (4) explicitly grants to the Government of Delhi executive powers in relation to matters for which the Legislative Assembly has power to legislate. The legislative power is conferred upon the Assembly to enact whereas the policy of the legislation has to be given effect to by the executive for which the Government of Delhi has to have coextensive ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objectivity, the needed advice and the realities. 234. The proviso to Article 239-AA(4), we say without any fear of contradiction, cannot be interpreted in a strict sense of the mere words employed treating them as only letters without paying heed to the thought and the spirit which they intend to convey. They are not to be treated as bones and flesh without nerves and neurons that make the nerves functional. We feel, it is necessary in the context to read the words of the provision in the spirit of citizenry participation in the governance of a democratic polity that is republican in character. We may hasten to add that when we say so, it should not be construed that there is allowance of enormous entry of judicial creativity, for the construction one intends to place has its plinth and platform on the Preamble and precedents pertaining to constitutional interpretation and purposive interpretation keeping in view the conception of sense and spirit of the Constitution. It is, in a way, exposition of judicial sensibility to the functionalism of the Constitution. And we call it constitutional pragmatism. 235. The authorities in power should constantly remind themselves that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es not perceive a situation of constant friction and difference which gradually builds a structure of conflict. At the same time, the Council of Ministers being headed by the Chief Minister should be guided by values and prudence accepting the constitutional position that NCT of Delhi is not a State." In a concurring opinion on this aspect, Chandrachud, J. has also given lucid commentary. 163) It becomes clear from the above that even when the executive wing of Delhi Government takes a decision, the LG is also empowered to form its opinion 'on any matter' which may be different from the decision taken by his Ministers. Any matter does not mean each and 'every matter' or 'every trifling matter' but only those rare and exceptional matters where the difference is so fundamental to the governance of the Union Territory that it deserved to be escalated to the President. Therefore, the LG is not expected to differ routinely with the decision of Council of Minister. Difference should be on cogent and strong reasons. However, this limitation pertains to LG's exercise of power. At the same time, the proviso recognises that there may be contingencies where LG and his Ministers may differ. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Government" under the Cr.P.C., necessarily the power to appoint the Special Public Prosecutor will also lie with the Government of NCT of Delhi. If the contention of the Union of India is to be accepted then under the Cr.P.C. both the Central Government and State Government will be the Central Government alone, which will be a completely absurd legal position, particularly in light of the fact that subsequent to the 69 th Amendment, various powers of the State Government under the Cr.P.C., including appointment of public prosecutors, have been exercised by the elected government of NCT of Delhi. Referring to the impugned judgment, on this issue, it is pointed out that the High Court has held that the definition of Section 3(60) of the General Clauses Act, 1897 will apply to interpret the term "State Government" and it would thus be the Central Government, which would be the State Government. It is argued that this approach is wrong as the issue of appointment of public prosecutor relates to Criminal Procedure, i.e. Entry 2 of List II over which the Delhi Assembly and Executive exercise power, the Lt. Governor must act on the aid and advice of the Council of Ministers of the NCT o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Special Public Prosecutor vests with the LG and not the Government of NCT. So far as Entries 1 and 2, List III are concerned, it is argued that undoubtedly Legislative Assembly of NCT has legislative competence qua said entries but it is subservient to the legislative power of the Union. It is contended that legislative competence of NCT Delhi cannot derogate from or be repugnant to law of Parliament. And once Cr.P.C., 1973 has been made by the Parliament dealing exhaustively and comprehensively with criminal procedure the executive power of GNCTD as well as the legislative power would stand eroded and become subservient to the central executive. Therefore, GNCTD can exercise executive power only upon an express conferment of power by Cr.P.C. There is no such conferment. It is the Central Government alone which would have independent power to appoint Special Public Prosecutor. It is also argued that assuming without admitting that under Section 24 both Central Government are empowered to appoint Public Prosecutor/Special Public Prosecutor under Section 24(1) and 24(8), the Central Government cannot be prevented or restrained from making appointment, and wherever the Central Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection to the Special Judge to pass an appropriate order afresh in accordance with law." 170) In the earlier part of the discussion, it has held: (a) As per Sections 3(8), 3(58) and 3(60) of the GC Act, the expression 'State Government' for the purposes of a Union Territory means the President and includes the Administrator in terms of Article 239A of the Constitution. (b) Insofar as NCT of Delhi is concerned, the 'State Government', thus, means the Lieutenant Governor for the purposes of Section 24(8) of Cr.P.C. 171) Though, we have accepted the interpretation, as given by the High Court in respect of the provisions of the GC Act mentioned above while discussing the expression 'State Government' in the context of COI Act, this position is clarified while dealing with the same expression occuring in Section 2(5) of the Electricity Act, 2003. We have made it clear that it would depend upon language used in defining State Government in a particular enactment. We have also pointed out the difference in the definitions of Appropriate Government, under the COI Act and Electricity Act. This becomes important in the light of decision contained in the Constitution Bench judgment whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and illegal? 64) The second issue is whether the exclusion of the jurisdiction of the Anti-Corruption Branch (ACB) of the NCT of Delhi to investigate offences committed under the Prevention of Corruption Act, 1987 by the officials of Central Government and limiting the jurisdiction of the ACB to the employees of GNCTD alone is legal? (These two issues arise in Civil Appeal No. 2357 of 2017). 65) The third issue is raised in Civil Appeal Nos. 2358, 2359 and 2360 of 2017. In all these three appeals, the common issue is whether the GNCTD is an "Appropriate Government" under the Commission of Enquiry Act, 1952? 66) The fourth issue, which is raised in Civil Appeal No. 2363 of 2017, is: Whether under Section 108 of the Electricity Act, 2003 and under Section 12 of the Delhi Electricity Reforms Act, 2000, the power to issue directions with the State Commission is with the Government of NCT of Delhi? Similar issue is the subject matter of Civil Appeal No. 2361 of 2017, viz. whether the orders of the GNCTD nominating Directors to Distribution Companies in Delhi under the Delhi Electricity Reforms Act, 2000 read with Delhi Electricity Reforms (Transfer Scheme) Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the administrator thereof appointed under article 239 shall be designated as the Lieutenant Governor; And whereas sub-clause (a) of clause (3) of article 239AA states that the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union Territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18; and whereas Entry 1 relates to 'Public Order', Entry 2 relates to 'Police' and Entry 18 relates to 'Land'. And whereas sub-clause (a) of clause (3) of article 239AA also qualifies the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union Territories. Under this provision, a reference may be made to Entry 41 of the State List which deals with the State Public Services, State Public Service Commission which do not exist in the National Capital Territory of Delhi. Further, the Union Territories Cadre consisting of Indian Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Estt. 1750 dated 8th November, 1993, as amended vide notification dated 23rd July, 2014 bearing No. 14036/4/2014-Delhi-I (Pt. File), for paragraph 2 the following paragraph shall be substituted, namely:- "2. This notification shall only apply to officials and employees of the National Capital Territory of Delhi subject to the provisions contained in the article 239AA of the Constitution." after paragraph 2 the following paragraph shall be inserted, namely:- "3. The Anti-Corruption Branch Police Station shall not take any cognizance of offences against Officers, employees and functionaries of the Central Government". 3. This Notification supersedes earlier Notification number S.O. 853(E) [F. No. U-11030/2/98- UTL] dated 24th September, 1998 except as respects things done or omitted to be done before such supersession. [F. No. 14036/04/2014-Delhi-I (Part File)] RAKESH SINGH, Jt. Secy." 5. The Government of India, Ministry of Home Affairs issued above notification on the premise that Entry 41 of List II which deals with "State public services; State Public Service Commission" is not available to the Legislative Assembly of the National Capital Territory of Delhi which has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ows: "Article 145(3) The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five: Provided that, where the Court hearing an appeal under any of the provisions of this chapter other than Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion." 8. The expression "shall on receipt of the opinion dispose of the appeal in conformity with such opinion" occurring in proviso to Article 145 clause (3) obliges this Bench to dispose of the appeal in conformity with such opinion. We, thus, need to find as to what is the opinion of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi and the executive power exercised by the elected Government of NCT of Delhi. The facts involved and the controversy raised in each individual appeal need not be dwelled upon, for we only intend to answer the constitutional issue." 12.In paragraph 486 of the judgment (in my opinion) following was stated: "486. These appeals, thus, have been placed before this Constitution Bench. At the outset, it was agreed between the learned counsel for the parties that this Constitution Bench may only answer the constitutional questions and the individual appeals thereafter will be decided by appropriate regular Benches." 13.The submissions which are being pressed before us by Shri Rakesh Dwivedi as well as Shri Maninder Singh were also pressed before the Constitution Bench, the specific submission was that the power of Legislative Assembly of Delhi on subject matter provided in List II and III of Seventh Schedule is limited by very same Article when it implies "in so far as any such matter is applicable to Union Territories". It is useful to notice that in paragraph 39 of the judgment of Justice Dipak Misra, C.J. (as he then was) following has been noticed: "39. The respondents also con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to matters enumerated in the State List and/or Concurrent List except insofar as matters with respect to and which relate to Entries 1, 2 and 18 of the State List. 219. Thus, it is evident from clause (3) of Article 239-AA that Parliament has the power to make laws for NCT of Delhi on any of the matters enumerated in the State List and the Concurrent List and at the same time, the Legislative Assembly of Delhi also has the legislative power with respect to matters enumerated in the State List and the Concurrent List except matters with respect to entries which have been explicitly excluded from Article 239-AA(3)(a)." 16.In the above paragraphs Constitution Bench held that the power of the Legislative Assembly to make laws of NCT of Delhi is with respect to matters enumerated in State List and the Concurrent List except in so far as matters with respect to and which relate to entries 1,2 and 18 of the State List. What is noticed in paragraph No. 217 is what is stated in general terms in Article 239AA(3)(a) of the Constitution. The Constitution Bench has not bestowed its consideration on the purpose and intent of expression "with respect to any of the matters enumerated in the St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .Dr. Justice D.Y. Chandrachud in his opinion has dealt with the submission under the separate heading as indicated at Serial No.K(v) in the Index in the beginning of the judgment which is to the following effect: "K(v) "Insofar as any such matter is applicable to Union Territories" 20.In pages 736 and 737 of the judgment of Dr.Justice D.Y. Chandrachud, the said submission has been considered in paragraph Nos. 461, 462 and 463 and following has been laid down: "461. Article 239-AA(3)(a) permits the Legislative Assembly of the NCT to legislate on matters in the State List, except for Entries 1, 2 and 18 (and Entries 64, 65 and 66 insofar as they relate to the earlier entries) and on the Concurrent List, "insofar as any such matter is applicable to Union Territories". In forming an understanding of these words of Article 239-AA(3)(a), it has to be noticed that since the decision in Kanniyan right through to the nine-Judge Bench decision in NDMC, it has been held that the expression "State" in Article 246 does not include a Union Territory. The expression "insofar as any such matter is applicable to Union Territories" cannot be construed to mean that the Legislative Assembly of NC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable to Union Territories" is not one of exclusion nor can it be considered to be so 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" as occurring in Article 239AA(3) has held that the ability of the Legislative Assembly is circumscribed by the above expression. In Paragraph No. 316 of the Constitution Bench judgment, he has observed following:- "316. Clause (3) of Article 239-AA defines the legislative powers of the Legislative Assembly for the NCT. Sub-clause (a) empowers the Legislative Assembly for the NCT to enact law with respect to any of the matters contained in the State or Concurrent Lists of the Seventh Schedule to the Constitution. The ability of the Legislative Assembly is circumscribed "insofar as any such matter is applicable to Union Territories". The Legislative Assembly can hence enact legislation in regard to the entries in the State and Concurrent Lists to the extent to which they apply to a Union Territory. Of equal significance is the exception which has been carved out: Entries 1, 2 and 18 of the State List (and Entries 64, 65 and 66 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of word "State". Similarly, in List III Entries 3, 4 and 43 there is mention of word "State". The above phrase "insofar as any such matter is applicable to Union Territory" is inconsequential. The reasons are twofold. On the commencement of the Constitution, there was no concept of Union Territories and there were only Part A, B, C and D States. After Seventh Constitutional Amendment, where First Schedule as well as Article 2 of the Constitution were amended which included mention of Union Territory both in Article 1 as well as in First Schedule. Thus, the above phrase was used to facilitate the automatic conferment of powers to make laws for Delhi on all matters including those relatable to the State List and Concurrent List except where an entry indicates that its applicability to the Union Territory is excluded by implication or any express constitutional provision." 24.In the above paragraphs the opinion is expressed that all matters including those relatable to the State List and Concurrent List are available to Legislative Assembly of Delhi except where an entry indicates that its applicability to the Union Territory is excluded by implication or by any express constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable in relation to Union territories. (2) Nothing in sub-section (1) shall derogate from the powers conferred on Parliament by the Constitution to make laws with respect to any matter for the Union territory or any part thereof." 28. Thus, the expression "insofar as any such matter is applicable in relation to Union Territories" is a known concept which was occurring in Section 18 of the Government of Union Territories Act, 1963 also. 29. For understanding the reasons and objects for circumscribing the Legislative powers of the Delhi Legislative Assembly by qualifying with the expression "insofar as any such matter is applicable in relation to Union Territories", we need to look into the Statement of Objects and Reasons of the Constitution 69th (Amendment) Act and other relevant materials throwing light on the object and purpose of 69th Constitutional amendment. 30. It is to be noted that for Reorganisation of the administrative set up of Union Territory of Delhi, the Government of India has appointed a Committee, namely, Balakrishnan Committee, which had submitted its report on 14.12.1989 to the Home Ministry. The Report of the Balakrishnan Committee was the basis for e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer. In Paragraph No. 206 of the judgment, following has been observed:- "206. It is perceptible that the constitutional amendment conceives of conferring special status on Delhi. This has to be kept in view while interpreting Article 239-AA. Both the Statement of Objects and Reasons and the Balakrishnan Committee Report, the relevant extracts of which we have already reproduced in the earlier part of this judgment, serve as an enacting history and corpus of public knowledge relative to the introduction of Articles 239-AA and 239-AB and would be handy external aids for construing Article 239-AA and unearthing the real intention of Parliament while exercising its constituent power." 32.Balakrishnan's Committee Report in Para No. 6.7.4 has noted the limitation on the Legislative power of the Delhi Legislative Assembly because of the difference between the Constitutional Status of Union Territory and that of the State. Para No. 6.7.4 is to the following effect:- "6.7.4 As regards the Legislative Assembly to be created for Delhi. It should have full legislative power in relation to matters assigned to it. Subject to the specific exclusion of certain subjects set out in paragraphs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constitutional responsibility of the Union under article 239 and as such comes under "affairs of the Union". Consequently, the public services for the administration of any Union territory should form part of the public services in connection with the affairs of the Union. 8.1.3 It is not, therefore, constitutionally possible to bring the subject matter of the services in the Union territory within the scope of the Legislative Assembly or the Council of Ministers of the proposed Delhi Administration. On the same reasoning it is not possible to provide for a separate Public Service Commission for a Union territory like Delhi because State Public Service Commission in Entry 41 aforesaid means only the body set up for the States." 35.Balakrishnan Committee Report further opined that services in connection with the administration of the Union Territory of Delhi will be part of the services of the Union even after the setting up of a Legislative Assembly with a Council of Ministers. Following was stated in Paragraph No. 9.3.4 on the heading "SERVICES":- "SERVICES 9.3.4 By virtue of the provisions in the Constitution, services in connection with the administration of the Union terri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on 30.08.2018, i.e. subsequent to Constitution Bench judgment in Govt. of NCT of Delhi vs. Union of India (supra). The Constitution Bench of this Court speaking through Justice Ranjan Gogoi (as he then was) has noticed details of all Central Civil Services, Union Territories Services in reference to NCT of Delhi, although with reference to question of applicability of reservation in services. Services in reference to NCT of Delhi has been noticed in paragraph Nos. 64 to 66 under the heading "National Capital Territory of Delhi", which is to the following effect:- "National Capital Territory of Delhi 64. In case of National Capital Territory of Delhi, especially, to make the picture even clearer, a reference may be made to "Delhi Administration Subordinate Service Rules, 1967". Rule 3 of the aforesaid Rules is to the following effect: "3. Constitution of service and its classification.-(1) On and from the date of commencement of these Rules, there shall be constituted one Central Civil Service, known as the Subordinate Service of the Delhi Administration. (2) The Service shall have four Grades, namely- Grade I Grade II Grade III Grade IV (3) The posts in Grade I sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the National Capital Territory of Delhi and the matter connected therewith. 39.We may first notice that the word "services" used in the Act has been used in a manner of providing services for fire prevention and fire safety measures. The word "services" has not been used in a sense of constitution of a service. It is to be noted that fire service is a municipal function performed by local authority. Delhi Municipal Council Act, 1957 contains various provisions dealing with prevention of fire etc. Further fire services is a municipal function falling within the domain of municipalities, which has been recognised in the Constitution of India. Article 243(W) of the Constitution deals with functions of the municipalities in relation to matters listed in the 12th Schedule. Entry 7 of the 12th Schedule provides for "Fire Services" as one of the functions of the municipalities. The nature of the enactment and the provisions clearly indicate that Delhi Fire Services Act falls under Entry 5 of List II and not under Entry 41 of List II. 40.The distribution of Legislative powers of State and the Parliament is provided under Articles 245 and 246 of the Constitution. Article 246 which pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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