TMI Blog2019 (2) TMI 1950X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 connotes different expression. There is a difference between the Legislative powers of the State and the Union Territories, which is apparent by use of different expressions in the Constitution. While inserting Article 239AA in the Constitution, the Parliament was well aware about the functioning of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erritories 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 concer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s: 5) At this juncture, we would like to state in brief the precise subject matter of these appeals: 6) As pointed out above, Civil Appeal No. 2357 of 2017 arises out of the common judgment dated August 04, 2016 passed by the High Court in a batch of writ petitions. In these writ petitions, number of notifications passed by the Government of India, or by the GNCTD were questioned by the writ petitioners. Some writ petitions were filed by GNCTD; one by Union of India and few others by some individuals. The orders and/or actions, validity whereof was questioned by the petitioners before the High Court is stated by the High Court in the impugned judgment itself in a tabulated form. It would be convenient to reproduce the same as that captures the essence of subject matter of dispute in each of the writ petition. 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 po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification dated 22.12.2015 issued by the Directorate of Vigilance, GNCTD under Commission of Inquiry Act, 1952 constituting the Commission of Inquiry without placing before the Lieutenant Governor for his views/concurrence. 9. W.P.(Crl.) No.2099/2015 GNCTD vs. Nitin Manawat Order passed by the Lt.Governor, NCT of Delhi under Section 24 of Cr.P.C. appointing a Special Public Prosecutor to conduct the trial in FIR No.21/2012 in the Special Court under PC Act 7) From the above, it can be discerned that following issues arise for consideration: (i) The powers of GNCTD vis-a-vis Lieutenant Governor in respect of matters connected with services . It may be mentioned, at this juncture itself that in Delhi there is no Public Service Commission. Since it is the Union Territory, the manpower/public servants which are assigned to Delhi are either those who belong to All India Services like Indian Administrative Service, Indian Police Service etc. or those who are recruited for Union Territories, commonly known as NCT of Delhi, Andaman Nicobar Islands, Lakshadweep, Daman D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Public Prosecutors in individual cases. Judgment of the Constitution Bench 8) Before we come to the grip of these issues it would be essential to discuss in brief the provisions of Article 239AA of the Constitution, as interpreted by the Constitution Bench judgment dated July 04, 2018 (hereinafter referred to as CB Judgment). 9) Relevant Articles of the Constitution, which need to be noted amongst others in this behalf, are Articles 239 and 239AA, which read as under : 239. Administration of Union territories.-(1) Save as otherwise provided by Parliament by law, every Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify. (2) Notwithstanding anything contained in Part VI, the President may appoint the Governor of a State as the administrator of an adjoining Union territory, and where a Governor is so appointed, he shall exercise his functions as such administrator independently of his Council of Ministers. 239-AA. Special provisions with respect to Delhi.-(1) As from the date of commencement of the Constitution (Sixty-ninth Amendmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ail and the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void: Provided that if any such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent, such law shall prevail in the National Capital Territory: Provided further that nothing in this sub-clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislative Assembly. (4) There shall be a Council of Ministers consisting of not more than ten per cent of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion: Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ools such as constitutional pragmatism having due regard for sanctity of objectivity, realisation of the purpose in truest sense by constantly reminding one and all about the sacrosanctity of democratic structure envisaged by our Constitution, elevation of the precepts of constitutional trust and morality, and the solemn idea of de-centralisation of power. This method of understanding is described in the judgment as confluence of the idea and spirit of the Constitution . The court also emphasised that interpretation of Article 239AA of the Constitution is not to be done in an exclusive compartment but in the context in which it has been introduced and also keeping in view the conceptual structure of the other relevant Articles of the Constitution. 11) In this process, the Court recapitulated brief history of Delhi from its inception as Capital of India in the year 1911 upto the stage of insertion of Article 239AA in the Constitution, which was the result of a detailed report submitted by Balakrishnan Committee. This narration in the judgment is as follows: 15. On 12-12-1911, Delhi became the capital of India. Delhi Tehsil and Mehrauli Thana were separated from Punjab and an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect to the control of the President of India and exercise such powers and discharge the functions of a State Government under the Commissions of Inquiry Act, 1952 within the Union Territories. In the year 1987, the Balakrishnan Committee was set up to submit its recommendations with regard to the status to be conferred on Delhi and the said Committee recommended that Delhi should continue to be a Union Territory but there must be a Legislative Assembly and Council of Ministers responsible to the said Assembly with appropriate powers; and to ensure stability, appropriate constitutional measures should be taken to confer the National Capital a special status. The relevant portion of the Balakrishnan Committee Report reads as follows: 6.5.5. In Paras 6.5.2. and 6.5.3. we have briefly summarised the arguments for and against making Delhi a constituent State of the Union. After the most careful consideration of all the arguments and on an 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 kno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the structure of the executive should be more or less on the pattern provided by the Constitution. Accordingly, there should be a Head of the Administration with a Council of Ministers answerable to the Legislative Assembly. As Delhi will continue to have the status of a Union Territory, Article 239 will apply to it and so it will have an Administrator with such designation as may be specified. The present designation of the Lieutenant Governor may be continued and recognised in the Constitution itself. xx xx xx 6.7.21. The Administrator should be expressly required to perform his functions on the aid and advice of the Council of Ministers. The expression to aid and advice is a well-understood term of art to denote the implications of the Cabinet system of Government adopted by our Constitution. Under this system, the general rule is that the exercise of executive functions by the Administrator has to be on the aid and advice of his Council of Ministers which means that it is virtually the Ministers that should take decisions on such matters. However, for Delhi, the following modifications of this general rule will have to be adopted: (i) Firstly, the requirement of ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ideals/principles of representative governance Constitutional morality Constitutional objectivity Constitutional governance and the conception of legitimate constitutional trust Collective responsibility Federal functionalism and democracy Collaborative federalism Pragmatic federalism Concept of federal balance Interpretation of the Constitution Purposive interpretation Constitutional culture and pragmatism 13) After discussing in detail the aforesaid tools necessarily required for proper and just interpretation of the concerned provisions, the Court undertook the exercise of interpreting Articles 239, 239A and 239AA of the Constitution. 14) Since, this interpretation is material and significant for deciding specific issues which have 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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the aid and advice of the Council of Ministers of the State of which he is the Governor. 179. In this regard, the Court, in the case of Shamsher Singh (supra), has observed thus:- 54. The provisions of the Constitution which expressly require the Governor to exercise his powers in his discretion are contained in Articles to which reference has been made. To illustrate, Article 239(2) states that where a Governor is appointed an Administrator of an adjoining Union Territory he shall exercise his functions as such Administrator independently of his Council of Ministers. 180. Again, the Court, while interpreting Article 239 in Union of India and others v. Surinder S. observed:- The unamended Article 239 envisaged 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... machal Pradesh was omitted from Article 239-A. Subsequently, on 21-1-1972, Tripura and Manipur were granted Statehood as a consequence of which both Manipur and Tripura were omitted from Article 239-A. 183. Likewise, with the enactment of the Goa, Daman and Diu Reorganisation Act, 1987 on 30-5-1987, both Goa and Daman and Diu were omitted from Article 239-A. Parliament, under the Government of Union Territories Act, 1963, created legislatures for the then Union Territories and accordingly, even after 30-5-1987, the applicability of Article 239-A stands limited to UT of Puducherry. 184. As a natural corollary, the Union Territory of Puducherry stands on a different footing from other UTs of Andaman and Nicobar Islands, Daman and Diu, Dadra and Nagar Haveli, Lakshadweep and Chandigarh. However, we may hasten to add that Puducherry cannot be compared with the NCT of Delhi as it is solely governed by the provisions of Article 239-A. P. Interpretation of Article 239-AA of the Constitution 185. We shall now advert to the interpretation of Articles 239-AA and 239-AB of the Constitution which are the gravamen of the present batch of appeals. The said Articles require an elaborate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislative Assembly with respect to any matter is repugnant to any provision of a law made by Parliament with respect to that matter, whether passed before or after the law made by the Legislative Assembly, or of an earlier law, other than a law made by the Legislative Assembly, then, in either case, the law made by Parliament, or, as the case may be, such earlier law, shall prevail and the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void: Provided that if any such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent, such law shall prevail in the National Capital Territory: Provided further that nothing in this sub-clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislative Assembly. (4) There shall be a Council of Ministers consisting of not more than ten per cent of the total number of Members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent so to do, the President may by order suspend the operation of any provision of Article 239-AA or of all or any of the provisions of any law made in pursuance of that Article for such period and subject to such conditions as may be specified in such law and make such incidental and consequential provisions as may appear to him to be necessary or expedient for administering the National Capital Territory in accordance with the provisions of Article 239 and Article 239-AA. (emphasis supplied) 186. We deem it appropriate to refer to the Statement of Objects and Reasons for the amendment which reads thus: 1. The question of reorganisation of the administrative set-up in the Union Territory of Delhi has been under the consideration of the Government for some time. The Government of India appointed on 24-12-1987 a Committee to go into the various issues connected with the administration of Delhi and to recommend measures inter alia for the streamlining of the administrative set-up. The Committee went into the matter in great detail and considered the issues after holding discussions with various individuals, associations, political parties and other experts and taking into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrator stipulated under the Union Territories Act, 1963 is similar to those of a Governor of a State and as such, whether the Administrator has to act on the aid and advice of the Council of Ministers. The Court considered the relevant provisions and after comparing the language of Articles 74 and 163 of the Constitution with the language of Section 44 of the Union Territories Act, 1963, it observed that the Administrator, even in matters where he is not required to act in his discretion under the Act or where he is not exercising any judicial or quasi-judicial functions, is not bound to act according to the advice of the Council of Ministers and the same is manifest from the proviso to Section 44(1). The Court went on to say: (SCC pp. 229-30, paras 14-15) 14. It transpires from the proviso that in the event of a difference of opinion between the Administrator and his Ministers on any matter, the Administrator shall refer the matter to the President for decision and act according to the decision given thereon by the President. If the President in a given situation agrees with what the Administrator opines contrary to the advice of the Council of Ministers, the Administrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Constitution. 200. As far as the Lieutenant Governor of Delhi is concerned, as per Article 239-AA(4), he is bound by the aid and advice of his Council of Ministers in matters for which the Delhi Legislative Assembly has legislative powers. However, this is subject to the proviso contained in clause (4) of Article 239-AA which gives the power to the Lieutenant Governor that in case of any difference between him and his Ministers, he shall refer the same to the President for a binding decision. This proviso to clause (4) has retained the powers for the Union even over matters falling within the legislative domain of the Delhi Assembly. This overriding power of the Union to legislate qua other Union Territories is exposited under Article 246(4). 17) The Court, thereafter, specifically focused on the executive power of the Council of Ministers of Delhi and made following remarks on this particular aspect: 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 env ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing accountable to the voters of Delhi, must have the appropriate powers so as to perform their functions effectively and efficiently. This is also discernible from the Balakrishnan Committee Report which recommended that though Delhi should continue to be a Union Territory, yet it should be provided with a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concern to the common man. 217. Sub-clause (a) of clause (3) of Article 239-AA establishes the power of the Delhi Legislative Assembly to enact laws for NCT of Delhi with respect to matters enumerated in the State List and/or Concurrent List except insofar as matters with respect to and which relate to Entries 1, 2 and 18 of the State List. 218. Sub-clause (b) of clause (3) lays down that Parliament has the powers to make laws with respect to any matter for a Union Territory including NCT of Delhi or any part thereof and sub-clause (a) shall not derogate such powers of Parliament. Sub-clause (c) of clause (3) gives Parliament the overriding power to the effect that where any provision of any law made by the Legislative Assembly of Delhi is repugnant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State List and Concurrent List, but clause (4) nowhere reserves the executive powers of the Union with respect to such matters. On the contrary, clause (4) explicitly grants to the Government of Delhi executive powers in relation to matters for which the Legislative Assembly has power to legislate. The legislative power is conferred upon the Assembly to enact whereas the policy of the legislation has to be given effect to by the executive for which the Government of Delhi has to have coextensive executive powers. Such a view is in consonance with the observation in Ram Jawaya Kapur [Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549] which has been discussed elaborately in the earlier part of the judgment. 224. Article 239-AA(4) confers executive powers on the Government of NCT of Delhi whereas the executive power of the Union stems from Article 73 and is coextensive with Parliament's legislative power. Further, the ideas of pragmatic federalism and collaborative federalism will fall to the ground if we 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n his discretion.-(1) The Lieutenant Governor shall act in his discretion in a matter- (i) which falls outside the purview of the powers conferred on the Legislative Assembly but in respect of which powers or functions are entrusted or delegated to him by the President; or (ii) in which he is required by or under any law to act in his discretion or to exercise any judicial or quasi-judicial functions. (2) If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is by or under any law required to act in his discretion, the decision of the Lieutenant Governor thereon shall be final. (3) If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor is required by any law to exercise any judicial or quasi-judicial functions, the decision of the Lieutenant Governor thereon shall be final. 245. A careful perusal of Section 41 of the 1991 Act shows that the Lieutenant Governor can act in his discretion only in matters which fall outside the legislative competence of the Legislative Assembly of Delhi or in respect of matters of which powers are entrusted or delegated to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representatives being accountable to the public must be accessible, approachable and act in a transparent manner. Thus, the elected representatives must display constitutional objectivity as a standard of representative governance which neither tolerates ideological fragmentation nor encourages any utopian fantasy, rather it lays stress on constitutional ideologies. 284.3. Constitutional morality, appositely understood, means the morality that has inherent elements in the constitutional norms and the conscience of the Constitution. Any act to garner justification must possess the potentiality to be in harmony with the constitutional impulse. In order to realise our constitutional vision, it is indispensable that all citizens and high functionaries in particular inculcate a spirit of constitutional morality which negates the idea of concentration of power in the hands of a few. 284.4. All the three organs of the State must remain true to the Constitution by upholding the trust reposed by the Constitution in them. The decisions taken by constitutional functionaries and the process by which such decisions are taken must have normative reasonability and acceptability. Such decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Government with respect to matters which exclusively fall within their domain. 284.10. There is no dearth of authorities with regard to the method and approach to be embraced by constitutional courts while interpreting the constitutional provisions. Some lay more emphasis on one approach over the other, while some emphasise that a mixed balance resulting in a unique methodology shall serve as the best tool. In spite of diverse views on the said concept, what must be kept primarily in mind is that the Constitution is a dynamic and heterogeneous instrument, the interpretation of which requires consideration of several factors which must be given their due weightage in order to come up with a solution harmonious with the purpose with which the different provisions were introduced by the Framers of the Constitution or Parliament. 284.11. In the light of the contemporary issues, the purposive method has gained importance over the literal approach and the constitutional courts, with the vision to realise the true and ultimate purpose of the Constitution not only in letter but also in spirit and armed with the tools of ingenuity and creativity, must not shy away from performing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of certain subjects falling in the State List or the Concurrent List, the executive action of the State must conform to the law made by Parliament. 284.16. As a natural corollary, the Union of India has exclusive executive power with respect to NCT of Delhi relating to the three matters in the State List in respect of which the power of the Delhi Legislative Assembly has been excluded. In respect of other matters, the executive power is to be exercised by the Government of NCT of Delhi. This, however, is subject to the proviso to Article 239-AA(4) of the Constitution. Such an interpretation would be in consonance with the concepts of pragmatic federalism and federal balance by giving the Government of NCT of Delhi some required degree of independence subject to the limitations imposed by the Constitution. 284.17. The meaning of aid and advise employed in Article 239-AA(4) has to be construed to mean that the Lieutenant Governor of NCT of Delhi is bound by the aid and advice of the Council of Ministers and this position holds true so long as the Lieutenant Governor does not exercise his power under the proviso to clause (4) of Article 239-AA. The Lieutenant Governor h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded to the Lieutenant Governor , submitted to the Lieutenant Governor and cause to be furnished to the Lieutenant Governor employed in the said Rules leads to the only possible conclusion that the decisions of the Council of Ministers must be communicated to the Lieutenant Governor but this does not mean that the concurrence of the Lieutenant Governor is required. The said communication is imperative so as to keep him apprised in order to enable him to exercise the power conferred upon him under Article 239-AA(4) and the proviso thereof. 284.22. The authorities in power should constantly remind themselves that they are constitutional functionaries and they have the responsibility to ensure that the fundamental purpose of administration is the welfare of the people in an ethical manner. There is requirement of discussion and deliberation. The fine nuances are to be dwelled upon with mutual respect. Neither of the authorities should feel that they have been lionised. They should feel that they are serving the constitutional norms, values and concepts. 284.23. Fulfilment of constitutional idealism ostracising anything that is not permissible by the language of the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he State List insofar as these Entries related to the said Entries 1, 2 and 18. The CB judgment specifically addressed the issue of the executive power of the GNCTD, viz., whether it is co-extensive with the legislative power. To that extent, the principle of such co-extensive executive power, which is recognised for the Union/Central Government as well as State Governments, has been accepted in the case of GNCTD as well. Thus, in this hue, the Constitution Bench has also accepted that the Lieutenant Governor is to act on the aid and advice of the Council of Ministers in all his acts, except those functions where the Lieutenant Governor is permitted to exercise his own discretion. 23) Since this executive power is co-extensive with legislate power, the appellants emphasised before us that the Constitution Bench has categorically held that this power extends over all the subjects except three subjects in the State List, i.e., Entries 1, 2 and 18. The executive power also extends to all subjects in the Concurrent List. The appellants also submitted that this executive power is to the exclusion of the executive power of the Union with respect to such matters, meaning thereby such p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... II of the 7th Schedule of the constitution of India (except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List insofar as they relate to the said Entries a, 2 and 18). This claim was founded on its basic contention that since there is an elected Council of Ministers in NCT Delhi, it should be treated as equivalent to a State. It was in support of this contention raised by GNCTD that the prayer for non-applicability of Article 239 in the case of NCT Delhi had also been made. 29) On the other hand, on behalf of the Union of India, it had been contended before this Court that the Scheme in the Constitution of India envisages at the threshold vestige of executive power in the President of India under Article 53 of the Constitution of India to be exercised by the President on the aid and advice of the Union Council of Ministers. It is only after the vestige of the executive power takes place under Article 53 of the Constitution of India that the subsequent provisions of Article 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in List I, the Union Government shall have the Exclusive Executive Jurisdiction co-extensive with the legislative power and would be able to exercise the said executive power without framing any legislation. Similarly, the State shall have executive power in relation to subjects in List II and List III of the Constitution of India. (iii) However, once the Parliament and/or any State Legislature frames 3 AIR 1995 SC 549 any legislation, the executive power of the respective governments shall be strictly in accordance with the provisions of any said legislation. [Para 12 of the judgment in Ram Jawaya Kapur] 32) The above-mentioned third proposition as has been held by this Court in Ram Jawaya Kapur s judgment, has been reiterated in various subsequent judgments of this Court including in the judgment of the Constitution Bench of this court in the present case on July 04, 2018 where the following dictum had been incorporated:- ..277 .(xv) ..However, if the Parliament makes law in respect of certain subjects falling in the State List or the Concurrent List, the executive action of the State must conform to the law made by the Parliament . 33) The respondents point o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any such matter is applicable in relation to Union Territories. (2) Nothing in sub-section (1) shall derogate from the powers conferred on Parliament by the Constitution to make laws with respect to any matter for the Union Territory or any part thereof. Sub-section (1) of Section 18 was similar in language to Article 239-AA(3)(a), without the exclusion of matters relating to Entries 1, 2 and 18 and Entries 64, 65 and 66. Sub-section (2) was similar in language to Article 239-AA(3)(b). Section 21 provided that if there was any inconsistency between a law made by Parliament and a law made by the Legislative Assembly, the law made by Parliament would prevail to the extent of repugnancy [this provision is similar in nature to Article 239-AA(3)(c)]. 453. The judgment of the majority also holds that all Union Territories are not situated alike. The first category consists of Union Territories which have no legislature at all. The second category has legislatures created by a law enacted by Parliament under the Government of Union Territories Act, 1963. The third category is Delhi which has special features under Article 239-AA. Though the Union Territory of Delhi is in a class by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution-makers, which makes it clear that Article 239 is also applicable to NCTD. 34) From the above, contention raised is that the necessary and inevitable position which emerges is that when in paragraph 217, 218 and 219, the majority judgment, acknowledged the exclusive Executive jurisdiction of the Union Government in relation to Entries 1, 2 and 18 of List II (and Entries 64, 65 and 66 of that List insofar as they relate to the said Entries 1,2 and 18) of the Seventh Schedule, this Court did not and could not have held that exclusive executive jurisdiction vests with the Government of NCT of Delhi in relation to all other entries in List II of the Seventh Schedule. 35) On the contrary, argued the appellants, this Court has held the existence and vestige of non-exclusive Executive Jurisdiction in relation to the remaining entries of List II that of List III for NCTD, since this court has categorically held that NCTD is a Union Territory and not a State, Article 239 continues to apply in relation to NCTD and further the same principle of Ram Jawaya Kapur of co-extensive executive power with the legislative power of any Government also applies to the Union government i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies in List II (except matters with respect to Entries 1,2 and 18 of the State List and Entries 64,65 and 66 of that List insofar as they relate to the said Entries 1,2 and 18) of the Seventh Schedule. Such a contention would lead to an anomalous reading of the judgment dated July 04, 2018 passed by the Constitution Bench of this court and would deserve rejection by this Court. 38) It is further submitted that the intention of Parliament to confer overriding executive powers to the Central Government is evident from the provisions of Section 49 of the 1991 Act which empowers the President to exercise general control and to issue directions to the Lieutenant Governor and his Council of Ministers. Section 52 stipulates that all contracts relating to the administration of the Capital are made in exercise of the executive power of the Union and suits and proceedings in connection with the administration can be instituted by or against the Union Government. Reliance is placed on paras 86 ad 87 of the opinion authored by Justice D.Y., Chandrachud, which are as under: 86. Section 49 establishes the principle of the general control of the President over the Lieutenant Governor and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business. They would include the procedure to be followed where there is a difference of opinion between the Lieutenant Governor and the Council of Ministers. Section 49, which has a non obstante provision, subjects the Lieutenant Governor and the Council of Ministers to the general control of the President and to such directions as may be issued from time to time. 39) Reference is also made to Articles 239AB and 356 of the Constitution of India. 239AB. Provision in case of failure of constitutional machinery. If the President, on receipt of a report from the Lieutenant Governor or otherwise, is satisfied- (a) that a situation has arisen in which the administration of the National Capital Territory cannot be carried on in accordance with the provisions of article 239AA or of any law made in pursuance of that article; or (b) that for the proper administration of the National Capital Territory it is necessary or expedient so to do, the President may by order suspend the operation of any provision of article 239AA or of all or any of the provisions of any law made in pursuance of that article for such period and subject to such conditions as may be specified in su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi, there is no need to assume/take it back by the President. Further, Article 239AB provides that in the case of NCT of Delhi the President can suspend the operation of Article 239AA even in a case where the President [i.e. the Union Executive] is satisfied that it is necessary to do so for proper administration of NCTD. 41) In nutshell, submission on behalf of the Union of India is that when the judgment dated July 04, 2018 passed by the Constitution Bench comprising three separate opinions is read as a whole in the manner projected above and there is a harmonization of the three opinions to discern the law which has been laid down by this Court the legal position projected by the respondents gets strengthened. As per the appellant, such a reading of the judgment dated July 04, 2018 would also be in consonance with the observation made in para 144 of the opinion authored by Justice D.Y. Chandrachud, wherein it has been observed that there is a broad coalescence ( coming together to form one mass or whole; process of merger of two or more droplets of particles to become one single droplet ) between the view expressed in the three opinions in the said judgment dated 04.07.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Entries in the Concurrent List, i.e. List III. Such a power is exclusive which belongs to GNCTD to the exclusion of the Central government. Specific reference was made to the discussion contained in paragraphs 217 to 219 as well as Conclusions (xv), (xvi) and (xvii) of the majority opinion. Attention was also drawn to the discussions contained in paragraphs 174 to 176, 187 and 239 of the said judgment, which have already been reproduced above. 45) Expanding the proposition that the Constitution Bench has already held that apart from the three explicitly excluded Entries (i.e. Entries 1, 2 and 18 in List II), the Delhi Assembly and GNCTD have legislative and executive powers over all other Entries in List II and III, it was argued that specific contention of the Union of India to the contrary was clearly repelled by the Constitution Bench. Submission in this behalf was that the majority judgment clearly records the submission of the Central Government in para 38 which reads as under: 38. The respondents also contend that although Article 239AA confers on the Legislative Assembly of Delhi the power to legislate with respect to subject matters provided in List II and List ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubjects in the State List and all subjects in the Concurrent List . (d) To the similar effect are the observation in Para 219 where the Court observed that Executive Power of the Union in respect of NCT of Delhi is confined to the three matters in the State List for which the Legislative Power of the Delhi Legislative Assembly has been excluded under Article 239AA(3)(a) . (e) This is again reiterated in the conclusions contained in Para 277 (xiv), (xv) and (xvi) as under: (xiv) The Legislative Assembly of Delhi also has the power to make laws over all those subjects which figure in the concurrent list and all but three excluded subjects, in the State List (xv) The executive power of the Council of Ministers of Delhi spans over all subjects in the Concurrent List and all, but three excluded subjects, in the State list . (xvi) The Union of India has exclusive executive power with respect to the NCT of Delhi relating to the three matters in the State List in respect of which the power of the Delhi Legislative Assembly has been excluded. 48) This submission was sought to be supported from the concurring judgment of Justice Chandrachud (by referring to paras 127 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the solemn duty of the constitutional courts as final arbiters of the Constitution... (Emphasis Supplied) 50) Thereafter, in para 15, some portions of the Balakrishnan Committee are extracted. Then, in para 36, the Court notes the argument of the Union of India seeking literal/textual interpretation and reliance on Balakrishnan Report. Similar reliance on Balakrishnan Report by the Union of India is noted in para 47. Thereafter, the Constitution Bench from Page 45 to Page 135 has discussed the principles of constitutional interpretation that will be used to interpret Article 239AA. 51) In the light of those principles, the Court thereafter has interpreted Article 239AA and its various provisions. Insofar as Balakrishnan Committee Report is concerned, it is not accepted as interpretative tool, as is clear from the following discussion: 270. There can be no quarrel about the proposition that the reports of the Committee enacting a legislation can serve as an external aid for construing or understanding the statute. However, in the instant case, as we have elaborately dealt with the meaning to be conferred on the constitutional provision that calls for interpretati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... creates and recognises such a status. This status is to accord Legislative Assembly in NCTD with certain powers that are also rcognised in the same provision. The nature of Legislative Assembly is enumerated in clause (2)(a) of Article 239AA as per which seats in the Assembly are to be filled by the Members chosen by direction election. In this manner, even when NCTD remains a Union Territory, it is given a different status than other Union Territories in respect of which provisions of Article 239 apply. It is also different from the status given to Puducherry, another Union Territory which is governed by Article 239A of the Constitution. Even for the Union Territory of Puducherry, provision is made for creation of Legislative Assembly. Such a power is given to the Parliament to enact this kind of law. In exercise of that power, the Parliament has enacted an Act which creates a Legislative Assembly which is partly elected and partly nominated. In contrast, conferment of status upon NCTD is by the Constitution itself and is not left to the Parliament. At the same time, NCTD remains a Union Territory and is not elevated to the status of a State governed by Part VI of the Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of repugnancy if it arises between the law made by the Parliament and the Legislative Assembly of NCTD. In that event, the law made by Parliament shall prevail and the law made by Delhi Legislative Assembly, shall, to the extent of repugnancy, be void. First proviso to sub-clause (c), however, saves law made by the Legislative Assembly of Delhi if law made by it has been reserved for the consideration of President and has received his assent. In that event, such law made by the Legislative Assembly of Delhi shall prevail in NCTD. Notwithstanding, second proviso thereto recognises the supremacy of the Parliament by giving it power to enact law with respect to same subject matter as the law made by the Delhi Legislative Assembly and it includes power to make law adding to, amending, varying or even repealing the law made by the Legislative Assembly. 57) As mentioned earlier, insofar as this power of Parliament to make laws in respect of NCTD is concerned, there is no quarrel. In this conspectus, we have to find as to whether the CB Judgment held that insofar as the executive power of GNCTD is concerned, it is to the exclusion of the Centre, or, as contended by the learned senior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder List II (except the excluded entries) and it is the GNCTD, which shall enjoy exclusive executive powers. We are of the view that the above interpretation as put up by the appellant on constitutional provisions cannot be accepted. The principle is well established that executive powers coexist with the legislative powers. Reference to Article 73 has been made in this context, which need to be noted.Article 73 provides as follows: 73. Extent of executive power of the Union.-(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend- (a) to the matters with respect to which Parliament has power to make laws; and (b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement: Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the legislature of the State has also power to make laws. (2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwiths ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cutive actions which are mentioned in List II. When the President, as provided by the constitutional scheme, is entitled to take executive decision on any matter irrespective of the fact whether such executive decision taken by the Council of Ministers or Ministers related to matters covered by List II and List III, the executive power to Union through President cannot be confined to List II. Overriding power to the Union even on the executive matters has to be conceded to be there as per constitutional scheme. It is another matter that for exercise of executive powers by the Union through the President and by the Council of Ministers, headed by the Chief Minister of NCTD, the Constitution itself indicates a scheme which advances the constitutional objectives and provide a mechanism for exercise of executive powers, which aspect shall be, however, further elaborated while considering clause (4) of Article 239-AA. Legislative power of the Union is coextensive with its executive power in relation to NCT is further indicated by the provisions of the Government of National Capital Territory of Delhi Act, 1991. The insertion of Article 239-AA by the Constitution Sixty-ninth Amendment ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly of Delhi is concerned, that has been recognised, which is in conformity with the other two opinions, the aspect of executive power of the Delhi Government has not been elaborated. Instead, there is a detailed discussion on the construction of the proviso to Article 239AA(4). As we have seen, clause (4) deals with the executive power of the Council of Ministers of GNCTD. Proviso thereto deals with the situation where there would be a difference of opinion between the Lieutenant Governor and his Ministers on any matter. It provides that in such an eventuality the Lieutenant Governor is supposed to refer the matter to the President for decision and act according to the decision given thereon by the President. It gives supremacy to the President in the matter of executive decisions. Chandrachud, J. has noted that NCTD continues to be a Union Territory and the Union Government has a special interest in the administration of its affairs, which stands exemplified by the provisions of Article 239 and Section 49 of the GNCTD Act. Therefore, the provision to Article 239AA(4) must be given an interpretation which is marked with a sense of fine constitutional balance. The balance which is d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnancy mentioned in Article 254 of the Constitution are discussed. Discussion thereafter would be of some relevance and is, therefore, reproduced below, verbatim: 138...The principle of repugnancy which Article 254 recognises between the Union and State legislation on matters in the Concurrent List is extended by Article 239-AA [(3)(b) and (3)(c)], both with reference to State and Concurrent List subjects for NCT. Moreover, certain subjects have been expressly carved out from the ambit of the legislative authority of the Legislative Assembly and vested exclusively in Parliament. Executive powers of the Government of NCT being coextensive with legislative powers, the aid and advice which is tendered to the Lieutenant Governor by the Council of Ministers is confined to those areas which do not lie outside the purview of legislative powers. These provisions demonstrate that while adopting the institutions of a Cabinet form of Government, the Constitution has, for NCT, curtailed the ambit of the legislative and executive powers, consistent with its status as a Union Territory. 139. The exercise of the constituent power to introduce Article 239-AA was cognizant of the necessity t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying the conferment of such a power, and second, the exercise of the power under the proviso must not destroy the essential democratic values recognised in Article 239-AA. Thus, it is necessary to lay down the steps which need to be adopted before recourse is taken to the proviso. The Transaction of Business Rules indicate in sufficiently elaborate terms that when there is a difference of opinion between the Lieutenant Governor and a Minister, primarily, an effort should be made to resolve it by mutual discussion. If this process does not yield a satisfactory result, the matter can be referred to the Council of Ministers with whom an attempt is made to seek a satisfactory solution. It is when these two stages are crossed and a difference still persists that the proviso can be taken recourse to by referring the matter to the President. These stages which are enunciated in the Transaction of Business Rules must be read in conjunction with the authority conferred by Section 44 of the GNCTD Act which was enacted in pursuance of Article 239-AA(7). Hence the proviso must be read in conjunction with the law enacted by Parliament and the Transaction of Business Rules made by the President, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat unrestrained recourse to the proviso would virtually transfer the administration of the affairs of the NCT from its Government to the Centre. If the expression any matter were to be read so broadly as to comprehend every matter , the operation of the proviso would transfer decision-making away from the Government of the NCT to the Centre. If the proviso were to be so read, it would result in a situation where the President would deal with a reference on every matter, leaving nothing but the husk to the administration of the Union Territory. Article 239-AB makes a provision where there is a failure of the constitutional machinery in the Union Territory. The proviso to Article 239-AA(4) does not deal with that situation. Hence, in the application of the proviso it would be necessary to bear in mind that the Council of Ministers for the NCT has a constitutionally recognised function, as does the Legislative Assembly to whom the Council is collectively responsible. The role of the Lieutenant Governor is not to supplant this constitutional structure but to make it workable in order to ensure that concerns of a national character which have an innate bearing on the status of Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals have been filed by the GNCTD and remaining two have been filed by the Union of India. Eight out of these nine appeals are Civil Appeals and one appeal filed by the Union of India is a Criminal Appeal. All the appeals are against the impugned order of the High Court of Delhi dated August 04, 2016. The issues which are raised in different appeals are summed up below: 64) The first issue is whether the exclusion of Services relatable to Entry 41 of List II of the Seventh Schedule from the legislative and executive domain of the NCT of Delhi, vide Notification of the Government of India dated May 21, 2015, is unconstitutional and illegal? 65) The second issue is whether the exclusion of the jurisdiction of the Anti-Corruption Branch (ACB) of the NCT of Delhi to investigate offences committed under the Prevention of Corruption Act, 1987 by the officials of Central Government and limiting the jurisdiction of the ACB to the employees of GNCTD alone is legal? (These two issues arise in Civil Appeal No. 2357 of 2017). 66) The third issue is raised in Civil Appeal Nos. 2358, 2359 and 2360 of 2017. In all these three appeals, the common issue is whether the GNCTD is an App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 41 rests with GNCTD. Mr. Chidambaram argued that Entry 41 has two components, namely, State public service and State Public Service Commission. Since there is no State Public Service Commission in Delhi, insofar as service personnel in Delhi are concerned, that would come within the expression State public services and it is the GNCTD which would exercise its administrative power over such employees. 73) Learned counsel drew attention of this Court to the earlier Notification dated September 24, 1998 and submitted that the said Notification was perfectly in order. We reproduce the same hereunder: MINISTRY OF HOME AFFAIRS NOTIFICATION New Delhi, the 24th September, 1998 S.O. 853 (E). In pursuance of the powers conferred under clause (1) of article 239 of the Constitution, the President hereby directs that subject to his control and until further orders, the Lieutenant Governor of the National Capital Territory of Delhi, shall in respect of matters connected with Public Order , Police and Services exercise the powers and discharge the functions of the Central Government, to the extent delegated from time to time to him by the President, in consultation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommon to Union Territories of Delhi, Chandigarh, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu, Dadra and Nagar Haveli, Puducherry and States of Arunachal Pradesh, Goa and Mizoram which is administered by the Central Government through the Ministry of Home Affairs; and similarly DANICS and DANIPS are common services catering to the requirement of the Union Territories of Daman Diu, Dadra Nagar Haveli, Andaman and Nicobar Islands, Lakshadweep including the National Capital Territory of Delhi which is also administered by the Central Government through the Ministry of Home Affairs. As such, it is clear that the National Capital Territory of Delhi does not have its own State Public Services. Thus, Services will fall within this category. And whereas it is well established that where there is no legislative power, there is no executive power since executive power is co-extensive with legislative power. And whereas matters relating to Entries 1, 2 18 of the State List being Public Order , Police and Land respectively and Entries 64, 65 66 of that list in so far as they relate to Entries 1, 2 18 as also Services fall outside the purview of Legislative Assemb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by the Central Government through the Ministry of Home Affairs. The Notification also refers to DANICS and DANIPS, which are again common services catering to the requirement of various Union Territories, including NCTD. These services are also administered by the Central Government through the Ministry of Home Affairs. As is clear from the aforesaid Notification, the aforesaid reasons are given therein thereby making these services subject to the control and further orders of the Lieutenant Governor of NCTD. 75) Submission of Mr. Chidambaram, however, is that being common cadres, which apply to all Union Territories, undoubtedly, the Central Government has the power to allocate the personnel to NCTD as well. Likewise, it is also within the powers of the Central Government to transfer such personnel from one Union Territory to other, which would mean even from NCTD to any other Union Territory. According to him, that was the only function of the Joint Cadre Authority under the All India Services (Joint Cadre) Rules, 1972 inasmuch as Rule 5(1) therein stipulates to: determine the names of the members of All India Services who may be required to serve from time to time in con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xx xx xx 11A. Authority to exercise certain powers in respect of members of the Service serving in connection with the affairs of the States constituting a Joint Cadre:- the powers of the State Government under the second proviso to sub-rule (2) of rule 4, under clause (I) of sub-rule (2) of rule 6 and under Rules 7, 10 and 11, in relation to the members of the Service serving in connection with the affairs of any of the Constituent States shall be exercised by the Government of that State. Submission was that as per the aforesaid Rules, posting is done by the State Government once the Central Government allocates particular employees to a particular State and since this principle of federalism is accepted and given imprimatur by the Constitution Bench in case of NCTD as well, the aforesaid principle shall equally apply. 76) As per him, the complete scheme which becomes clear from the above is that while it is the Joint Cadre Authority where Delhi has its own separate representative which allocates officers of the AGMUT Cadre to NCT of Delhi, the post to which such officer is posted/deputed is determined by the GNCTD. Consequently, if within the GNCTD, the said offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other All India Services or combined/joint cadre of Union Territories which are not State public services. He also argued that certain matters fall within the discretionary powers of the Lieutenant Governor where he does not have to act on the aid and advise of the Council of Ministers of GNCTD. This was such a discretionary matter and, therefore, fell outside NCTD. In the alternative, he submitted that even if the Lieutenant Governor has no discretion, since the subject matter is not covered by Entry 41 of List II, the Lieutenant Governor is not supposed to act on the aid and advise of the Central Government and not that of GNCTD. Focusing on the aspect of discretionary power of the Lieutenant Governor, Mr. Sundaram referred to Section 41 of the GNCTD Act which stipulates the matters wherein the Lieutenant Governor can act in his own discretion. This provision reads as under: 41. Matters in which Lieutenant Governor to act in his discretion: (1) The Lieutenant Governor shall act in his discretion in a matter:- (i) which falls outside the purview of the powers conferred on the legislative Assembly but in respect of which powers or functions are entrusted or delegated to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducted by the Chief Secretary or Secretary of the Department concerned under the direction of the Lieutenant Governor. 81) Insofar as Notification dated September 24, 1998 is concerned, Mr. Sundaram pointed out that this Notification was issued under Article 239 of the Constitution. In any case, this was also issued by the President and was almost to the same effect as Notification dated May 21, 2015, inasmuch as here also the President had delegated the powers to the Lieutenant Governor in respect of Public order , Police as well as Services . Therefore, all these subjects were put at par. The only other requirement specified in the said Notification was that the Lieutenant Governor was to exercise the powers and discharge the functions of the Central Government in consultation with the Chief Minister of the NCTD . It was only a consultation which would not mean concurrence . The Notification dated May 21, 2015 brought about change only in respect of such consultative process, i.e. consultation with the Chief Minister, as being done away with. This became necessitated, according to him, because of the problems which the Lieutenant Governor was facing even in undertak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 83) In rejoinder, Mr. Chidambaram submitted that the aforesaid argument of the Union ignores the judgment of this Court in Union of India v. Prem Kumar Jain and Others (1976) 3 SCC 743 wherein a four Judge Bench of this Court held that the State includes a Union Territory for the purposes of Article 312 of the Constitution in the following manner: 8. It follows therefore that, as and from November 1, 1956, when the Constitution (Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adre which is common of all Union Territory and Delhi is one of them. Therefore the Cadre does not pertain to GNCTD itself. This cadre is administered by the Central Government through Ministry of Home Affairs. (c) There is no dispute that insofar as allocation of personnel belonging to the aforesaid services is concerned, it is the Central Government thorough Ministry of Home Affairs which has to pass the necessary orders. Similarly, Central Government is empowered to transfer such personnel from one Union Territory to other. 85) The fulcrum of dispute pertains to the control of GNCTD over these personnel after they are allocated to the NCTD. As per GNCTD, it has the power to post such work force at different places and the LG is to act on the aid and advice of the Council of Ministers. For this purpose, the executive power is sought to be drawn by virtue of Entry 41 of List II in the Seventh Schedule of the Constitution. The submission on behalf of the Union of India is that it comes within the discretionary powers of the LG as the subject matter is not covered by Entry 41 of List II and, therefore, by virtue of Section 41 of GNCTD Act, the LG is empowered to act in his dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smooth functioning of the system, it is necessary to carve out a just and fair mechanism. Therefore, we are inclined to accept the suggestion of Mr. Sundaram in this behalf as recorded above. In this behalf, we reiterate the position as under: 90) The transfers and postings of Secretaries, HODs and other officers in the scale of Joint Secretary to the Government of India and above can be done by the Lieutenant Governor and the file submitted to him directly. For other levels, including DANICS officers, the files can be routed through the Chief Minister to Lieutenant Governor. In case of difference of opinion between the Lieutenant Governor and the Chief Minister, the view of the Lieutenant Governor should prevail and the Ministry of Home Affairs can issue a suitable notification in this regard. However, for Grade IV, III, II and I DASS officials, there is an existing delegation of powers where for Grades IV and III, all transfers and postings are done by the Secretary (Services); for Grades II and I, the transfers and postings are done by the Chief Secretary. For greater transparency, a Civil Services Board can be formed which can be headed by the Secretary (Services) for Grade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnor declared the ACB of NCTD at Old Secretariat as a police station under Section 2(s) of the Cr.P.C. for offences under the Prevention of Corruption Act, 1988. Thereafter, two Notifications dated July 23, 2014 and May 21, 2015 came to be issued by the Central Government as per which the jurisdiction of ACB is limited to the employees of GNCTD only. These Notifications read as under: Notification dated July 23, 2014 THE GAZETTE OF INDIA EXTRAORDINARY PART II SECTION 3 SUB SECTION (II) PUBLISHED BY AUTHORITY NEW DELHI, FRIDAY, JULY 25, 2014/SHRAVANA 3, 1936 MINISTRY OF HOME AFFAIRS NOTIFICATION New Delhi, the 23rd July, 2014 S.O. 1896(E) In pursuance of Section 21 of the General Clauses Act, 1897 (10 of 1897) read with the Government of India, Ministry of Home Affairs Notification Number S.O. 183(E), dated the 20th March, 1974 and having regard to the guidelines issued by the Central Vigilance Commission over the jurisdiction of the Central Bureau of Investigation and the Anti-Corruption Branch, Government of National Capital Territory of Delhi, the Central Government hereby declares that the notification number F.1/21/92-Home (P) Estt.1750, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e National Capital Territory of Delhi. Further, the Union Territories Cadre consisting of Indian Administrative Service and Indian Police Service personnel is common to Union Territories of Delhi, Chandigarh, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu, Dadra and Nagar Haveli, Puducherry and States of Arunachal Pradesh, Goa and Mizoram which is administered by the Central Government through the Ministry of Home Affairs; and similarly DANICS and DANIPS are common services catering to the requirement of the Union Territories of Daman and Diu, Dadra Nagar Haveli, Andaman and Nicobar Islands, Lakshadweep including the National Capital Territory of Delhi which is also administered by the Central Government through the Minister of Home Affairs. As such, it is clear that the National Capital Territory of Delhi does not have its own State Public Services. Thus, Services will fall within this category. And whereas it is well established that where there is no legislative power, there is no executive power since executive power is co-extensive with legislative power. And whereas matters relating to Entries 1, 2 18 of the State List being Public Order , Police and La ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 2(s) of Cr.P.C. Second, the impugned notifications create a class of offenders immune from the jurisdiction of ACB, even though they are accused of committing the same offence as other public servants and in the same territory. Such classification is not permissible under the Constitution and has been held to violate Article 14. Third, the notifications have the effect of amending various provisions of the Prevention of Corruption Act, 1988 including the definition of Public Servant , which is not permissible. 95) It is argued that power under Section 2(s) of Cr.P.C. relates to Criminal Procedure and not Police . Section 2(s) of the Cr.P.C. empowers the State Government to notify a Police Station. However, the impugned notifications are issued by the Central Government. It is argued that post the 69th Amendment, the Central Government is not the State Government for the purpose of exercising the powers u/s. 2(s) of the Cr.P.C. It is submitted that though a cursory reading of the definition of the State Government contained in Section 3(6) of the General Clauses Act, 1897 (GC Act) includes the Central Government and makes it a State Government in respect of Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supplied) Judgments of some High Courts are also cited. 98) Arguments on this issue, on behalf of the Union, were addressed by Mr. Rakesh Dwivedi, learned senior counsel. His submission was that the entire matter has to be looked into from a historical perspective. He, thus, traced the development of establishment of ACB of Delhi Police. Historically, ACB of Delhi Police appears to have been constituted in the year 1957. On December 6, 1963, the Chief Commissioner Delhi placed it under the control of Chief Secretary, Delhi Administration. On May 24, 1965, the Superintendent of Police, ACB was declared to be the head and Drawing and Disbursing Officer (DDO). Thereafter, exercising power under Section 5(1), first proviso of PC Act, the administrator of UT, Delhi authorised the inspectors of police serving in ACB to investigate offences under the said Act in the whole of the territory. This was reiterated by the order of the Administrator issued on May 19, 1970. Additionally, with respect to Section 161, 165 and 165A of IPC power of arrest without warrant was given. During the aforementioned period, the police force was governed by the Police Act, 1861, Section 40 of the Punja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by ACB in case of Central Government employees. The Rules also provided for prosecution sections. At this stage, Parliament enacted the Delhi Police Act, 1978 to amend and consolidate the law relating to the Regulation of Police in Delhi. Section 4 vests superintendence of the Delhi Police in the Administrator appointed under Article 239 of the Constitution. It is he who appoints the Commissioner of Police, Additional Commissioner of Police and Deputy Commissioner of Police. Vide Sections 10 and 11, the Commissioner of Police constitutes police districts, police sub-divisions and specifies the police stations and their limits and extents. Each police station is to be under the charge of an Inspector of Police who is appointed by the Additional Commissioner. All this is to be done subject to the control of the Administrator and his orders. Vide Section 15, the Commissioner of Police distributes duties and the mode of fulfillment of their duties. The disciplinary powers vest with the Commissioner of Police who also makes regulations subject to the orders of the Administrator. It also covers preservation of public order and peace through provisions under Chapter IV and V. The Adminis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsider it expedient to do so. 101) After tracing the aforesaid history, Mr. Dwivedi submitted that Notification dated July 23, 2014, which is now impugned, came to be issued by the Central Government to amend the earlier Notification dated November 08, 1993 which was also issued by the Central Government and that too post Article 239AA era. According to him, the object behind issuing this Notification is to implement the guidelines issued by the CVC in respect of the jurisdiction of CBI and ACB. It is this position which is restated in another Notification dated May 21, 2015 which has also been challenged by the Delhi Government. According to Mr. Dwivedi, an analysis of all the notifications shows that from May 20, 1975 itself the ACB Delhi administration was intended to be a police station for investigating offences in relation to the personnel exercising powers and functions in connection with UT Delhi. The notification dated August 1, 1986 had also invoked powers under Government of India notification dated March 20, 1974. Though the notifications territorially covered the whole of UT Delhi but the context was evidently to deal with corruption in the Administration of UT Delh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ist III of Seventh Schedule. His submission, however, is that List III is the concurrent field both for the Parliament and the States. Therefore, though the Legislative Assembly of Delhi has legislative competence in respect of matters covered by Entry 2, but it is not exclusive inasmuch as Parliament also has the legislative competence. In fact, competence of the Delhi Assembly is subservient to legislative competence of the Parliament. Moreover, Parliament had already exercised its legislative power by enacting Cr.P.C. comprehensively and exhaustively. Therefore, the field becomes occupied. In such circumstances, the legislative competence of NCTD/Legislative Assembly would stand eroded, if not denuded, which happens on account of Article 239AA(b)(c) of the Constitution. In this scenario, argued the learned counsel, GNCTD can exercise only such executive power as Cr.P.C. confers on it and this conferment should be specific and express. 105) Dr. A.M. Singhvi, learned senior counsel who appeared for the intervenor/Reliance Industries, supported and added to the aforesaid submissions, which would be taken note of in our discussion. 106) After considering the respective submiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this reason stand altered or relatable to Entry 2 of List III. It is not metaphorsis from List II to List III. In substance, issuance of an administrative/executive direction to the Police is an exercise of executive power relatable to the legislative entry pertain to Police. 109) Additionally, as already noted above, various provisions of the Delhi Police Act, 1978 also demonstrate that power of control and supervision is invested with the Administrator. This includes defining the limits and extent of the police station and administrative control over police stations. Moreover, Entry 2 List II would also include the determination as to the nature and scope of investigations to be done by the Police. Therefore, while establishing the ACB as a Police Station, it would be permissible to circumscribe and limit the investigation sphere of the ACB. 110) No doubt, Section 2(s) of the Cr.P.C. contemplates establishment of the police station by the State Government. However, the Cr.P.C. also lays down the procedure for making arrest, conducting investigation and submitting final reports. It does not contain any provision which prescribes what offences would be investigated by which p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Government. 113) Also, the opinion of Chandrachud, J. at paragraph 29 notes that exclusion of inter alia police and public order was a constitutional indication of the fact that the NCT has been considered to be of specific importance from the perspective of the nation to exclude three important areas which have a vital bearing on its status as a national capital . Following observations from the said opinion are also apt: The NCT embodies, in its character as a capital city the political symbolism underlying national governance. The circumstances pertaining to the governance of the NCT may have a direct and immediate impact upon the collective welfare of the nation. This is the rationale for exclusion of the subjects of police, public order and land from the legislative power and necessarily from the executive power of the NCT... (paragraph 55) xx xx xx ...national imperatives have led to the carving out of the areas of police, public order and land from the sphere of legislative authority of the legislative assembly and their entrustment to Parliament (paragraph 74) 114) Pertinently, the appellant wants exclusive executive power in respect of the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relation to a Commission appointed by it to make an inquiry into any matter relatable to any of the entries enumerated in List II or List III in the Seventh Schedule to the Constitution (emphasis supplied) 118) As per Mr. Naphade, clause (I) of sub-section (a) of Section 2 relates to both the Entries, namely, Entry 91 of List I and Entry 45 of List III, whereas clause (ii) is relatable to Entry 45 of List III. Argument is that since Entry 45 of List III steps in and in respect of this Entry NCTD has both legislative and executive competence, it would be an appropriate Government for the purposes of the COI Act. Mr. Naphade also referred to proviso (a) to Section 3 which, according to him, is the provision made to avoid any conflict. It is as under: (a) by the Central Government, no State Government shall, except with the approval of the Central Government, appoint another Commission to inquire into the same matter for so long as the Commission appointed by the Central Government is functioning; 119) Mr. Naphade submitted that while holding that the State Government in the above definition of appropriate Government does not include the Government of NCT of De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmon witnesses, to take evidence on oath, and to compel persons to furnish information. The Bill is designed to achieve this object. 122) Another submission is that the power to appoint a commission of enquiry generally and even under the COI Act, 1952 is a power incidental to governance as it is a means of a government informing itself of matters of public importance. By its very nature and in the interest of good governance and in principle, such a power cannot be denied to any government. Furthermore, the power to appoint a commission of inquiry, whether dehors the COI Act, 1952 or in terms of the Act is traceable to Entry 45 of List III. Thus, the power simpliciter to appoint a Commission of Enquiry exists with the Council of Ministers of GNCTD by virtue of Entry 45. The COI Act, 1952 only facilitates and provides the procedure for conducting such an enquiry. It does not make any sense to deny the Government of NCT of Delhi this procedural benefit, when it otherwise has the power to appoint an enquiry under Entry 45 of List III. More so, when the Delhi Assembly can pass a law setting up a commission of inquiry for instance on transport, water resources or primary health cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil Appeal No. 2360 of 2017 also supported the stand taken by Mr. Maninder Singh. He added to the aforesaid contention by arguing that notification dated August 20, 1996, which gives power to the LG, remains unchanged. According to him, this notification dated August 20, 1966 is a specific statutory delegation which accorded the status of the competent authority on the LG under the COI Act. Therefore, it is the administrative of any Union Territory (LG in the case of NCTD) who is competent to exercise the discharge the function of the State Government under this Act. This position, he argued, has not changed even after the Constitutional amendment and enacting of GNCTD Act, 1991. The learned counsel submitted that in State (NCT of Delhi) v. Navjot Sandhu Alias Afsan Guru (2005) 11 SCC 600, one of the arguments raised by the defence was that valid sanction had not been obtained as per Section 196 of the Cr.P.C. in order to prosecute the accused persons. However, the Court noted: 11. As regards the sanction under Section 196 CrPC it is recited in the sanction order (Ext. P-11/2) that the Lieutenant Governor acted in exercise of powers conferred by sub-section (1) of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the legislative fiction under Section 2(1) (h), the Administrator being deemed to be the State Government for the purpose of Section 50. Hence: (SCC p. 654, para 10) 10. by virtue of specific statutory delegation in favour of the Administrator who is constitutionally designated as the Lieutenant Governor as well, the sanction accorded by the said authority is a valid sanction under Section 50 of POTA. The decision in Navjot Sandhu [State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 : 2005 SCC (Cri) 1715] turned upon a specific statutory delegation in favour of the Administrator to grant sanction. It is hence of no assistance to the present constitutional context. 127) The learned counsel also sought to draw sustenance from Section 41(1)(ii) of the GNCTD Act which states that the LG shall act in his discretion in matters where he is required to, under any law. Since the LG is the Appropriate Government under the COI Act, he is bound to exercise his discretion as envisaged under Section 41 of the GNCTD Act. The power of the LG to act in his own discretion where he is required to under any law has been affirmed by the Constitution Bench decision. 128) In the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to be done after the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean, in a State, the Governor, and in a Union Territory, the Central Government; and shall, in relation to functions entrusted under article 258A of the Constitution to the Government of India, include the Central Government acting within the scope of the authority given to it under that article; 131) The GC Act also defines Government , State and Union Territory . We would like to reproduce these definitions as well: 3(23) Government or the Government shall include both the Central Government and any State Government; 3(58) State - (a) (b) as respects any period after such commencement, shall mean a State specified in Schedule I to the Constitution and shall include a Union Territory; 3(62A) Union Territory shall mean any Union Territory specified in Schedule I to the Constitution and shall include any other territory comprised within the territory of India but not specified in that Schedule; 132) No doubt, definition of State as contained in Section 3(58) includes Union Territory. However, we are concerned with the meaning of State Government which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Goa, Daman and Diu is governed by the 1963 Act [See Section 2(h)]. The expression Administrator has been defined in Section 2(a) of the 1963 Act to mean the Administrator of a Union Territory appointed by the President under Article 239 . Section 18 specifies the extent of legislative power of the Legislative Assembly of a Union Territory to encompass any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule. Section 44 provides that there shall be a Council of Ministers in each Union Territory with the Chief Minister at the head to aid and advise the Administrator in exercise of his functions in relation to matters with respect to which the Legislative Assembly of the Union Territory has power to make laws except insofar as he is required by or under the Act to act in his discretion or by or under any law to exercise any judicial or quasi-judicial functions. There is a proviso to Section 44(1) which sheds light on the position of the Administrator and powers of the Council of Ministers. According to the proviso in the event of a difference of opinion between the Administrator and the Ministers on any matter, the Administrator shall refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or administration of Union Territories. Article 239 conferred power on the President for the administration of Union Territories unless otherwise provided by an Act of Parliament. Therefore, apart from the definitions of the expressions Central Government , State Government and Union Territory as enacted in the General Clauses Act, 1897, the Constitution itself makes a distinction between State and its Government called the State Government and Union Territory and the Administration of the Union Territory. Unless otherwise clearly enacted, the expression State will not comprehend Union Territory and the State Government would not comprehend Administration of Union Territory. Now if we recall the definition of three expressions Central Government [Section 3(8),] State Government [Section 3(60)] and Union Territory [Section 3(62-A)] in the General Clauses Act, it would unmistakably show that the framers of the Constitution as also the Parliament in enacting these definitions have clearly retained the distinction between State Government and Administration of Union Territory as provided by the Constitution. It is especially made clear in the definition of expression Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved that it must follow that the Administrator is the State Government insofar as the Union Territory is concerned, and it is so provided in the definition of the State Government in Section 3(60) of the General Clauses Act . The High Court fell into an error in interpreting clause (c) of Section 3(60) which upon its true construction would show that in the Union Territory, there is no concept of State Government but wherever the expression State Government is used in relation to the Union Territory, the Central Government would be the State Government. The very concept of State Government in relation to Union Territory is obliterated by the definition. Our attention was, however, drawn to the two decisions of this Court in Satya Dev Bushahri v. Padam Dev [AIR 1954 SC 587 : 1955 SCR 549 : 1954 SCJ 764 : 10 ELR 103] and the decision of this Court in State of Madhya Pradesh v. Shri Moula Bux [AIR 1962 SC 145 : (1962) 2 SCR 794 : (1961) 2 SCJ 549] in which with reference to Part C States, some observations have been made that the authority conferred under Article 239, as it then stood, to administer Part C States has not the effect of converting those States into the Central Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccording to the proviso in the event of a difference of opinion between the Administrator and the Ministers on any matter, the Administrator shall refer it to the President for decision given therein by the President, etc. Thus the executive power of the Administrator extends to all subjects covered by the legislative power. But in the event of a difference of opinion the President decides the point. When President decides the point, it is the Central Government that decides the point. The Court noticed that the provisions of Part VI of the Constitution which deal with the States clearly indicate that a Union Territory administration is not a State Government. The Court observed that the Constitution makes a distinction between a State and its Government (called the State Government) on one hand and the Union Territory and its administration on the other hand. This distinction, the Court observed, was carried in the definition contained in the General Clauses Act: (SCC p. 214, para 14) 14. Now if we recall the definition of three expressions Central Government [Section 3(8)], State Government [Section 3(60)] and Union Territory [Section 3(62-A)] in the General Clauses Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or appointed by him. Administrator is thus the delegate of the President. His position is wholly different from that of a Governor of a State. Administrator can differ with his Minister and he must then obtain the orders of the President meaning thereby of the Central Government. Therefore, at any rate the Administrator of Union Territory does not qualify for the description of a State Government. Therefore, the Central Government is the appropriate Government . 135) We, therefore, are unable to accept the submission of Mr. Naphade that the expression State Government occurring in Section 2(a) of the COI Act would mean GNCTD, a Union Territory. 136) It is not for us to deal with the argument of Mr. Naphade that Entry 45 of List III confers legislative and executive competence on GNCTD and, therefore, GNCTD can pass an appropriate order appointing a Commission of Inquiry in exercise of its executive power. In the instant case, we are concerned with notification dated August 11, 2015 which is passed under the COI Act. We, therefore, uphold the judgment of the High Court on this aspect. Issue No.4: Whether, under Section 108 of the Electricity Act, 2003 and under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commission. (Emphasis Supplied) 139) Certain definitions which were referred to by Mr. Sibal from DER Act may also be noted. Under Section 2(d) of the DER Act, 2000 Government means the Lieutenant Governor referred to in Article 239AA of the Constitution and under Section 2(g) Lieutenant Governor means the Lieutenant Governor of the National Capital Territory of Delhi appointed by the president under Article 239 read with Article 239AA of the Constitution . Under Section 2(c), Commission means the Delhi Electricity Regulatory Commission referred in Section 3 . 140) His submission on the conjoint reading of the aforesaid definitions was that Government is defined as LG referred to in Article 239AA of the Constitution. He argued that Constitution Bench while interpreting Article 239AA has categorically held that LG is to act on the aid and advice of the Council of Ministers, and only those matters are excepted where LG has to function in his own discretion, which was not the case here. Moreover, DER Act was passed by Delhi Legislative Assembly. Therefore, even the executive power of the Union will not be there. 141) Mr. Sibal referred to the judgment of Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction under this Act; 144) As can be seen from clause (b) above, Appropriate Government is the State Government having jurisdiction under this Act in all those cases which do not come within the domain of Central Government . This definition contained in Section 2(5) of the Electricity Act is materially different from definition of Appropriate Government in Section 2(a) of the COI Act. Another important and distinguishing aspect is that in respect of Delhi, the DER Act has also been enacted by the State Legislative Assembly of NCT of Delhi to which President has accorded his consent. Under this Act, Delhi Electricity Regulatory Commission (DERC) has been established to exercise the powers conferred on, and to perform the functions assigned to it under the said Act. It acts as a quasi-judicial body which is clear from Section 10 of the DER Act. Section 11 stipulates various functions which DERC is supposed to perform which include determination of tariff for electricity, wholesale, bulk, grid or retail, as the case may be; and to determine the tariff payable for the use of transmission facility etc. In essence, such powers are almost the same powers which are given to Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1899 and Delhi Stamp (Prevention of Under-Valuation of Instruments) Rules, 2007. Before issuing this notification, matter was not placed before the LG for his views or concurrence. This notification reads as under: GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI, REVENUE DEPARTMENT, S.SHAM NATH MARG, DELHI. No.F.1(1953)/Regn.Br./Div.Com/HQ/2014/191 Dated 4th August, 2015 No.F.1(1953)/Regn.Br./Div.Com/HQ/2014- In exercise of the powers conferred by sub-section(3) of Section 27 the Indian Stamp Act, 1899 (2 of 1899) and rule 4 of the Delhi Stamp (Prevention of Under - Valuation of Instruments) Rules, 2007 read with the Ministry of Home Affairs, Govt. of India Notification No.S.O.1726 (No.F.215/61-Judl.-II) dated the 22nd July, 1961 and in supersession of this Department's notification No.F.1(177)/Regn.Br./Div.Com./07/254-279 dated 14.03.2008; the Lt. Governor of the National Capital Territory of Delhi, hereby revises and notifies the minimum rates for the purposes of chargeability of stamp duty on the instruments related to sale/transfer of agriculture land under the provisions of the said Act, as per details given below:- Srl No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot on the land itself. The occasion for levy of stamp duty is the execution of the document/conveyance, as distinguished from the immovable property which is the underlying subject matter of the transaction dealt with in the document/conveyance. Thus, the order of 4th August, 2015 traceable to Entry 63 of List II, rather than Entry 18 of List II. Entry 63 of List II reads as under: 'Rates of stamp duty in respect of documents other than those specified in the provisions of List I with regard to rates of stamp duty.' 150) The appellant has submitted that the phrase 'other than those specified in the provisions of List I ' in Entry 63 List II is of no assistance to the Union of India. An analysis of Entry 63 of List II and Entry 91 of List I (which is the concerned provision of List I) shows that a distinction can be observed between the powers of the central and state legislatures to impose/levy stamp duty. Entry 91 of List I reads as under: '91. Rates of stamp duty in respect of bills of exchange, cheques, promissory notes, bills of lading, letters of credit, policies of insurance, transfer of shares, debentures, proxies and receipts.' 151) The U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) In the case of instruments relating to land, chargeable with valorem duty, the Government may notify minimum rates for valuation of land. [Emphasis Supplied] It is submitted that 'Government' under Section 27(3) must be read to mean Government of NCT of Delhi . 155) In reply, the respondents submit that Section 27(3) of the Indian Stamp Act is concerned with notifying minimum rates for valuation of land and it has nothing to do with rates of stamp duty . As per the respondents, power to notify minimum rates for valuation of land (circle rates) is relatable to Entry 18 of List II which falls within the exclusive domain of the Union. It is also argued that as per the law laid down in State of Gujarat Ors. v. Akhil Gujarat Pravasi V.S. Mahamandal Ors. (2004) 5 SCC 155, entry in the Seventh Schedule is to be given its widest possisble interpretation. According to respondents, Entry 63 of List II only deals with rates of stamp duty and, therefore, would not apply to minimum rates for valuation of land which is relatable to Entry 18 of List II. It was also argued that by virtue of the Presidential Orders dated July 22, 1961 and September 07, 1966 under Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n instrument but it is in reality a duty on transfer of property. In that sense, as rightly held by the High Court, the occasion for levy of stamp duty is the document which is executed as distinguished from the transaction which is embodied in the document. 159) Even after accepting the aforesaid plea of the GNCTD, the High Court has set aside the said notification on the ground that this decision of the Council of Ministers was without seeking views/concurrence of the LG. As per the High Court, such an order could not be issued unless the decision of the Council of Ministers is communicated to the LG. 160) From the judgment of the Constitution Bench, it is clear that the Council of Ministers have a right to take such a decision. Discussion to this extent of the High Court is expressed in Paras 107, 108, 116 and 117 of its judgment may not be entirely correct. These paras read as under: 107. In the light of the above-noticed provisions, we have no manner of doubt to conclude that every decision taken by the Council of Ministers shall be communicated to the Lt. Governor for his views. The orders in terms of the decision of the Council of Ministers can be issued only where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 239AA. At the same time, this clause contains a proviso as well which reads as under: Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary. 162) Interpreting this proviso, it is held as under: 215. Now, it is essential to analyse clause (4) of Article 239-AA, the most important provision for determination of the controversy at hand. Clause (4) stipulates a Westminster style Cabinet system of Government for NCT of Delhi where there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Delhi Legislative Assembly has power to enact laws except in matters in respect of which the Lieutenant Governor is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd purpose in which the word has been used. 233. It has to be clearly understood that though any may not mean every , yet how it should be understood is extremely significant. Let us elaborate. The power given to the Lieutenant Governor under the proviso to Article 239-AA(4) contains the rule of exception and should not be treated as a general norm. The Lieutenant Governor is to act with constitutional objectivity keeping in view the high degree of constitutional trust reposed in him while exercising the special power ordained upon him unlike the Governor and the President who are bound by the aid and advice of their Ministers. The Lieutenant Governor need not, in a mechanical manner, refer every decision of his Ministers to the President. He has to be guided by the concept of constitutional morality. There have to be some valid grounds for the Lieutenant Governor to refer the decision of the Council of Ministers to the President in order to protect the interest of NCT of Delhi and the principle of constitutionalism. As per the 1991 Act and the Rules of Business, he has to be apprised of every decision taken by the Council of Ministers. He cannot change the decision. That apa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to mean that the Lieutenant Governor can differ on any proposal, the expectation of the people which has its legitimacy in a democratic set-up, although different from States as understood under the Constitution, will lose its purpose in simple semantics. The essence and purpose should not be lost in grammar like the philosophy of geometry cannot be allowed to lose its universal metaphysics in the methods of drawing. And that is why, we deliberated upon many a concept. Thus, the Administrator, as per the Rules of Business, has to be apprised of each decision taken by a Minister or Council of Ministers, but that does not mean that the Lieutenant Governor should raise an issue in every matter. The difference of opinion must meet the standards of constitutional trust and morality, the principle of collaborative federalism and constitutional balance, the concept of constitutional governance and objectivity and the nurtured and cultivated idea of respect for a representative Government. The difference of opinion should never be based on the perception of right to differ and similarly the term on any matter should not be put on such a platform as to conceive that as one can differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken before issuing circular dated August 4, 2015. However, we would like to add that normally, and generally, the LG is expected to honour the wisdom of the council of ministers. He is also expected to clear the files expeditiously and is not supposed to sit over it unduly. He s under duty to bear in mind expediency and urgency of the subject matter of the decisions taken by the GNCTD, where ever situation so demands. That in fact is the facet of good governance. Likewise , the executive is also expected to give due deference to the unique nature of the role assigned to the LG in the Constitutional scheme. By and large, it demands a mutual respect between the two organs. Both should realise that they are here to serve the people of NCTD. Mutual cooperation, thus, becomes essential for the effective working of the system. Issue No.6: Whether it is the Lieutenant Governor or the GNCTD which has the power to appoint the Special Public Prosecutor under Section 24 of the Cr.PC.? 164) Special Public Prosecutor is appointed as per the provisions of Section 24(8) of Cr.P.C. which is to the following effect: 24. Public Prosecutors. (8) The Central Government or the State Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta, Advocate as Special Public Prosecutor to conduct the prosecution in FIR No. 21 of 2012 dated December 17, 2012. The GNCTD had appointed another lawyer as Special Public Prosecutor. The High Court has held that under Section 24(8) of Cr.P.C., State Government is empowered to appoint Special Public Prosecutor. However, as NCTD is a Union Territory, by virtue of Section 3(60) of the GC Act, it is the Central Government which should be the State Government. Further, since by notification dated March 20, 1974, administrator is empowered to exercise powers and the expression State Government would mean the LG. At the same time, the High Court has also observed that power to appoint Public Prosecutor is relatable to Entries 1 and 2 of List III in respect of which GNCTD has legislative competence. Therefore, the LG must appoint Special Public Prosecutor on the aid and advice of Council of Ministers. 167) As is clear from the arguments of GNCTD noted above, it is aggrieved by that part of the impugned order of the High Court whereby State Government in respect of NCTD is held to be the Central Government by virtue of Section 3(60) of the GC Act. On the other hand, the Union Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he President and includes the Administrator in terms of Article 239 of the Constitution read with the Notification dated 20.03.1974 {See Para 167 (supra)} under which the Administrators of all the Union Territories were empowered to exercise the powers of the State Government under Cr.P.C. So far as NCT of Delhi is concerned, the 'State Government' thus means the Lt. Governor for the purpose of Section 24(8) of Cr.P.C. However, the power to appoint a Public Prosecutor is relatable to Entries 1 and 2 of List III in respect of which the Government of NCT of Delhi has legislative competence under Article 239AA of the Constitution. As a corollary, the exercise of the functions relating to the said subject by the Lt. Governor under Article 239AA(4) of the Constitution shall be on the aid and advice of the Council of Ministers with the Chief Minister at the head. 301. Hence, we are unable to accept the contention of the Union of India that the Council of Ministers have no role to play in exercise of the powers under Section 24(8) of Cr.P.C. In our considered opinion, the Lt. Governor under Section 24(8) of Cr.P.C. does not act eo-nominee but exercises the executive functions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive competence under Article 239AA of the Constitution and that the LG under Article 239AA(4) of the Constitution shall act on the aid and advice of the Council of Ministers. This conclusion of the High Court is in tune with the judgment of the Constitution Bench. We, therefore, hold that Lieutenant Governor, while appointing the Special Public Prosecutor, is to act on the aid and advice of the Council of Ministers. This issue is answered accordingly. 173) All the appeals stand disposed of by answering the issues in the manner aforesaid. Contempt Petition also stands disposed of. ASHOK BHUSHAN, J. I have gone through the erudite and elaborate judgment of my esteemed brother, Justice A.K. Sikri. Justice A.K. Sikri, in his opinion has noted the details of facts giving rise to these appeals, order passed in these appeals referring it to the Constitution Bench and the judgment of Constitution Bench delivered on 04.07.2018. My Brother has noted the elaborate submissions made before us, after the Constitution Bench has answered the reference and sent back the matter to the regular Bench for deciding these appeals. The submissions made before us by learned counsel for the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ublic Prosecutor under Section 24 of the Cr.P.C.? 2. I am in full agreement with the conclusions arrived and 6. I do not intend to add anything on the above issues. On Issue No.1, I do not entirely agree with the opinion of my esteemed brother, however, I am in agreement with his opinion that Entry 41 of List II of the Seventh Schedule of the Constitution is not available to the Delhi Legislative Assembly. I proceed to consider the Issue No.1. 3. As noted above with regard to decisions on all other issues as given in the opinion of my esteemed brother I entirely agree. 4. It is C.A.No.2357 of 2017(Govt. of NCT of Delhi vs. Union of India) filed against the judgment of the Delhi High Court dated 04.08.2016 in Writ Petition (C)No.5888 of 2015 in which the above issue has arisen. The Writ Petition (C)No.5888 of 2015 (Govt. of NCT of Delhi vs. Union of India) was filed challenging the notifications dated 21.05.2015 and 23.07.2014 issued by the Govt. of India, Ministry of Home Affairs empowering the Lt. Governor to exercise the powers in respect of matters connected with Services . The notification dated 21.05.2015 which was challenged in Writ Petition (C)No.5888 of 2015 was t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ministry of Home Affairs. As such, it is clear that the National Capital Territory of Delhi does not have its own State Public Services. Thus, Services will fall within this category. And whereas it is well established that where there is no legislative power, there is no executive power since executive power is co-extensive with legislative power. And whereas matters relating to Entries 1, 2 18 of the State List being Public Order , Police and Land respectively and Entries 64, 65 66 of that list in so far as they relate to Entries 1, 2 18 as also Services fall outside the purview of Legislative Assembly of the National Capital Territory of Delhi and consequently the Government of NCT of Delhi will have no executive power in relation to the above and further that power in relation to the aforesaid subjects vests exclusively in the President or his delegate i.e. the Lieutenant Governor of Delhi. Now, therefore, in accordance with the provisions contained in article 239 and sub-clause (a) of clause (3) of 239AA, the President hereby directs that - (i) subject to his control and further orders, the Lieutenant Governor of the National Capital Territory o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly of NCT of Delhi. Therefore, the direction in the impugned Notification S.O. No. 1368(E) dated 21-5-2015 that the Lieutenant Governor of the NCT of Delhi shall in respect of matters connected with Services exercise the powers and discharge the functions of the Central Government to the extent delegated to him from time to time by the President is neither illegal nor unconstitutional. The Delhi High Court, in result, dismissed Writ Petition (C)No.5888 of 2015. 6. While hearing this batch of appeals issues arose regarding the interpretation that needed to be given to Article 239AA of the Constitution of India. Two-Judge Bench directed for placing the matter before Chief Justice for constituting a Constitution Bench. On the above reference order, a five-Judge Constitution Bench was constituted and matter was heard by five-Judge Constitution Bench which delivered its judgment on 04.07.2018. The main judgment of the Constitution Bench had been authored by Justice Dipak Misra, C.J. (as he then was) for himself and for Dr. Justice A.K. Sikri and Justice A.M. Khanwilkar. Two other separate opinions were also delivered, one by Dr. Justice D.Y. Chandrachud and one by myself, (Justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assembly of Delhi nor answered the said question. It is submitted that although before the Constitution Bench it was emphatically submitted that as per Article 239AA sub-clause (3)(a) the Legislative Assembly shall have power to make laws with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union Territories . It is submitted before us that emphasis before the Constitution Bench was that all matters enumerated in State List and Concurrent List shall not be ipso facto available to Legislative Assembly of Delhi and Legislative power is given only of those matters which matters are applicable to Union Territory of Delhi. It is submitted that the Constitution Bench has specifically noted the above argument but has neither considered nor decided the issue, hence, the issue has to be considered and decided by this Bench. 10.Entry 41 of List II which is the subject matter of consideration is as follows: 41.State public services; State Public Service Commission. 11.We may first notice that the Constitution Bench speaking through Justice Dipak Misra, C.J. (as he then was) as well as two other opi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction has to be understood in the context of conferment of special status. 14.The Constitution Bench speaking through Justice Dipak Misra, C.J. (as he then was) has in its judgment clearly accepted the position that NCT of Delhi is not a State and it remains a Union Territory. In this reference, in paragraph Nos. 196 and 201 of the judgment following has been laid down: 196. Thus, NDMC makes it clear as crystal that all Union Territories under our constitutional scheme are not on the same pedestal and as far as NCT of Delhi is concerned, it is not a State within the meaning of Article 246 or Part VI of the Constitution. Though NCT of Delhi partakes a unique position after the Sixty-ninth Amendment, yet in sum and substance, it remains a Union Territory which is governed by Article 246(4) of the Constitution and to which Parliament, in the exercise of its constituent power, has given the appellation of the National Capital Territory of Delhi . 201. In the light of the aforesaid analysis and the ruling of the nine-Judge Bench in NDMC, it is clear as noonday that by no stretch of imagination, NCT of Delhi can be accorded the status of a State under our present constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailable to Legislative Assembly of Delhi or not except a general statement that Legislative Assembly of Delhi shall have power to make laws with respect to any of the matters enumerated in List I and List II except Entries 1, 2 and 18 of State List. 17. We may also notice the conclusion recorded by the Constitution Bench speaking through Justice Dipak Misra, C.J. (as he then was) in paragraph No.284. The conclusion in paragraph No.284.13 is as follows: 284.13. With the insertion of Article 239-AA by virtue of the Sixty-ninth Amendment, Parliament envisaged a representative form of Government for NCT of Delhi. The said provision intends to provide for the Capital a directly elected Legislative Assembly which shall have legislative powers over matters falling within the State List and the Concurrent List, barring those excepted, and a mandate upon the Lieutenant Governor to act on the aid and advice of the Council of Ministers except when he decides to refer the matter to the President for final decision. 18.As noticed above the Constitution Bench in paragraph No.39 extracted above has noticed the submissions of the counsel for the respondents that words insofar as any s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowances as determined by the Legislative Assembly by law. Section 43(3) similarly provides that the salaries and allowances of Ministers shall be determined by the Legislative Assembly. However, Section 24 provides that a Bill for the purpose has to be reserved for the consideration of the President. Parliament would not have enacted the above provisions unless legislative competence resided in the States on the above subject. The subjects pertaining to the salaries and allowances of Members of the Legislature of the State (including the Speaker and Deputy Speaker) and of the Ministers for the State are governed by Entry 38 and Entry 40 of the State List. The GNCTD Act recognises the legislative competence of the Legislative Assembly of NCT to enact legislation on these subjects. The use of the expression State in these entries does not divest the jurisdiction of the Legislative Assembly. Nor are the words of Article 239-AA(3)(a) exclusionary or disabling in nature. 463. The purpose of the above narration is to indicate that the expression State is by itself not conclusive of whether a particular provision of the Constitution would apply to Union Territories. Similarly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission in paragraph Nos. 500, 551 and 552 in following words: 500. It is submitted that even when Article 239-AA(3)(a) stipulates that Legislative Assembly of Delhi shall have the power to legislate in respect of subject-matters provided in List II and List III of the VIIth Schedule of the Constitution of India, it specifically restricts the legislative powers of the Legislative Assembly of Delhi to those subject-matters which are applicable to Union Territories . The Constitution envisages that List II and List III of the VIIth Schedule of the Constitution of India contain certain subject-matters which are not applicable to Union Territories. The intention of the Constitution-makers is that even when the subject-matters contained in List II and List III of the VIIth Schedule become available to the Legislative Assembly of NCT of Delhi, the subject-matters in the said Lists which are not applicable to Union Territories would not become available to the Legislative Assembly of NCT of Delhi and would be beyond its legislative powers. 551. The provision is very clear which empowers the Legislative Assembly to make laws with respect to any of the matters enumerated in the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered for deciding C.A.No.2357 of 2017. 26.As noted above, Article 239AA has been inserted by Constitution 69th Amendment, 1991 with effect from 1st February, 1992. Legislative powers to Legislative Assembly for Union Territory was an accepted principle even before 69th Constitution (Amendment) Act. The Government of Union Territories Act, 1963 was enacted by Parliament in reference to Article 239A brought by Constitution 14th Amendment, 1962. Article 239A provided as follows: 239A. Creation of local Legislatures or Council of Ministers or both for certain Union territories.- (1) Parliament may by law create for the Union territory of Pondicherry- (a) a body, whether elected or partly nominated and partly elected, to function as a Legislature for the Union territory, or (b) a Council of Ministers, or both with such Constitution, powers and functions, in each case, as may be specified in the law. (2) Any such law as is referred to in clause (1) shall not be deemed to be an amendment of this Constitution for the purposes of article 368 notwithstanding that it contains any provision which amends or has the effect of amending this Constitution. 27.Article 239A emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Committee to go into the various issues connected with the administration of Delhi and to recommend measures inter alia for the streamlining of the administrative set-up. The Committee went into the matter in great detail and considered the issues after holding discussions with various individuals, associations, political parties and other experts and taking into account the arrangements in the National Capitals of other countries with a federal set-up and also the debates in the Constituent Assembly as also the reports by earlier Committees and Commissions. After such detailed inquiry and examination, it recommended that Delhi should continue to be a Union Territory and provided with a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concern to the common man. The Committee also recommended that with a view to ensure stability and permanence the arrangements should be incorporated in the Constitution to give the National Capital a special status among the Union Territories. 2. The Bill seeks to give effect to the above proposals. 31.The Constitution Bench judgment of this Court in Govt. of NCT of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsofar as any such matters are applicable in relation to Union Territories has noticed that apart from entries specifically excluded, there are other entries, which ipso facto fall outside the purview of the Delhi Legislative Assembly. Following has been stated in Paragraph No. 6.7.12:- 6.7.12 .....Another connected Entry in the State List is Entry No.35 which is Works, lands and buildings vested in or in the possession of the State . Considering that the powers of the Assembly proposed for Delhi will extend to matters in the State List and the Concurrent List of the Constitution in so far as such matters are applicable in relation to Union territories Entry 35 will ipso facto fall outside the purview of the Assembly proposed for Delhi because that Entry is applicable to States and not to Union territories...... 34.Entry 41 of List II of VIIth Schedule of the Constitution was specifically considered in the Balakrishnan Committee Report and the Balakrishnan Committee Report opined that the said entry is not applicable to the Union Territory. On the above subject, following was stated in the Report in Paragraph Nos. 8.1.2 and 8.1.3:- 8.1.2 Entry 41 of the State List ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Minister. 36.The Balakrishnan Committee Report which led into passing of the 69th Constitution (Amendment) Act categorically has accepted the position that Entry 41 of List II shall not be within the Legislative competence of Delhi Legislature, which conclusion was plausible, since the Legislative power of the Delhi Legislative Assembly was circumscribed by the expression insofar as any such matter is applicable in relation to Union Territories as occurring in Article 239AA(3). In Balakrishnan Committee Report, the Committee noticed the existence of services, which were in existence in the Union Territory of Delhi. There were common services for several Union Territories constituted by Union. On 13.07.1959, the President has issued an order in exercise of power conferred by Proviso to Article 309 of the Constitution and framed Rules namely, Conditions of Services of Union Territories Employees Rules, 1959. 37.The Delhi Administration Subordinate Ministerial/Executive Service Rules., 1967 were also framed by the President in exercise of power conferred by Article 309 of the Constitution of India. Rule 2(d) provided that commission means the Union Public Services Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re by stating that, The posts in CCS Group C are in the subordinate services. The equivalent in the Union Territory of Delhi is the Delhi Administrative Subordinate Services (DASS) and the recruiting agency in the place of Staff Selection Commission is the Delhi Subordinate Service Selection Board (DSSSB). Members of the Delhi Administrative Subordinate Services are the feeder cadre for Central Civil Services Group B (DANICS). It is for these reasons that the policy (of pan India eligibility) is consistently adopted. 66. A combined reading of these provisions of the DASS Rules, 1967 and CCS Rules, 1965, therefore, more than adequately explains the nature of Subordinate Services in the NCT of Delhi. These clearly are General Central Services and perhaps, it is owing to this state of affairs that the Union of India in its affidavit has stated that, Members of the Delhi Administrative Subordinate Services are the feeder cadre for Central Civil Services Group B (DANICS). It is for these reasons that the policy (of pan India eligibility) is consistently adopted. 38.The Constitution Bench in Bir Singh (supra), thus, has opined that services in the National Capital Territory are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the Concurrent List ). (3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the State List ). (4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List. 41.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 connotes different expression. There is a difference between the Legislative powers of the State and the Union Territories, which is apparent by use of dif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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