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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 ..... 57 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 - The distribution of Legislative powers of State and the Parliament is provided under Articles 245 and 246 of the Constitution. Article 246 which provides for subject-matter of laws made by Parliament and by the Legislatures of States. It is relevant to notice that Article 246 clause (3) which provides for exclusive power to make laws for such State or any part thereof, uses the expression with respect to any of the matters enumerated in List II in the Seventh Schedule . The expression used in Article 239AA(3)(a) i.e. in so far as any such matter is applicable to Union Territories conno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies 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 239A was inserted, providing a little departure from the Scheme of administration contained in Article 239, insofar as Union Territory of Puducherry is concerned. Likewise by the Constitution (Sixty Ninth Amendment) Act, 1991 special provision with respect to Delhi stood incorporated. This Article, inter alia, provides for a Legislative Assembly for NCTD, Legislative Assembly which comprises of Members who are elected representatives. It means that voters of NCTD elect their representatives to the Legislative Assembly. 3) The seminal issue which arose for consideration before the High Court in the writ petitions concerned the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s juncture, we would like to state in brief the precise subject matter of these appeals: 6) As pointed out above, Civil Appeal No. 2357 of 2017 arises out of the common judgment dated August 04, 2016 passed by the High Court in a batch of writ petitions. In these writ petitions, number of notifications passed by the Government of India, or by the GNCTD were questioned by the writ petitioners. Some writ petitions were filed by GNCTD; one by Union of India and few others by some individuals. The orders and/or actions, validity whereof was questioned by the petitioners before the High Court is stated by the High Court in the impugned judgment itself in a tabulated form. It would be convenient to reproduce the same as that captures the essence of subject matter of dispute in each of the writ petition. S.No. Case No. Parties Impugned order/action 1. W.P.(C) No.5888/2015 GNCTD vs. UOI Notifications dated 21.05.2015 and 23.07.2014 issued by the Govt. of India, Ministry of Home Affairs empowering the Lt. Governor to exercise the powers in respect of matters connected with 'Services' and directing the ACB Police Station not to take cognizance of offences against officials o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, Lakshadweep, Daman & Diu and Dadra & Nagar Haveli Civil Service (DHANICS). Admittedly these officers/public servants do not belong to Union Territory of Delhi exclusively or, for that matter, at all. They are placed at the disposal of NCTD by the Central Government. To this extent there is no dispute. However, bone of contention is about their mobility, i.e. their posting within Delhi itself from one place/department to other. To put it otherwise, the issue is as to whether such posting orders are to be passed by the President of India (or for that matter the Lieutenant Governor) or it is the Government of NCTD which is competent to exercise such a power once the manpower is assigned to it. (ii) Other iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrator to be appointed by him with such designation as he may specify. (2) Notwithstanding anything contained in Part VI, the President may appoint the Governor of a State as the administrator of an adjoining Union territory, and where a Governor is so appointed, he shall exercise his functions as such administrator independently of his Council of Ministers. 239-AA. Special provisions with respect to Delhi.-(1) As from the date of commencement of the Constitution (Sixty-ninth Amendment) Act, 1991, the Union territory of Delhi shall be called the National Capital Territory of Delhi (hereafter in this Part referred to as the National Capital Territory) and the administrator thereof appointed under Article 239 shall be designated as the Lieutenant Governor. (2)(a) There shall be a Legislative Assembly for the National Capital Territory and the seats in such Assembly shall be filled by members chosen by direct election from territorial constituencies in the National Capital Territory. (b) The total number of seats in the Legislative Assembly, the number of seats reserved for Scheduled Castes, the division of the National Capital Territory into territorial constituencies (incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion: Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary. (5) The Chief Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Chief Minister and the Ministers shall hold office during the pleasure of the President. (6) The Council of Ministers shall be collectively responsible to the Legislative Assembly. {(7)(a)} Parliament may, by law, make provisions for giving effect to, or supple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er relevant Articles of the Constitution. 11) In this process, the Court recapitulated brief history of Delhi from its inception as Capital of India in the year 1911 upto the stage of insertion of Article 239AA in the Constitution, which was the result of a detailed report submitted by Balakrishnan Committee. This narration in the judgment is as follows: "15. On 12-12-1911, Delhi became the capital of India. Delhi Tehsil and Mehrauli Thana were separated from Punjab and annexed to Delhi headed by a Commissioner and it came to be known as the Chief Commissioner's province. In 1912, the Delhi Laws Act, 1912 came into force with effect from 1-10-1912 making certain laws prevalent in Punjab to be applicable to Delhi. The Delhi Laws Act, 1915 empowered the Chief Commissioner, Delhi to determine application of laws by issuing appropriate notification in the Gazette of India. The Government of India Act, 1919 and the Government of India Act, 1935 retained Delhi as a Centrally administered territory. On coming into force of the Constitution of India on 26-1-1950, Delhi became a Part C State. In the year 1951, the Government of Part C States Act, 1951 was enacted providing, inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Report reads as follows: "6.5.5. In Paras 6.5.2. and 6.5.3. we have briefly summarised the arguments for and against making Delhi a constituent State of the Union. After the most careful consideration of all the arguments and on an objective appraisal, we are fully convinced that most of the arguments against making Delhi a State of the Union are very substantial, sound and valid and deserve acceptance. This was also the view expressed before us by some of the eminent and knowledgeable persons whom we interviewed. As these arguments are self-evident we find it unnecessary to go into them in detail except those relating to constitutional and financial aspects covered by them. 6.5.6. The important argument from the constitutional angle is based on the federal type of our Constitution under which there is a constitutional division of powers and functions between the Union and the State. If Delhi becomes a full-fledged State, there will be a constitutional division of sovereign, legislative and executive powers between the Union and the State of Delhi. One of the consequences will be that in respect of matters in the State List, Parliament will have no power on jurisdiction to mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d term of art to denote the implications of the Cabinet system of Government adopted by our Constitution. Under this system, the general rule is that the exercise of executive functions by the Administrator has to be on the aid and advice of his Council of Ministers which means that it is virtually the Ministers that should take decisions on such matters. However, for Delhi, the following modifications of this general rule will have to be adopted: (i) Firstly, the requirement of acting on the aid and advice of the Council of Ministers cannot apply to the exercise by the Administrator of any judicial or quasi-judicial functions. The reason is obvious because in respect of such functions there is no question of acting on the advice of another person. (ii) Secondly, the requirement is only in relation to matters in respect of which the Legislative Assembly has the powers to make laws. This power will be subject to the restrictions already dealt with earlier in the Report. Accordingly, the Council of Ministers will not have jurisdiction to deal with matters excluded from the purview of the Legislative Assembly. (iii) Thirdly, there is need for a special provision to resolve diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9, 239A and 239AA of the Constitution. 14) Since, this interpretation is material and significant for deciding specific issues which have been raised in these appeals, we would like to incorporate the portions of the majority judgment which have interpreted these Articles: "Interpretation of Articles 239 and 239-A: 174. The aforesaid passages set two guidelines. First, it permits judicial creativity and second, it mentions one to be conscious of pragmatic realism of the obtaining situation and the controversy. That apart, there is a suggestion to take note of the behavioural needs and norms of life. Thus, creativity, practical applicability and perception of reality from the societal perspective are the warrant while engaging oneself with the process of interpretation of a constitutional provision. 175. To settle the controversy at hand, it is imperative that we dig deep and perform a meticulous analysis of Articles 239, 239-A, 239-AA and 239-AB all of which fall in Part VIII of the Constitution bearing the heading, "The Union Territories". For this purpose, let us reproduce the aforesaid Articles one by one and carry out the indispensable and crucial task of interpreti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S. observed:- "The unamended Article 239 envisaged administration of the States specified in Part C of the First Schedule of the Constitution by the President through a Chief Commissioner or a Lieutenant Governor to be appointed by him or through the Government of a neighbouring State. This was subject to other provisions of Part VIII of the Constitution. As against this, amended Article 239 lays down that subject to any law enacted by Parliament every Union Territory shall be administered by the President acting through an Administrator appointed by him with such designation as he may specify. In terms of clause (2) of Article 239 (amended), the President can appoint the Governor of a State as an Administrator of an adjoining Union Territory and on his appointment, the Governor is required to exercise his function as an Administrator independently of his Council of Ministers. The difference in the language of the unamended and amended Article 239 makes it clear that prior to 1-11-1956, the President could administer Part C State through a Chief Commissioner or a Lieutenant Governor, but, after the amendment, every Union Territory is required to be administered by the President ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from other UTs of Andaman and Nicobar Islands, Daman and Diu, Dadra and Nagar Haveli, Lakshadweep and Chandigarh. However, we may hasten to add that Puducherry cannot be compared with the NCT of Delhi as it is solely governed by the provisions of Article 239-A. P. Interpretation of Article 239-AA of the Constitution 185. We shall now advert to the interpretation of Articles 239-AA and 239-AB of the Constitution which are the gravamen of the present batch of appeals. The said Articles require an elaborate interpretation and a thorough analysis to unearth and discover the true intention of Parliament while inserting the said Articles, in exercise of its constituent power, by the Constitution (Sixty-ninth Amendment) Act, 1991. The said Articles read as follows: "239-AA. Special provisions with respect to Delhi.-(1) As from the date of commencement of the Constitution (Sixty-ninth Amendment) Act, 1991, the Union Territory of Delhi shall be called the National Capital Territory of Delhi (hereafter in this Part referred to as the National Capital Territory) and the Administrator thereof appointed under Article 239 shall be designated as the Lieutenant Governor. (2)(a) There shall be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded further that nothing in this sub-clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislative Assembly. (4) There shall be a Council of Ministers consisting of not more than ten per cent of the total number of Members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except insofar as he is, by or under any law, required to act in his discretion: Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary. (5) Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itory of Delhi has been under the consideration of the Government for some time. The Government of India appointed on 24-12-1987 a Committee to go into the various issues connected with the administration of Delhi and to recommend measures inter alia for the streamlining of the administrative set-up. The Committee went into the matter in great detail and considered the issues after holding discussions with various individuals, associations, political parties and other experts and taking into account the arrangements in the national capitals of other countries with a federal set-up and also the debates in the Constituent Assembly as also the reports by earlier Committees and Commissions. After such detailed inquiry and examination, it recommended that Delhi should continue to be a Union Territory and provided with a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concern to the common man. The Committee also recommended that with a view to ensure stability and permanence the arrangements should be incorporated in the Constitution to give the National Capital a special status among the Union Territories. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 44(1). The Court went on to say: (SCC pp. 229-30, paras 14-15) "14. … It transpires from the proviso that in the event of a difference of opinion between the Administrator and his Ministers on any matter, the Administrator shall refer the matter to the President for decision and act according to the decision given thereon by the President. If the President in a given situation agrees with what the Administrator opines contrary to the advice of the Council of Ministers, the Administrator would be able to override the advice of the Council of Ministers and on a reference to the President under the proviso, obviously the President would act according to the advice of the Council of Ministers given under Article 74. Virtually, therefore, in the event of a difference of opinion between the Council of Ministers of the Union Territory and the Administrator, the right to decide would vest in the Union Government and the Council of Ministers of the Union Territory would be bound by the view taken by the Union Government. Further, the Administrator enjoys still some more power to act in derogation of the advice of the Council of Ministers. 15. The second limb of the proviso to S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subjects in the Concurrent List and, thus, Article 239-AA(4) confers executive power on the Council of Ministers over all those subjects for which the Delhi Legislative Assembly has legislative power. 205. The legislative power conferred upon the Delhi Legislative Assembly is to give effect to legislative enactments as per the needs and requirements of Delhi whereas the executive power is conferred on the executive to implement certain policy decisions. This view is also strengthened by the fact that after the Seventh Amendment of the Constitution by which the words "Part C States" were subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs with respect to and which relate to Entries 1, 2 and 18 of the State List. 218. Sub-clause (b) of clause (3) lays down that Parliament has the powers to make laws with respect to any matter for a Union Territory including NCT of Delhi or any part thereof and sub-clause (a) shall not derogate such powers of Parliament. Sub-clause (c) of clause (3) gives Parliament the overriding power to the effect that where any provision of any law made by the Legislative Assembly of Delhi is repugnant to any provision of law made by Parliament, then the law made by Parliament shall prevail and the law made by the Delhi Legislative Assembly shall be void to the extent of repugnancy. 219. Thus, it is evident from clause (3) of Article 239-AA that Parliament has the power to make laws for NCT of Delhi on any of the matters enumerated in the State List and the Concurrent List and at the same time, the Legislative Assembly of Delhi also has the legislative power with respect to matters enumerated in the State List and the Concurrent List except matters with respect to entries which have been explicitly excluded from Article 239-AA(3) (a). 220. Now, it is essential to analyse clause (4) of Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment. 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 List for which the legislative power of the Delhi Legislative Assembly has been excluded under Article 239-AA(3)(a). Such an interpretation would thwart any attempt on the part of the Union Government to seize all control and allow the concepts of pragmatic federalism and federal balance to prevail by giving NCT of Delhi some degree of required independence in its functioning subject to the limitations imposed by the Constitution. xx xx xx 239. The proviso to Article 239-AA(4), we say without any fear of contradiction, cannot be interpreted in a strict sense of the mere words emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not a matter as respects which the Lieutenant Governor is required by any law to exercise any judicial or quasi-judicial functions, the decision of the Lieutenant Governor thereon shall be final. 245. A careful perusal of Section 41 of the 1991 Act shows that the Lieutenant Governor can act in his discretion only in matters which fall outside the legislative competence of the Legislative Assembly of Delhi or in respect of matters of which powers are entrusted or delegated to him by the President or where he is required by law to act in his discretion or to exercise any judicial or quasi-judicial functions and, therefore, it is clear that the Lieutenant Governor cannot exercise his discretion in each and every matter and by and large, his discretionary powers are limited to the three matters over which the legislative power of the Delhi Legislative Assembly stands excluded by clause (3)(a) of Article 239-AA. 253. Another important provision is Section 49 of the 1991 Act which falls under Part V of the Act titled "Miscellaneous and Transitional Provisions" and stipulates the relation of the Lieutenant Governor and his Ministers to the President. Section 49 reads thus: "49. Rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able that all citizens and high functionaries in particular inculcate a spirit of constitutional morality which negates the idea of concentration of power in the hands of a few. 284.4. All the three organs of the State must remain true to the Constitution by upholding the trust reposed by the Constitution in them. The decisions taken by constitutional functionaries and the process by which such decisions are taken must have normative reasonability and acceptability. Such decisions, therefore, must be in accord with the principles of constitutional objectivity and symphonious with the spirit of the Constitution. 284.5. The Constitution being the supreme instrument envisages the concept of constitutional governance which has, as its twin limbs, the principles of fiduciary nature of public power and the system of checks and balances. Constitutional governance, in turn, gives birth to the requisite constitutional trust which must be exhibited by all constitutional functionaries while performing their official duties. 284.6. Ours is a parliamentary form of Government guided by the principle of collective responsibility of the Cabinet. The Cabinet owes a duty towards the legislatur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous with the purpose with which the different provisions were introduced by the Framers of the Constitution or Parliament. 284.11. In the light of the contemporary issues, the purposive method has gained importance over the literal approach and the constitutional courts, with the vision to realise the true and ultimate purpose of the Constitution not only in letter but also in spirit and armed with the tools of ingenuity and creativity, must not shy away from performing this foremost duty to achieve constitutional functionalism by adopting a pragmatic approach. It is, in a way, exposition of judicial sensibility to the functionalism of the Constitution which we call constitutional pragmatism. The spirit and conscience of the Constitution should not be lost in grammar and the popular will of the people which has its legitimacy in a democratic set-up cannot be allowed to lose its purpose in simple semantics. 284.12. In the light of the ruling of the nine-Judge Bench in NDMC [NDMC v. State of Punjab, (1997) 7 SCC 339] , it is clear as noonday that by no stretch of imagination, NCT of Delhi can be accorded the status of a State under our present constitutional scheme. The status of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 implement the decision taken by the President on a reference being made by him. 284.18. The words "any matter" employed in the proviso to clause (4) of Article 239-AA cannot be inferred to mean "every matter". The power of the Lieutenant Governor under the said proviso represents the exception and not the general rule which has to be exercised in exceptional circumstances by the Lieutenant Governor keeping in mind the standards of constitutional trust and morality, the principle of collaborative federalism and constitutional balance, the concept of constitutional gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of administration is the welfare of the people in an ethical manner. There is requirement of discussion and deliberation. The fine nuances are to be dwelled upon with mutual respect. Neither of the authorities should feel that they have been lionised. They should feel that they are serving the constitutional norms, values and concepts. 284.23. Fulfilment of constitutional idealism ostracising anything that is not permissible by the language of the provisions of the Constitution and showing veneration to its sense, spirit and silence is constitutional renaissance. It has to be remembered that our Constitution is a constructive one. There is no room for absolutism. There is no space for anarchy. Sometimes it is argued, though in a different context, that one can be a "rational anarchist", but the said term has no entry in the field of constitutional governance and rule of law. The constitutional functionaries are expected to cultivate the understanding of constitutional renaissance by realisation of their constitutional responsibility and sincere acceptance of the summon to be obeisant to the constitutional conscience with a sense of reawakening to the vision of the great living ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislate power, the appellants emphasised before us that the Constitution Bench has categorically held that this power extends over all the subjects except three subjects in the State List, i.e., Entries 1, 2 and 18. The executive power also extends to all subjects in the Concurrent List. The appellants also submitted that this executive power is to the exclusion of the executive power of the Union with respect to such matters, meaning thereby such power exclusively vests with the GNCTD. 24) The aforesaid manner of reading the Constitution Bench judgment is disputed by the respondents. Insofar as legislative domain of the Legislative Assembly of Delhi is concerned, though the respondents accept that the Legislative Assembly has the power to make laws in respect of all the Entries in List II except matters with respect to Entries 1,2 and 18 and Entries 64, 65 and 66 of List II insofar as they relate to said Entries 1, 2 and 18 and also power to legislate in respect of subject matters contained in the Concurrent List (List III). However, their submission is that this power is not exclusive to the Legislative Assembly of Delhi. On the contrary, the power of the Union, i.e., Parliam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 mentioned in List II of the 7th Schedule, in the Governor of any State to be exercised by the Council of Ministers of the said State Government. In other words, it had been submission of both Government of NCT of Delhi and Union of India before the constitution Bench of this court that unless and until this Court accepts the claim of the Government of NCT of Delhi that NCT Delhi would deserve to be treated as a State, the claim that Exclusive Executive Jurisdiction in relation to all items in List II (except matters with respect of Entries 1, 2 and 18 of the State List ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgments of this Court including in the judgment of the Constitution Bench of this court in the present case on July 04, 2018 where the following dictum had been incorporated:- "……..277 ….(xv)…..However, if the Parliament makes law in respect of certain subjects falling in the State List or the Concurrent List, the executive action of the State must conform to the law made by the Parliament……." 33) The respondents point out that in all the three opinions constituting the judgment dated July 04, 2018, this Court has specifically and categorically rejected both the above-mentioned contentions raised on behalf of the NCT Delhi and has categorically held that Article 239 continues to apply to NCT Delhi and further that NCT Delhi is not a State but continues to remain a Union Territory. Reference in this regard may be made to the following paras: "196. Thus, NDMC [NDMC v. State of Punjab, (1997) 7 SCC 339] makes it clear as crystal that all Union Territories under our constitutional scheme are not on the same pedestal and as far as NCT of Delhi is concerned, it is not a State within the meaning of Article 246 or Part VI of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature to Article 239-AA(3)(c)]. 453. The judgment of the majority also holds that all Union Territories are not situated alike. The first category consists of Union Territories which have no legislature at all. The second category has legislatures created by a law enacted by Parliament under the Government of Union Territories Act, 1963. The third category is Delhi which has "special features" under Article 239-AA. Though the Union Territory of Delhi "is in a class by itself", it "is certainly not a State within the meaning of Article 246 or Part VI of the Constitution". Various Union Territories - the Court observed - are in different stages of evolution. However, the position remains that these Union Territories, including the NCT are yet Union Territories and not a State. Authored by Justice Ashok Bhushan: 559. After examining the constitutional scheme delineated by Article 239-AA, another constitutional principle had been laid down by the Constitution Bench that Union Territories are governed by Article 246(4) notwithstanding their differences in respective set-ups and Delhi, now called the "National Capital Territory of Delhi" is yet a Union Territory. The Constitution B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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 239AA in relation to NCTD in the entire constitutional scheme (and as laid down in the judgment dated July 04, 2018 passed by the Constitution Bench of this Court including in paras 217, 218 and 219 of the majority judgment), brings into existence the position as tabulated below: Union GNCTD Exclusive Executive Power of the Union Non-Exclusive Executive Power of the Union Exclusive Executive Power of GNCTD Non-Exclusive Executive Power of GNCTD All the entries in List I and Entries 1,2 ad 18 of the List II and Entr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 incident of control, the Lieutenant Governor and Council of Ministers must comply with the particular directions issued by the President. Such directions are obviously issued on the aid and advice of the Union Council of Ministers. Section 52 stipulates that all contracts relating to the administration of the Capital are made in exercise of the executive power of the Union and suits and proceedings in connection with the administration can be instituted by or against the Union Government. 87. This survey of the provisions of the GNCTD Act, 1991 indicates that there is a significant interface between the President and the Lieutenant Governor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operation of any provision of article 239AA or of all or any of the provisions of any law made in pursuance of that article for such period and subject to such conditions as may be specified in such law and make such incidental and consequential provisions as may appear to him to be necessary or expedient for administering the National Capital Territory in accordance with the provisions of article 239 and article 239AA. 356. Provisions in case of failure of constitutional machinery in State (1) If the President, on receipt of report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with he provisions of this Constitution, the President may be Proclamation (a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State; (b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament; (c) make such incidental and consequential provisions as appear to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form one mass or whole; process of merger of two or more droplets of particles to become one single droplet") between the view expressed in the three opinions in the said judgment dated 04.07.2018. 42) We may record at this stage that Dr. Abhishek Manu Singhvi, learned Senior Advocate who appeared for the intervenor, Reliance Industries Limited supported the aforesaid stand taken by the Union of India. He also submitted that no exclusive executive power has been conferred upon the GNCTD, i.e, to the exclusion of the Central Government. He argued that the Scheme behind Article 239AA of the Constitution was 'hybrid' in nature relatable to Lists II and III. Detailed submission of Dr. Singhvi in this behalf would be taken note of while dealing with the issue pertaining to ACB. 43) We may point out at this stage that learned senior counsel appearing for the Union of India have also argued, in the alternative, that if the interpretation suggested by them to the aforesaid judgment of the Constitution Bench is not acceptable, the matter needs to be referred to the Constitution Bench again. To put it differently, the submission is that if this Bench interprets that the Constitution Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;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 the Legislative Assembly to legislate and this restriction has to be understood in the context of conferment of special status." 46) The above contention is answered specifically in para 214 of the majority judgment of the Constitution Bench, where it is held that the Delhi Assembly has Legislative Power with respect to all matters in the State and Concurrent List except "matters with respect to entries which have been explicitly excluded from Article 239AA(3)(a)". Thus, the contention of the Union of India was that matters in List II and List III can be excluded in two different ways, explicitly and implicitly, on account of us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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". 49) It was further submitted that reliance placed by the learned counsel appearing for the Union of India on Balakrishnan Committee report for interpreting the provisions of Article 239AA was totally misconceived inasmuch as that aspect has already been considered in the judgment of the Constitution Bench. It was argued that the Constitution Bench has interpreted the provisions of Articles 239, 239AA and 239AB as they apply to NCT of Delhi based on first principles of constitutionally mandated representative democracy, which is based on popular will. The Constitution Bench has not been constrained by textual limitations i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nderstanding 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 contained in Article 145(3) of the Constitution and in particular the proviso thereof, which reads as under: "Article 145(3): The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five: Provided that, where the Court hearing an appeal under any of the provisions of this chapter other than Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf and is not left to the Parliament. At the same time, NCTD remains a Union Territory and is not elevated to the status of a 'State' governed by Part VI of the Constitution (Articles 152 to 237). Thus, with the creation of Legislative Assembly as well as elected Government and conferment of all legislative and executive powers, concept of federalism has been incorporated in Article 239AA. Article 239AA has been interpreted by the Constitution Bench keeping in view this principle of federalism. All these aspects have been kept in view by the Constitution Bench while deciding the status of the NCTD as well as conferment of legislative and executive powers to the Legislative Assembly and GNCTD respectively. The CB judgment, therefore, has to be read keeping in view all these parameters as well as the constitutional principles adopted in interpreting Article 239AA. 56) Insofar as legislative power of the NCTD is concerned, there is no dispute that it extends to all the subject matters contained in various Entries of List II with the specific exclusion of Entries 1, 2 and 18. Likewise, it extends to all the Entries in the Concurrent List, i.e. List III. At the same time, it is also a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to whether the CB Judgment held that insofar as the executive power of GNCTD is concerned, it is to the exclusion of the Centre, or, as contended by the learned senior counsel appearing for the Union of India, such executive power given to Delhi Government is co-extensive with that of Central Government. 58) It is in the aforesaid backdrop that the observations of the Constitution Bench, particularly the majority view, have to be discerned and given an appropriate meaning. Undoubtedly, the majority judgment in the Constitution Bench decides that the executive power of GNCTD is co-extensive with legislative power and it extends over all the subjects of the lis to accept subjects mentioned in Entries 1, 2 and 18 and it also extends to all subjects in List III. This is the clear mandate of the Constitution Bench. The controversy, however, is on the issue as to whether such executive power of GNCTD is to the exclusion of the power of the Union Government. In this behalf, it may be noted that the majority judgment has held that such executive power of the Delhi Government is to the exclusion of the executive power of the Union. On the other hand, in a separate judgment rendered by one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he legislature of the State has also power to make laws. (2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this Article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution." 85. The proviso to Article 73(1) provides that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the legislature of the State has also power to make laws. Obviously, the proviso refers to the Concurrent List where both Parliament and State have power to make laws. Executive power in reference to Concurrent List has been deliberately excluded to avoid any duplicacy in exercise of power by two authorities. Article 73 as it stood prior to the Constitution (Seventh Amendment) Act, 1956 contained the expression after the word State "specified in Part A or Part B of the First Schedule". Thus, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the provisions of the Government of National Capital Territory of Delhi Act, 1991. The insertion of Article 239-AA by the Constitution Sixty-ninth Amendment has been followed by enactment of the Government of National Capital Territory of Delhi Act, 1991 which Act was enacted by Parliament in exercise of power under Article 239-AA(7)(a) of the Constitution. Section 49 of the Act, 1991 provides as follows: "49. Relation of Lieutenant Governor and his Ministers to President.-Notwithstanding anything in this Act, the Lieutenant Governor and his Council of Ministers shall be under the general control of, and comply with such particular directions, if any, as may from time to time be given by the President." 86. Legislative power of the Union is exercised by the President as per the constitutional scheme and Section 49 itself indicates that Parliament clearly envisaged the Council of Ministers and the Lieutenant Governor shall be under the general control of, and comply with such particular directions issued by the President from time to time. The power of the President to issue direction is not limited in any manner so as to put any restriction on the executive power of the Uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, the provision to Article 239AA(4) must be given an interpretation which is marked with a sense of fine constitutional balance. The balance which is drawn must preserve the vital interest of the Union Government in the governance of the National Capital while supporting the legitimacy and constitutional status of the Council of Minister, which owes collective responsibility to the Legislative Assembly and which, in its capacity of the executive arm of the Government, tenders aid and advise to the Lieutenant Governor under a cabinet form of governance. According to the learned Judge, three lines of reasoning emerge in this behalf which are mentioned in the opinion. The first line of interpretation would have the Court interpret the expression 'difference of opinion between the Lieutenant Governor and his Council of Ministers on any of the matter' without reservation or qualification, which would be a purely literal or textual construction. In this sense 'any matter' would mean any matter without restriction. Second interpretation would be to read the aforesaid expression to be read and confined to specific categories. Third interpretation has two facets. As per the first fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers, consistent with its status as a Union Territory. 139. The exercise of the constituent power to introduce Article 239-AA was cognizant of the necessity to protect national interests inherent in the governance of a National Capital. A sense of permanence and stability was sought to be attributed to the arrangements made for governing Delhi by bringing in a constitutional amendment. Both in terms of the reach of the legislative power, as well as in relation to the exercise of executive power, the special constitutional arrangements for Delhi recognise that the governance of Delhi implicates a sense of national interest. When matters of national interest arise, they would predicate a predominant role for institutions of national governance. 140. Consistent with the need to preserve national interest, it would not be appropriate to restrict the ambit of the proviso to Article 239-AA(4) to situations where the action of the Government is ultra vires the limits of its executive powers. This becomes evident on a construction of the provisions of Section 41(1)(i) and Section 44(1)(a) of the GNCTD Act. Clause (i) of Section 41(1) enables the Lieutenant Governor to act in his discret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 239-AA(7). Hence the proviso must be read in conjunction with the law enacted by Parliament and the Transaction of Business Rules made by the President, to give clarity to the operating procedure for invoking the proviso. Moreover, once a reference is made to the President, the Lieutenant Governor is bound by the decision of the President. The Lieutenant Governor has the authority to take action which is warranted by emergent circumstances until the President has taken a decision. But before recourse is taken to the proviso, the Lieutenant Governor must make every effort with the Minister or, as the case may be, the Council of Ministers to resolve a matter of difference. The nature of the differences which may warrant a reference to the President cannot be exhaustively catalogued. But it would be appropriate to construe the proviso as a protector of national concerns in regard to governance of the NCT. The Lieutenant Governor is a watchdog to protect them. The Lieutenant Governor may, for instance, be justified in seeking recourse to the proviso where the executive act of the Government of the NCT is likely to impede or prejudice the exercise of the executive power of the Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitutional 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 was) clearly holds that it is to the exclusion of the executive power of the Central Government. That is the effect of the combined reading of paragraphs 214 to 218 of the Constitution judgment. The argument of the respondents to the contrary is an attempt to reargue the case. However, judicial discipline prevents us from embarking upon such a journey. In fact, it is for this reason the learned counsel appearing for the Union of India have also argued that the majority opinion is not correct and matter needs to be referred to the larger Bench for reconsideration. This course of action would also not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue is raised in Civil Appeal Nos. 2358, 2359 and 2360 of 2017. In all these three appeals, the common issue is whether the GNCTD is an "Appropriate Government" under the Commission of Enquiry Act, 1952? 67) The fourth issue, which is raised in Civil Appeal 2363 of 2017, is: whether under Section 108 of the Electricity Act, 2003 and under Section 12 of the Delhi Electricity Reforms Act, 2000, the power to issue directions with the State Commission is with the Government of NCT of Delhi? Similar issue is the subject matter of Civil Appeal 2361 of 2017, viz. whether the orders of the GNCTD nominating Directors to Distribution Companies in Delhi under the Delhi Electricity Reforms Act, 2000 read with Delhi Electricity Reforms (Transfer Scheme) Rules, 2001, without obtaining the concurrence of the Lieutenant Governor are valid? 68) The fifth issue is common to Civil Appeal No. 2362 of 2017 filed by the GNCTD and Civil Appeal No. 2364 of 2017 filed by Union of India, wherein the issue is whether the Revenue Department of the GNCTD has the power to revise the minimum rates of Agricultural Land (Circle Rates) under the provisions of Indian Stamp Act, 1899? 69) The sixth issue, which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 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 Article 239AA of the Constitution, as interpreted by this Court. This Notification reads as under: " MINISTRY OF HOME AFFAIRS NOTIFICATION New Delhi, the 21st May, 2015 S.O. 1368(E).-Whereas article 239 of the Constitution provides that every Union Territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify; And whereas article 239AA inserted by 'the Constitution (Sixty-ninth Amendment) Act, 1991' provides that the Union Territory of Delhi shall be called the Nati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey relate to Entries 1, 2 & 18 as also 'Services' fall outside the purview of Legislative Assembly of the National Capital Territory of Delhi and consequently the Government of NCT of Delhi will have no executive power in relation to the above and further that power in relation to the aforesaid subjects vests exclusively in the President or his delegate i.e. the Lieutenant Governor of Delhi. Now, therefore, in accordance with the provisions contained in article 239 and sub-clause (a) of clause (3) of 239AA, the President hereby directs that - "(i) subject to his control and further orders, the Lieutenant Governor of the National Capital Territory of Delhi, shall in respect of matters connected with 'Public Order', 'Police', 'Land' and 'Services' as stated hereinabove, exercise the powers and discharge the functions of the Central Government, to the extent delegated to him from time to time by the President. Provided that the Lieutenant Governor of the National Capital Territory of Delhi may, in his discretion, obtain the views of the Chief Minister of the National Capital Territory of Delhi in regard to the matter of 'Services' wherever he deems it appropriate. 2. In the Notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bers 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). "Joint Cadre Authority" means the Committee of Representatives referred to in rule 4. xx xx xx 4. Committee of representatives - (1) There shall be a Committee consisting of a representative of each of the Governments of the Constituent States, to be called the Joint Cadre Authority. (2) The representatives of the Governments of the Constituent States may either be members of an All-India Service or Ministers in the Council of Ministers of the Constituent States, as may be specified by the Governments of the Constituent States." The Indian Administrative Service (Cadre) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GNCTD. Consequently, if within the GNCTD, the said officer has to be posted from one post to the another, it is the GNCTD alone which has the powers under the Service Rules. This is in consonance with the position that prevails in the states of Arunachal Pradesh, Mizoram and Goa which are also members of the Joint Cadre in the AGMUT Cadre and who like the NCTD and unlike other Union Territories have a representative in the Joint Cadre Authority. 77) Likewise, insofar as DANICS is concerned, the submission is that under the Delhi, Andaman & Nicobar Islands, Lakshasweep, Daman & Diu and Dadra & Nagar Haveli Civil Services Rules, 2003, same consequence follows. Following Rules were referred to: "11. Appointment to the Service - All appointment to the Service shall be made by the Appointing Authority to the Junior Administrative Grade-I or Junior Administrative Grade-II or Selection Grade or Entry Grade of the Service and not against any specific post included in the Service. 12. Posting - Every member of the Service allocated to an Administration shall, unless he is appointed to an ex-cadre post, or is otherwise not available for holding a duty post owing to the exigencies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or functions are entrusted or delegated to him by the President; or (ii) in which he is required by or under any law to act in his discretion or to exercise any judicial functions. (2) If any question arises as to whether any matter is or is not a matter as respects with the Lieutenant Governor is by or under any law required to act in his discretion, the decision of the Lieutenant Governor thereon shall be final. (3) If any questions arises as to whether any matter is or is not a matter as respects with the Lieutenant Governor is by or under any law required by any law to exercise any judicial or quasi-judicial functions, the decision of the Lieutenant Governor thereon shall be final." 80) According to Mr. Sundaram, discretion was conferred upon the Lieutenant Governor in respect of this subject matter by virtue of clause (i) of sub-section (1) of Section 41 as the matter falls outside the purview of the powers conferred on the Legislative Assembly. Therefore, the President was competent to issue Notification dated May 21, 2015 thereby entrusting the powers and functions in respect of 'Services' to the Lieutenant Governor. According to him, this was supported by Rule 46 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Governor was facing even in undertaking consultations with the Chief Minister. Therefore, now it is entirely within the discretion of the Lieutenant Governor to have the views of the Chief Minister or not. To that extent this Notification is only clarification of the earlier Notification dated September 24, 1998 and in substance the legal implications of this Notification were exactly the same as Notification dated September 24, 1998. Learned counsel also argued that the Constitution provides for services of the States and services of the Union. All Union Territories services are services of the Union, as held in a recent judgment of this Court in Bir Singh v. Delhi Jal Board and Others (2018) 10 SCC 312. For example, in Delhi, IAS, DANICS & DASS cadre, as also teachers and doctors, are services of the Union and the recruitment rules have been framed with the approval of the President or of Lieutenant Governor as a nominee of the President. The learned counsel also pointed out that Rule 46 of the Transaction of Business Rules, along with the delegation made by the President under Article 239AA of the Constitution from time to time, has always been governing the process of transf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber 1, 1956, when the Constitution (Seventh Amendment) Act, 1956, came into force, the President had the power to adapt the laws for the purpose of bringing the provisions of any law in force in India into accord with the provisions of the Constitution. It was under that power that the President issued the Adaptation of Laws (No. 1) Order, 1956, which, as has been shown, substituted a new clause (58) in Section 3 of the General clauses Act providing, inter alia, that the expression "State" shall, as respects any period after the commencement of the Constitution (Seventh Amendment) Act, 1956, mean "a State specified in the First Schedule to the Constitution and shall include a Union Territory". It cannot be said with any justification that there was anything repugnant in the subject or context to make that definition inapplicable. By virtue of Article 372A(1) of the Constitution, it was that definition of the expression "State" which had effect from the first day of November, 1956, and the Constitution expressly provided that it could "not be questioned in any court of law". The High Court therefore went wrong in taking a contrary view and in holding that "Union territories are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... empowered to act in his discretion in such a matter. 86) In the aforesaid backdrop, the first and foremost question is whether 'services' fall outside the purview of legislative assembly of NCTD? To put it otherwise, whether Entry 41 of List II does not cover the subject matter? Entry 41 of List II deals with 'State Public Services' and 'State Public Service Commission'. It is undisputed that State Public Service Commission does not exist in NCTD. When we are dealing with All India Services and DHANICS Services etc., it is also doubtful to mention it as State Public Service. 87) The further issue, however, is to see as to whether it is within the powers of GNCTD to assign such officers to particular departments, once they are allocated to the NCTD by the joint cadre authority. As per Rule 2(c) of Indian Administrative Services (Cardre) Rules, 1954, State includes a Union Territory. Rule 7 deals with posting and, inter alia, stipulates that in the case of joint cadre, posting shall be by the State Government concerned. In the context of Article 312 of the Constitution, this Court has held in Prem Kumar Jain that Union Territories are States for the purpose of the said Article. 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices) 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 Ministry of Home Affairs, an advisory can be given to that Ministry to make these guidelines under the Transaction of Business Rules and to provide consultation by the Lieutenant Governor with the Chief Minister up to certain level of officers. 91) We may add that insofar as disciplinary authorities are concerned, the same are already prescribed as per the CCA (CCS) Rules and the Rules applicable for different services including IAS & DANICS. The appointing and disciplinary authority is the President of India, as per the powers delegated by the President from time to time. Vigil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8th November, 1993 issued by the Lieutenant Governor of the National Capital Territory of Delhi shall be applicable to the officers and employees of that Government only and for that purpose amends the said notification, namely:- In the said notification, after the existing Paragraph, the following Paragraph shall be inserted, namely:- "2. This notification shall apply to the officers and employees of the Government of National Capital Territory of Delhi." [F.no. 14036/4/2014-Delhi-I (Pt.File)] I.S. Chahal, Jt. Secretary xx xx xx Notification dated May 21, 2015 THE GAZETTE OF INDIA EXTRAORDINARY PART II - SECTION 3 - SUB SECTION (II) PUBLISHED BY AUTHORITY NEW DELHI, THURSDAY, MAY 21, 2015/ VAISAKHA 31, 1937 MINISTRY OF HOME AFFAIRS NOTIFICATION New Delhi, the 21st May, 2015 S.O. 1368(E) - Whereas Article 239 of the Constitution provides that every Union Territory shall be administered by the President acting, to such extent as he things fit, through an administrator to be appointed by him with such designation as he may specify; And whereas Article 239AA inserted by the Constitution (Sixty-ninth Amendment) Act, 1991 provides that the Union Territory of Delhi sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 Lieutenant Governor of the National Capital Territory of Delhi, shall, in respect of matters connected with 'Public Order', 'Police', 'Land' and 'services' as stated hereinabove, exercise the powers and discharge the functions of the Central Government to the extent delegated to him from time to time by the President. Provided that the Lieutenant Governor of the National Capital Territory of Delhi may, in his discretion, obtain the views of the Chief Minister of the National Capital Territory of Delhi in regard to the matter of 'services' wherever he deems it appropriate. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the purpose of Section 2(s) of Cr.P.C. The power to issue notification under Section 2(s) is now vested with the Delhi Government. Reference is made to Entry 2 of List III of the Seventh Schedule, which reads as under: "2. Criminal procedure, including all matters included in the Code of Criminal Procedure at the commencement of this Constitution." 96) It is, therefore, submitted that the Legislative Assembly for Delhi has legislative competence in respect of Cr. P.C, which is directly relatable to Entry 2 of List III. Further the Delhi Government has exclusive execut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as in force in Delhi. The criminal procedure was governed by the Criminal Procedure Code, 1898. The Criminal Procedure Code, 1973 came into force w.e.f. April 1, 1974 though it was gazetted on January 25, 1974. In this context, the President of India issued the notification dated March 20, 1974. A series of notifications, beginning from the year 1974, in respect of establishment and functioning of the ACB have been issued by the President and Administrator/LG in exercise of powers under Article 239(1) of the Constitution and Section 2(s) Cr.P.C., 1973 read with Delhi Police Act. Significantly, notifications issued prior to July 23, 2014 have not been challenged. Some of these notifications were issued even before the insertion of Article 239AA (February 01, 1992). The first notification was issued by the President on March 20, 1974 in exercise of powers under Article 239(1) of the Constitution. The notification directs the Administrators of all UTs other than Arunachal Pradesh and Mizoram to exercise, subject to control of the President and until further orders, the powers and functions under Cr.P.C., 1973 as mentioned in the annexed schedule. The notification has a condition that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sation 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 previous notification dated May 20, 1975, and August 23, 1975 and issued in exercise of powers under Section 2(s) Cr.P.C. 1973 read with notification dated March 20, 1974, that ACB Delhi Administration at Tis Hazari, Delhi would be police station in relation to offences under Section 161 to 165A IPC and the Prevention of Corruption Act, 1947 and also attempts, abetment and conspiracies in relation to said offences. It was to have jurisdiction over the whole of UT Delhi. After the enforcement of the Prevention of Corruption Act, 1988 which also omitted Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icates 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 establishment of ACB is with respect to Entry 1 and 2 List II of Schedule VII of the Constitution of India. The establishment of CBI and its power of investigation falls under Entry 8/ 80 list I of Schedule VII whereas the establishment of ACB would be under the Delhi Police Act, 1978. 102) He also submitted that Section 5 of PC Act, 1947 and Section of PC Act, 1988 envisage investigations of offences done by CBI/Delhi Police. Hence, Union or Administrator acting under DSPE Act and Delhi Police Act, 1978 can decide which of the two would investigate officers, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... historical developments narrated by him, and extracted above. We may also emphasise that the issue is limited, viz., whether ACB is empowered to register cases in respect of Central Government employees as well? 107) We find that the challenge laid by the appellant to these Notifications is predicated on Entry 2 of List II. Even after conferment of the status of quasi-State upon Delhi (which though in constitutional term remains Union Territory), Article 239AA (which gives such a status) itself excludes Entry 2 from the domain of NCTD. Thus, in respect of 'Police', NCTD does not have either legislative or executive power. This Court is required to look into the substance of such an exclusion and cannot be guided by hyper technicalities. Even in the Constitution Bench judgment it has been emphasised time and again, and in fact in all the three opinions of the Hon'ble Judges, that the text of Article 239AA is to be read contextually. Therefore, what has been specifically denied to GNCTD, it cannot venture to gain that power on such a plea. 108) Dr. Singhvi rightly submitted that it is a settled principle that legislative entries are to be interpreted in a broad and liberal manner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill investigate those cognizable cases which can be tried by the court having jurisdiction over the local area concerned would have power to inquire into or try. These provisions do not provide how parallel jurisdiction of two police stations is to be demarcated. In fact, parallel jurisdiction to investigate is not contemplated by Cr.P.C. as that would result in chaos and anarchy and would frustrate the very purpose of investigation. This leads us to hold that the Government which has competence over Entry 2 List II would have power to segregate and demarcate the jurisdiction to investigate as between two police forces. Hence the impugned notifications are valid. This conclusion becomes inevitable when Cr.P.C. is read with the Delhi Police Act, 1978 and other cognate enactments. 111) Here we have to keep mind the fact that Entry 1 of List II, subject matter whereof is 'public order', also stands excluded from the purview of GNCTD and is the exclusive domain of the Parliament/ Central Executive. The term 'public order' has been assigned widest amplitude and connotation (See - Stainislaus v. State of Madhya Pradesh and Others (1977) 1 SCC 677 and Zameer Ahmed Latifur Rehman Sheikh v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this behalf, as noted above, contention of the appellant is that the Constitution Bench has so decided. However, when it comes to excepted matter in Entry 2 List II, though powers of NCTD are totally excluded, by indirect method the appellant wants concurrent jurisdiction over the same. It would be difficult to accept such a position. It is also pertinent to mention that insofar as Notification dated November 08, 1993 is concerned, whereby ACB of NCTD at Old Secretariat as police station was created by the Lieutenant Governor, the same has not been challenged. No doubt, there was no elected Government at that time. Fact remains that this Notification has held the field even thereafter throughout. The impugned Notifications are only a modification to the aforesaid Notification dated November 08, 1993 to a limited extent whereby it is clarified that this earlier Notification shall be applicable to 'the officers and employees of that Government only (GNCTD)'. Thus, the only effect is that the ACB is not empowered to investigate into the offences of Central Government employees under the Prevention of Corruption Act. Admittedly, this investigation is carried out by the CBI. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 same was passed without seeking views/concurrence of the Lieutenant Governor. It was argued that as far as the concurrence of the Lieutenant Governor is concerned, it has already been held by the Constitution Bench that no concurrence is required. [However, we may add here that even if no concurrence is required, the matter has to be sent to the LG for his views, in terms of proviso to Article 239AA(4), which, of course, has to be within the parameters specified in the opinion authored by Justice Chandrachud and conta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is argued that reliance on Section 3(60) of the GC Act is unsustainable. The High Court has applied Section 3(60) of the GC Act without understanding the context of appointment of Commission of Inquiries and without appreciating that the COI Act is only a procedural mechanism for exercise of power which exists independent of this Act in the NCT of Delhi. 124) On this subject matter, Mr. Maninder Singh responded to the aforesaid arguments of Mr. Naphade. His first submission is that COI Act is a Parliamentary enactment and, therefore, implementation thereof has to be as per the provisions of the said Act. He referred to para 12 of the judgment in Rai Sahib Ram Jawaya Kapur's case which reads as under: "12. It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Under that notification, there was delegation of powers to the Lieutenant Governor to grant sanction. The said notification which finds place in the annexures to the written submissions made on behalf of Gilani shows that it was issued under Article 239(1) of the Constitution enabling the Administrator of the Union Territory to discharge powers and functions of the State Government under CrPC. We accept the submission of the learned Senior Counsel for the State that the delegation of power contained in the said notification will continue to operate unless Parliament by law provides otherwise. The Government of NCT of Delhi Act, 1991 does not in any way affect the validity of delegation contained in the presidential notification issued under Article 239." 126) He pointed out that this judgment was also placed before the Constitution Bench while considering the proposition that the executive power of the State Government is limited under the Constitutional scheme, even after the enactment of the GNCTD Act. Chandrachud, J. opined that: "450. The issue as to whether the Lieutenant Governor of the NCT is competent to accord sanction for prosecution under the Prevention of Terro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 dated August 11, 2015 was the result of malafide power of the GNCTD. According to him, the matter had been investigated by the ACB, dealt with by the LG and was also the subject matter of an Inquiry headed by a retired Chief Justice of a High Court. Initiation of a second round by constitution of Commission of Inquiry to look into the very same allegations investigated by the ACB was not only an abuse of the process but an excess of authority exercised by it to do indirectly what it could not do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Appropriate Government in relation to the Union Territory. This contention was repelled by the industrial tribunal but upheld by the High Court. High Court had held that the administrator of the Union Territory of Goa, Daman & Diu shall be the administrator who could make the reference. This Court set aside the order of the High Court and upheld that of the industrial tribunal holding that Central Government was the Appropriate Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the President etc. Thus the executive power of the Administrator extends to all subjects covered by the legislative power. But in the event of a difference of opinion the President decides the point. When President decides the point, it is the Central Government that decides the point. And that is binding on the Administrator and also the Ministers. Section 45 provides that "the Chief Minister of a Union Territory shall be appointed by the President". Section 46 confers power on the President to make rules for the conduct of business. Section 55 provides that "all contracts in connection with the administration of a Union Territory are contracts made in the exercise of the executive power of the Union and all suits and proceedings in connection with the administration of a Union Territory shall be instituted by or against the Government of India". In exercise of the power conferred by Article 240, the President has inter alia enacted the Goa, Daman and Diu (Laws) Regulation, 1962. By clause (3) of the regulation, the Acts enumerated in the Schedule appended to the Act were extended to the Goa, Daman and Diu subject to the notifications, if any, specified in the Schedule. The Schedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of a Union Territory, the Administrator thereof acting within the scope of the authority given to him under Article 239 of the Constitution, would be comprehended in the expression "Central Government". When this inclusionary part is put in juxtaposition with exclusionary part in the definition of the expression "State Government" which provides that as respects anything done or to be done after the commencement of the Constitution (Seventh Amendment) Act, 1956, it shall mean, in a State, the Governor, and in a Union Territory, the Central Government, the difference conceptually speaking between the expression "State Government" and the "Administration of a Union Territory" clearly emerges. Therefore, there is no room for doubt that the expression "Administration of a Union Territory", Administrator howsoever having been described, would not be comprehended in the expression "State Government" as used in any enactment. These definitions have been modified to bring them to their present format by Adaptation of Laws (No. 1) Order, 1956. Section 3 of the General Clauses Act, 1897 provides that in all Central Acts and Regulations made after the commencement of the Act unless there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pies in regard to Part C States, a position analogous to that of a Governor in Part A States and of a Rajpramukh in Part B States". It was also observed that "though the Part C States are centrally administered under the provisions of Article 239, they do not cease to be States and become merged with the Central Government". It was then urged that by the amendment to Articles 239 and 240 by the Constitution (Seventh Amendment) Act, 1956 and introduction of Articles 239-A and 239-B by the Constitution (Fourteenth Amendment) Act, 1962, only the nomenclature of the Part C States has undergone a change, now being described as Union Territory, but the position of the Union Territory is the same as it was as Part C States and therefore, the view taken in the aforementioned decisions that the administration of Part C States could appropriately be described as State Government would mutatis mutandis apply to the administration of Union Territories. In other words, it was said that they can be appropriately described as State Governments for various purposes. Both the decisions were rendered prior to the amendment of Part VIII of the Constitution in 1956 and the insertion of the Articles 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Framers of the Constitution as also Parliament in enacting these definitions have clearly retained the distinction between State Government and Administration of Union Territory as provided by the Constitution. It is especially made clear in the definition of expression "Central Government" that in relation to the Administration of a Union Territory, the Administrator thereof acting within the scope of the authority given to him under Article 239 of the Constitution, would be comprehended in the expression "Central Government". When this inclusionary part is put in juxtaposition with exclusionary part in the definition of the expression "State Government" which provides that as respects anything done or to be done after the commencement of the Constitution (Seventh Amendment) Act, 1956, it shall mean, in a State, the Governor, and in a Union Territory, the Central Government, the difference conceptually speaking between the expression "State Government" and the "Administration of a Union Territory" clearly emerges. Therefore, there is no room for doubt that the expression "Administration of a Union Territory", Administrator howsoever having been described, would not be comprehende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, the decision of the State Government thereon shall be final." 138) He pointed out that similar powers are conferred upon the Central Government under Section 107 of the Electricity Act, namely, to give directions to the Central Electricity Regulatory Commission (CERC). According to him, Delhi Electricity Reforms Act, 2000 (DERC Act), with which we are concerned, contains Section 12 which is exactly on the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Deputy Speaker, Arunachal Pradesh Legislative Assembly & Ors.12 which discusses in detail discretionary power of the Governor under Article 163 of the Constitution. This judgment also provides instances of situations wherein Governor may exercise power "in his discretion" independent of, or, contrary to aid and advice of Council of Ministers. Based on that, Mr. Sibal submitted that exercise of powers under the DER Act does not fall within the domain of discretionary power of the LG and, therefore, he is supposed to act on the aid and advice of Council of Ministers. 142) Reply of Mr. Maninder Singh to the aforesaid arguments was that the Electricity Act, 2003 is a Parliamentary enactment which was passed after the insertion of Article 239AA. Under Section 108 of the Electricity Act, 2003, it is the jurisdiction of the 'State Government' to issue any direction to DERC and such State Government, in relation to Union Territory like Delhi, would mean Central Government as per Section 3(60) of the GC Act. He also referred to Section 83(1)(b) of the Electricity Act, 2003 which makes it clear that for any Union Territory, it would be Central Government which is the Appropriate Government. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus, 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 powers. 146) What follows from the aforesaid is that insofar as DER Act is concerned, it is an enactment enacted by Legislative Assembly of NCTD. It operates within the NCTD. Government here means GNCTD i.e. LG who is supposed to act on the aid and advice of the Council of Ministers. Under this Act, Delhi Government has power to issue directions to the DERC in matters of policies involvi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral 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 notification is issued in the name of LG, prior concurrence of LG was a pre-requisite for issuance of such a notification. (b) Subject matter of the notification i.e. fixation of circle rates would fall under Entry 18 of List II over which the Parliament has the exclusive power inasmuch as it stands specifically excluded from the purview of GNCTD. 149) Argument of the appellant/GNCT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Stamp [Prevention of Undervaluation of Instruments] Rules, 1978; Madhya Pradesh Stamp [Prevention of Undervaluation of Instruments] Rules, 1975; Chhattisgarh Stamp [Prevention of Undervaluation of Instruments] Rules, 2001; Kerala Stamp [Prevention of Undervaluation of Instruments] Rules, 1968; Maharashtra Stamp [Determination of true market value of property] Rules, 1995. 153) It was also pointed out that it was the Indian Stamp (Delhi Amendment) Act, 2001 which was passed by the Legislative Assembly of Delhi on 28th March, 2001 and received Presidential- assent on 18 th July, 2001 and the Indian Stamp (Delhi Amendment) Act, 2007 which was passed by the Legislative Assembly of Delhi on 18th September, 2007 and received the Presidential assent on 5th November, 2007 which in fact first dealt with the stamp duty payable on conveyance deeds in Delhi. Given that neither of these Acts have been challenged and in fact the Union has given its assent to these Acts, it is submitted that there can be no question of the Union now questioning the power of the GNCTD to collect such stamp duty and fix circle rates in respect of such collections. 154) The appellant also stated that Section 27(3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fix the rates of stamp duty. 158) It would be pertinent to note that the High Court in the impugned judgment has arrived at a conclusion that notification dated August 4, 2015 revising the rates of agricultural land (circle rates) is traceable to Entry 63 of List II and not to Entry 18 of List II. We are in agreement with this conclusion. Said n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 contention on behalf of the Government of NCT of Delhi that the Lt. Governor is bound to act only on the aid and advice of the Council of Ministers is untenable and cannot be accepted. 161) The Constitution Bench judgment of this Court clarifies that in all those matters which do not fall within the discretionary jurisdiction of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39-AA(3) and which extends over all but three subjects in the State List and all subjects in the Concurrent List and, thus, Article 239-AA(4) confers executive power on the Council of Ministers over all those subjects for which the Delhi Legislative Assembly has legislative power. 218. Article 239-AA(3)(a) reserves Parliament's legislative power on all matters in the State List and Concurrent List, but clause (4) nowhere reserves the executive powers of the Union with respect to such matters. On the contrary, clause (4) explicitly grants to the Government of Delhi executive powers in relation to matters for which the Legislative Assembly has power to legislate. The legislative power is conferred upon the Assembly to enact whereas the policy of the legislation has to be given effect to by the executive for which the Government of Delhi has to have coextensive executive powers. Such a view is in consonance with the observation in Ram Jawaya Kapur [Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549] which has been discussed elaborately in the earlier part of the judgment. xx xx xx 232. From the foregoing discussion, it is clear that the words "any matter" occurring in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inion 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. In such circumstances, LG is supposed to refer the matter to the President for decision and act according to the decision given thereon by the President. It means that final say, in case of different between LG and Council of Ministers, is that of the President. Such a scheme of things clearly contemplates that the Counc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich will be a completely absurd legal position, particularly in light of the fact that subsequent to the 69 th Amendment, various powers of the State Government under the Cr.P.C., including appointment of public prosecutors, have been exercised by the elected government of NCT of Delhi. Referring to the impugned judgment, on this issue, it is pointed out that the High Court has held that the definition of Section 3(60) of the General Clauses Act, 1897 will apply to interpret the term "State Government" and it would thus be the Central Government, which would be the State Government. It is argued that this approach is wrong as the issue of appointment of public prosecutor relates to Criminal Procedure, i.e. Entry 2 of List II over which the Delhi Assembly and Executive exercise power, the Lt. Governor must act on the aid and advice of the Council of Ministers of the NCT of Delhi. It is contended that this convoluted method of reasoning was not necessary and the entire issue could be resolved if the Government of NCT of Delhi was held to be a State Government of NCT of Delhi by application of definition of State in Section 3(58) of General Clauses Act, 1897 to interpret State Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lative 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 Government has already made an appointment of a Public Prosecutor with respect to a case or a class of clases, the UT Government would not be competent to make a parallel appointment. 169) We find that in answering this question, the High Court has entered into the following discussion: "300. As could be seen, Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dministrator 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 which clearly holds that under various circumstances, the expression State Government would be relatable to GNCTD, notwithstanding the fact that it continues to be the Union Territory. The Constitution Bench judgment has also not accepted the opinion of the High Court insofar as it treats State Government as the Lieute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 2001, without obtaining the concurrence of the Lieutenant Governor are valid? 67) The fifth issue is common to Civil Appeal No. 2362 of 2017 filed by the GNCTD and Civil Appeal No. 2364 of 2017 filed by Union of India, wherein the issue is whether the Revenue Department of the GNCTD has the power to revise the minimum rates of Agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 Administrative Service and Indian Police Service personnel is common to Union Territories of Delhi, Chandigarh, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu, Dadra and Nagar Haveli, Puducherry and States of Arunachal Pradesh, Goa and Mizoram which is administered by the Central Government through the Ministry of Home Affair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions contained in the article 239AA of the Constitution." after paragraph 2 the following paragraph shall be inserted, namely:- "3. The Anti-Corruption Branch Police Station shall not take any cognizance of offences against Officers, employees and functionaries of the Central Government". 3. This Notification supersedes earlier Notification number S.O. 853(E) [F. No. U-11030/2/98- UTL] dated 24th September, 1998 except as respects things done or omitted to be done before such supersession. [F. No. 14036/04/2014-Delhi-I (Part File)] RAKESH SINGH, Jt. Secy." 5. The Government of India, Ministry of Home Affairs issued above notification on the premise that Entry 41 of List II which deals with "State public services; State Public Service Commission" is not available to the Legislative Assembly of the National Capital Territory of Delhi which has been expressly stated so in the notification. The Government of NCT of Delhi (hereinafter referred to as "GNCTD") aggrieved by the notification has filed Writ Petition (C)No.5888 of 2015 in Delhi High Court. The Delhi High Court vide its judgment dated 04.08.2016 has decided Writ Petition (C)No.5888 of 2015 along with other writ petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of this chapter other than Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion." 8. The expression "shall on receipt of the opinion dispose of the appeal in conformity with such opinion" occurring in proviso to Article 145 clause (3) obliges this Bench to dispose of the appeal in conformity with such opinion. We, thus, need to find as to what is the opinion of the Constitution Bench in accordance with which the appeal is to be disposed of. On first question as noted above, what is opinion of the Constitution Bench has to be ascertained to apply the same in deciding the appeal. 9. Shri Rakesh Dwivedi, learned senior counsel and Shri Maninder Singh, learned Additional Solicitor General(as he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us, have been placed before this Constitution Bench. At the outset, it was agreed between the learned counsel for the parties that this Constitution Bench may only answer the constitutional questions and the individual appeals thereafter will be decided by appropriate regular Benches." 13.The submissions which are being pressed before us by Shri Rakesh Dwivedi as well as Shri Maninder Singh were also pressed before the Constitution Bench, the specific submission was that the power of Legislative Assembly of Delhi on subject matter provided in List II and III of Seventh Schedule is limited by very same Article when it implies "in so far as any such matter is applicable to Union Territories". It is useful to notice that in paragraph 39 of the judgment of Justice Dipak Misra, C.J. (as he then was) following has been noticed: "39. The respondents also contend that although Article 239-AA confers on the Legislative Assembly of Delhi the power to legislate with respect to subject-matters provided in List II and List III of the Seventh Schedule, yet the said power is limited by the very same Article when it employs the phrase "insofar as any such matter is applicable to Union Territori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te List and the Concurrent List and at the same time, the Legislative Assembly of Delhi also has the legislative power with respect to matters enumerated in the State List and the Concurrent List except matters with respect to entries which have been explicitly excluded from Article 239-AA(3)(a)." 16.In the above paragraphs Constitution Bench held that the power of the Legislative Assembly to make laws of NCT of Delhi is with respect to matters enumerated in State List and the Concurrent List except in so far as matters with respect to and which relate to entries 1,2 and 18 of the State List. What is noticed in paragraph No. 217 is what is stated in general terms in Article 239AA(3)(a) of the Constitution. The Constitution Bench has not bestowed its consideration on the purpose and intent of expression "with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union Territory of Delhi". The reason is not far to seek. Individual issues which had arisen in different appeals were not touched by the Constitution Bench leaving it open to be decided by the regular Bench after constitutional questions are answe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dr.Justice D.Y. Chandrachud, the said submission has been considered in paragraph Nos. 461, 462 and 463 and following has been laid down: "461. Article 239-AA(3)(a) permits the Legislative Assembly of the NCT to legislate on matters in the State List, except for Entries 1, 2 and 18 (and Entries 64, 65 and 66 insofar as they relate to the earlier entries) and on the Concurrent List, "insofar as any such matter is applicable to Union Territories". In forming an understanding of these words of Article 239-AA(3)(a), it has to be noticed that since the decision in Kanniyan right through to the nine-Judge Bench decision in NDMC, it has been held that the expression "State" in Article 246 does not include a Union Territory. The expression "insofar as any such matter is applicable to Union Territories" cannot be construed to mean that the Legislative Assembly of NCT would have no power to legislate on any subject in the State or Concurrent Lists, merely by the use of the expression "State" in that particular entry. This is not a correct reading of the above words of Article 239-AA(3) (a). As we see below, that is not how Parliament has construed them as well. 462. Section 7(5) of the G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islative Assembly is circumscribed by the above expression. In Paragraph No. 316 of the Constitution Bench judgment, he has observed following:- "316. Clause (3) of Article 239-AA defines the legislative powers of the Legislative Assembly for the NCT. Sub-clause (a) empowers the Legislative Assembly for the NCT to enact law with respect to any of the matters contained in the State or Concurrent Lists of the Seventh Schedule to the Constitution. The ability of the Legislative Assembly is circumscribed "insofar as any such matter is applicable to Union Territories". The Legislative Assembly can hence enact legislation in regard to the entries in the State and Concurrent Lists to the extent to which they apply to a Union Territory. Of equal significance is the exception which has been carved out: Entries 1, 2 and 18 of the State List (and Entries 64, 65 and 66 insofar as they relate to Entries 1, 2 and 18) lie outside the legislative powers of the Legislative Assembly of NCT………………………………." 22.Dr. Justice D.Y. Chandrachud, thus, held that expression "State" is by itself not conclusive of whether a par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as no concept of Union Territories and there were only Part A, B, C and D States. After Seventh Constitutional Amendment, where First Schedule as well as Article 2 of the Constitution were amended which included mention of Union Territory both in Article 1 as well as in First Schedule. Thus, the above phrase was used to facilitate the automatic conferment of powers to make laws for Delhi on all matters including those relatable to the State List and Concurrent List except where an entry indicates that its applicability to the Union Territory is excluded by implication or any express constitutional provision." 24.In the above paragraphs the opinion is expressed that all matters including those relatable to the State List and Concurrent List are available to Legislative Assembly of Delhi except where an entry indicates that its applicability to the Union Territory is excluded by implication or by any express constitutional provision. The conclusion is, thus, that all entries of List II and List III are available to Legislative Assembly for exercising Legislative power except when an entry is excluded by implication or by any express provision. 25.The majority opinion delivered by J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far as any such matter is applicable in relation to Union Territories" is a known concept which was occurring in Section 18 of the Government of Union Territories Act, 1963 also. 29. For understanding the reasons and objects for circumscribing the Legislative powers of the Delhi Legislative Assembly by qualifying with the expression "insofar as any such matter is applicable in relation to Union Territories", we need to look into the Statement of Objects and Reasons of the Constitution 69th (Amendment) Act and other relevant materials throwing light on the object and purpose of 69th Constitutional amendment. 30. It is to be noted that for Reorganisation of the administrative set up of Union Territory of Delhi, the Government of India has appointed a Committee, namely, Balakrishnan Committee, which had submitted its report on 14.12.1989 to the Home Ministry. The Report of the Balakrishnan Committee was the basis for enacting 69th Constitution Amendment. In the Statement of Objects and Reasons of the 69th Constitution Amendment, the Report of Balakrishnan Committee has been specifically referred to and relied on. It is useful to notice the Statement of Objects and Reasons of Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jects and Reasons and the Balakrishnan Committee Report, the relevant extracts of which we have already reproduced in the earlier part of this judgment, serve as an enacting history and corpus of public knowledge relative to the introduction of Articles 239-AA and 239-AB and would be handy external aids for construing Article 239-AA and unearthing the real intention of Parliament while exercising its constituent power." 32.Balakrishnan's Committee Report in Para No. 6.7.4 has noted the limitation on the Legislative power of the Delhi Legislative Assembly because of the difference between the Constitutional Status of Union Territory and that of the State. Para No. 6.7.4 is to the following effect:- "6.7.4 As regards the Legislative Assembly to be created for Delhi. It should have full legislative power in relation to matters assigned to it. Subject to the specific exclusion of certain subjects set out in paragraphs 6.7.8 and 6.7.12 below, such powers should cover matters in the State List and the Concurrent List of the Constitution in so far as such matters are applicable in relation to Union territories. This last limitation is necessary because of the difference between the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion. 8.1.3 It is not, therefore, constitutionally possible to bring the subject matter of the services in the Union territory within the scope of the Legislative Assembly or the Council of Ministers of the proposed Delhi Administration. On the same reasoning it is not possible to provide for a separate Public Service Commission for a Union territory like Delhi because State Public Service Commission in Entry 41 aforesaid means only the body set up for the States." 35.Balakrishnan Committee Report further opined that services in connection with the administration of the Union Territory of Delhi will be part of the services of the Union even after the setting up of a Legislative Assembly with a Council of Ministers. Following was stated in Paragraph No. 9.3.4 on the heading "SERVICES":- "SERVICES 9.3.4 By virtue of the provisions in the Constitution, services in connection with the administration of the Union territory of Delhi will be part of the services of the Union even after the setting up of a Legislative Assembly with a Council of Ministers. This constitutional position is unexceptionable and should not be disturbed. There should, however, be adequate delegation of powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ritories 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 shall be Central Civil posts, Class II Group "B" (Gazetted) and those in Grades II, III and IV shall be Central Civil posts Group "C" (Non-Gazetted). (4) Members of the service shall, in the normal course be eligible for appointment to various Grades of the service to which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sense of constitution of a service. It is to be noted that fire service is a municipal function performed by local authority. Delhi Municipal Council Act, 1957 contains various provisions dealing with prevention of fire etc. Further fire services is a municipal function falling within the domain of municipalities, which has been recognised in the Constitution of India. Article 243(W) of the Constitution deals with functions of the municipalities in relation to matters listed in the 12th Schedule. Entry 7 of the 12th Schedule provides for "Fire Services" as one of the functions of the municipalities. The nature of the enactment and the provisions clearly indicate that Delhi Fire Services Act falls under Entry 5 of List II and not under Entry 41 of List II. 40.The distribution of Legislative powers of State and the Parliament is provided under Articles 245 and 246 of the Constitution. Article 246 which provides for subject-matter of laws made by Parliament and by the Legislatures of States provides as follows: "Article 246. Subject matter of laws made by Parliament and by the Legislatures of States.-(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive powe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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