Govt. of NCT of Delhi vs Union of India

Constitution of India – Seventh Schedule, List II, Entry 2 – Whether the exclusion of the jurisdiction of the Anti-Corruption Branch (ACB) of the NCTD to investigate offences committed under the Prevention of Corruption Act by the officials of the Central Government and limiting the jurisdiction of the ACB to the employees of the GNCTD alone is legal – Held: ACB is not empowered to investigate into the offences of Central Government employees under the Prevention of Corruption Act – Such investigation is carried out by CBI – Therefore, it obviates the duality and conflict of jurisdiction as well – As per Notifications dated 23.7.2014 and 21.5.2015, the jurisdiction of ACB is limited to the employees of GNCTD only – Code of Criminal Procedure, 1973 – s.2(s) – Prevention of Corruption Act, 1947.

Constitution of India – Seventh Schedule, List II, Entry 2 – Term ‘police’ occurring therein – Meaning of – Held: It is a settled principle that legislative entries are to be interpreted in a broad and liberal manner consistent with imputing to them the widest amplitude and as including all ancillary and subsidiary matters – The scope of the term ‘Police’ as occurring in Entry 2 of List II cannot, therefore, be artificially restricted or limited to only constitution of the Police force, but would take within its fold the legislative (and, therefore, executive) power to exercise supervision and control over the functioning of the Police so constituted, including by way of issuance of executive directions delineating the powers, functions and jurisdiction of different wings/sections of the Police – 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.

Constitution of India – Seventh Schedule, List II, Entry 1 – Notification dated 23.7.2014 and 21.5.2015 – By these Notifications, the jurisdiction of ACB was limited to the employees of GNCTD – Validity of these notifications challenged on the ground that s.2(s) empowers the State Government to notify a police station and the impugned notification was issued by the Central Government and post 69 th Amendment, the Central Government is not the State Government for exercising power under s.2(s) – Held: No doubt, s.2(s) of the Cr.P.C. contemplates establishment of the police station by the State Government – However, the Cr.P.C. also lays down the procedure for making arrest, conducting investigation and submitting final reports – It does not contain any provision which prescribes what offences would be investigated by which police force – These provisions do not provide how parallel jurisdiction of two police stations is to be demarcated – In fact, parallel jurisdiction to investigate is not contemplated by Cr.P.C. as that would result in chaos and anarchy and would frustrate the very purpose of investigation – Therefore, the Government which has competence over Entry 2 List II would have power to segregate and demarcate the jurisdiction to investigate as between two police forces – Thus, the impugned notifications are valid – This conclusion becomes inevitable when Cr.P.C. is read with the Delhi Police Act, 1978 and other cognate enactments – Entry 1 of List II, subject matter whereof is ‘public order’, also stands excluded from the purview of GNCTD and is the exclusive domain of the Parliament/ Central Executive – The term ‘public order’ includes cognizance of offences, search, seizure and arrest, followed by registration of reports of offences (FIRs), investigation, prosecution, trial and in the event of conviction, execution of sentences as well – All these aspects are to be construed conjointly – Code of Criminal Procedure, 1973 – s.2(s) – Interpretation of Statutes.

Commission of Inquiry Act, 1952 – s.2(a) – Whether the GNCTD is an ‘appropriate Government’ under the Commission of Inquiry Act, 1952 – Held: s.3(8) of the General Clauses (GC) Act defines Central Government – s.3(60) of the GC Act, on the other hand, defines State Government – The GC Act also defines ‘Government’, ‘State’ and ‘Union Territory’ – No doubt, definition of State as contained in s.3(58) includes Union Territory – In respect of Union Territory, the State Government would mean the Central Government – The expression ‘State Government’ occurring in s.2(a) of the COI Act which defines ‘Appropriate Government’ would not mean GNCTD, a Union Territory – General Clauses Act – ss.3(8) and 3(60).

Electricity Act, 2003 – s.108 – Whether under s.108 of the Electricity Act, 2003 and under s.12 of the Delhi Electricity Reforms Act, 2000, the power to issue directions to the State Commission is with the GNCTD – Held: Under s.2(5)(b) of the Electricity Act, 2003, 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’ – Insofar as NCTD is concerned, it has its own Commission, namely, DERC – DER Act also stipulates powers of Government in Part IV thereof – General powers of the Government, inter alia, include giving directions to the DERC in matters of policy involving public interest, as the Government may issue from time to time – These powers are akin to the powers given under s.108 of the Electricity Act, 2003 – Insofar as DER Act is concerned, it is an enactment enacted by Legislative Assembly of NCTD – It operates within the NCTD – Under this Act, Delhi Government has power to issue directions to the DERC in matters of policies involving public interest – When such powers are conferred specifically to Delhi Government under DER Act, it cannot be said that insofar as s.108 of the Electricity Act, 2003 is concerned, the expression ‘State Government’ therein would mean the Central Government – Delhi Electricity Reforms Act, 2000 – s.12. Stamp Act, 1899 – Whether the GNCTD had the power to revise the minimum rates of Agricultural Land (Circle Rates) under the provisions of Stamp Act, 1899 – GNCTD issued the notification dated August 4, 2015 revising the rates of Agricultural Land (Circle Rates) under the provisions of Indian Stamp Act, 1899 and Delhi Stamp (Prevention of Under-Valuation of Instruments) Rules, 2007 – Before issuing this notification, matter was not placed before the LG for his views or concurrence – Held: Notification dated August 4, 2015 revising the rates of agricultural land (circle rates) is traceable to Entry 63 of List II and not to Entry 18 of List II – Said notification is issued under the provisions of 1899 Act and 2007 Rules – Circle rates are fixed for the purpose of payment of stamp duty – Therefore, they do not pertain to ‘land’ namely rights in or over land, land tenures etc. or transfer of alienation of agricultural land etc. – Stamp duty is not a duty on instrument but it is in reality a duty on transfer of property – In that sense, the occasion for levy of stamp duty is the document which is executed as distinguished from the transaction which is embodied in the document – However, even when the executive wing of Delhi Government takes a decision, the LG is also empowered to form its opinion ‘on any matter’ which may be different from the decision taken by his Ministers – Any matter does not mean each and ‘every matter’ or ‘every trifling matter’ but only those rare and exceptional matters where the difference is so fundamental to the governance of the Union Territory that it deserved to be escalated to the President – Therefore, the LG is not expected to differ routinely with the decision of Council of Minister – At the same time, the proviso recognises that there may be contingencies where LG and his Ministers may differ – In such circumstances, LG is supposed to refer the matter to the President for decision and act according to the decision given thereon by the President – It means that final say, in case of difference between LG and Council of Ministers, is that of the President – Such a scheme of things clearly contemplates that the Council of Ministers is supposed to convey its decisions to the LG to enable the LG to form his view thereupon – The decision cannot be implemented without referring the same to the LG in the first instance – More pertinently, the decision here touches upon the governance of the UT – Therefore, views of LG should have been taken before issuing Notification dated August 4, 2015 – Constitution of India – Schedule

7 List II Entry 63 – Delhi Stamp (Prevention of Under-Valuation of Instruments) Rules, 2007 – Notification dated August 4, 2015.

Constitution of India – Art.239AA, clause (4) and its proviso – LG, role of – Normally, and generally, the LG is expected to 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 is 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 to serve the people of NCTD – Mutual cooperation, thus, becomes essential for the effective working of the system.

Code of Criminal Procedure, 1973 – s.24 – Power to appoint the Special Public Prosecutor – Whether it is the LG or the GNCTD which has the power to appoint the Special Public Prosecutor under s.24, Cr.PC. – Held: Special Public Prosecutor is appointed as per the provisions of s.24(8) of Cr.P.C. which is to the effect that power to appoint Special Public Prosecutor is conferred both upon the Central Government and the State Government – Insofar as NCTD is concerned, the ‘State Government’ means the LG for the purposes of s.24(8) of Cr.P.C. – In respect of Entries 1 and 2 of List III, the GNCTD has legislative competence under Art.239AA of the Constitution and that the LG under Art.239AA(4) of the Constitution shall act on the aid and advice of the Council of Ministers – Constitution of India – Art.239AA.

Disposing of the appeals, the Court

HELD:

Per A.K Sikri, J.

1: Whether the exclusion of ‘Services’ relatable to Entry

41 of List II of the Seventh Schedule from the legislative and executive domain of the NCTD, vide Notification dated May 21, 2015, is unconstitutional and illegal?[Para 70][113-G-H]

1.1 It is undisputed that the matter pertains to the ‘Services’ which consists of Indian Administrative Service, Indian Police Service. Likewise, DANICS and DANIPS are common services catering to the requirement of various Union Territories including NCTD. These are All India Services and the cadre in question is Union Territory Cadre which is common to all Union Territories 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. Insofar as allocation of personnel belonging to the said services is concerned, it is the Central Government through 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. [Para 84][125-F-H; 126-A-B]

1.2 Entry 41 of List II deals with ‘State Public Services’ and ‘State Public Service Commission’. State Public Service Commission does not exist in NCTD. When dealing with All India Services and DHANICS Services etc., it is also doubtful to mention it as State Public Service. The issue, however, is to see as to whether it is within the powers of GNCTD to assign such officers to particular departments, once they are allocated to the NCTD by the joint cadre authority. As per Rule 2(c) of Indian Administrative Services (Cadre) Rules, 1954, State includes a Union Territory. Rule 7 deals with posting and, inter alia, stipulates that in the case of joint cadre, posting shall be by the State Government concerned. In the context of Article 312 of the Constitution, this Court has held in Prem Kumar Jain case that Union Territories are States for the purpose of the said Article. [Paras 86, 87][126-D-G]

Prem Kumar Jain and Others (1976) 3 SCC 743 : [1976] Suppl. SCR 166 – relied on.

1.3 Similar is the position in respect of DANICS. Rule 11 of DANICS Rules, 2003 empowers Administrator of the administration concerned i.e. Union Territory, to make these postings. On the other hand, in the context of NCTD, the Administrator, namely, LG is supposed to function in this behalf on the aid and advice of the Council of Ministers. Therefore, it becomes equally doubtful as to whether it falls within the discretionary powers of the L.G. This leads to a very peculiar situation. The appellant has endeavoured to assume the executive power in respect of ‘services’ by relying upon Entry

41 of List II, which may be doubtful. That situation may give discretionary powers to the L.G. On the other hand, it also cannot be said that once the manpower is allocated to Union Territory of Delhi, the GNCTD should not have any power to deal with such employees. In such a scenario, and to avoid any conflict of exercise of powers between the LG on the one hand (as representative of the Central Government) and the Council of Ministers with Chief Minister as Head on the other hand, for the smooth functioning of the system, it is necessary to carve out a just and fair mechanism. The transfers and postings of Secretaries, HODs and other officers in the scale of Joint Secretary to the Government of India and above can be done by the Lieutenant Governor and the file submitted to him directly. For other levels, including DANICS officers, the files can be routed through the Chief Minister to Lieutenant Governor. In case of difference of opinion between the Lieutenant Governor and the Chief Minister, the view of the Lieutenant Governor should prevail and the Ministry of Home Affairs can issue a suitable notification in this regard. However, for Grade IV, III, II and I DASS officials, there is an existing delegation of powers where for Grades IV and III, all transfers and postings are done by the Secretary (Services); for Grades II and I, the transfers and postings are done by the Chief Secretary. For greater transparency, a Civil Services Board can be formed which can be headed by the Secretary (Services) for Grades IV and III officials; by the Chief Secretary for Grades II and I level officers. [Paras 88-90][126-G-H; 127-A-G]

1.4 Insofar as disciplinary authorities are concerned, the same are already prescribed as per the CCA (CCS) Rules and the Rules applicable for different services including IAS & DANICS. The appointing and disciplinary authority is the President of India, as per the powers delegated by the President from time to time. Vigilance matters would get covered by the applicable disciplinary rules in terms of officers competent to initiate and take vigilance action. In the interest of good governance and smooth Governmental function, efforts should be made by both the Chief Minister as well as the LG for a harmonious working relation. [Paras 91, 92][128-B-C]

2. Whether the exclusion of the jurisdiction of the AntiCorruption Branch (ACB) of the NCTD to investigate offences committed under the Prevention of Corruption Act by the officials of the Central Government and limiting the jurisdiction of the ACB to the employees of the GNCTD alone is legal?[Para 92][128-D]

2.1 By Notification dated August 01, 1986, the Administrator declared ACB of Delhi Administration as a Police Station under Section 2(s) of Cr.P.C. for the purpose of certain corruption related offences under the IPC and the Prevention of Corruption Act, 1947. As per this notification, the ACB had “jurisdiction all over the whole of Union Territory of Delhi”. In supersession of this notification by Notification dated November 08, 1993, the GNCTD through the Lieutenant Governor declared the ACB of NCTD at Old Secretariat as a police station under Section 2(s) of the Cr.P.C. for offences under the Prevention of Corruption Act, 1988. Thereafter, two Notifications dated July 23, 2014 and May 21, 2015 came to be issued by the Central Government as per which the jurisdiction of ACB is limited to the employees of GNCTD only. The issue is limited, viz., whether ACB is empowered to register cases in respect of Central Government employees as well? The challenge laid by the appellant to these Notifications is predicated on Entry 2 of List II. Even after conferment of the status of quasi-State upon Delhi (which though in constitutional term remains Union Territory), Article 239AA (which gives such a status) itself excludes Entry 2 from the domain of NCTD. Thus, in respect of ‘Police’, NCTD does not have either legislative or executive power. [Paras 93, 106, 107][128-E-G; 138-D-F]

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

2.2 It is a settled principle that legislative entries are to be interpreted in a broad and liberal manner consistent with imputing to them the widest amplitude and as including all ancillary and subsidiary matters. The scope of the term ‘Police’ as occurring in Entry 2 of List II cannot, therefore, be artificially restricted or limited to only constitution of the Police force, but would take within its fold the legislative (and, therefore, executive) power to exercise supervision and control over the functioning of the Police so constituted, including by way of issuance of executive directions delineating the powers, functions and jurisdiction of different wings/sections of the Police. In essence, the impugned notifications, to the extent they are in the nature of administrative directions to the Police, are directly relatable to Entry 2 of List II and as such squarely within the competent of the Government of India. Even to the extent the executive power being exercised qua the Police may correspond to the functions of the Police as set out in the Cr.P.C., the nature of the power would not for this reason stand altered or relatable to Entry 2 of List III. It is not metaphorsis from List II to List III. In substance, issuance of an administrative/executive direction to the Police is an exercise of executive power relatable to the legislative entry pertain to Police. Additionally, 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. [Paras 108, 109][138-G-H; 139-A-E]

2.3 No doubt, Section 2(s) of the Cr.P.C. contemplates establishment of the police station by the State Government. However, the Cr.P.C. also lays down the procedure for making arrest, conducting investigation and submitting final reports. It does not contain any provision which prescribes what offences would be investigated by which police force. Section 156 of the Cr.P.C. merely provides that officers in the police station will investigate those cognizable cases which can be tried by the court having jurisdiction over the local area concerned would have power to inquire into or try. These provisions do not provide how parallel jurisdiction of two police stations is to be demarcated. In fact, parallel jurisdiction to investigate is not contemplated by Cr.P.C. as that would result in chaos and anarchy and would frustrate the very purpose of investigation. This leads to hold that the Government which has competence over Entry 2 List II would have power to segregate and demarcate the jurisdiction to investigate as between two police forces. Hence the impugned notifications are valid. This conclusion becomes inevitable when Cr.P.C. is read with the Delhi Police Act, 1978 and other cognate enactments. [Para 110][139-F-H; 140-A]

2.4 Entry 1 of List II, subject matter whereof is ‘public order’, also stands excluded from the purview of GNCTD and is the exclusive domain of the Parliament/Central Executive. The term ‘public order’ includes cognizance of offences, search, seizure and arrest, followed by registration of reports of offences (FIRs), investigation, prosecution, trial and in the event of conviction, execution of sentences as well. All these aspects have to be construed conjointly. In fact, there was a specific rationale in excluding Entries 1, 2 and 18 of List II from the jurisdiction of the Government of NCTD. The Balakrishnan Committee report which recommended exclusion of these Entries (and which part of the Report stands accepted by providing so specifically in Article 239AA of the Constitution) was of the view that duties and responsibilities pertaining to the Police and maintenance of public order be vested solely in the Central Government so that ‘there is no confusion or overlap of the jurisdiction in regard to the focal point of control and coordination’. This rationale behind the said exclusion directly flows from the unique position occupied by the NCTD as the nation’s capital and seat of the Central Government. [Paras 111, 112][140-B-E] Stainislaus v. State of Madhya Pradesh and Others (1977) 1 SCC 677: [1977] 2 SCR 611; Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra and Others (2010) 5 SCC 246 : [2010] 4 SCR 1042 – relied on.

2.5 Insofar as Notification dated November 08, 1993 is concerned, whereby ACB of NCTD at Old Secretariat as police station was created by the Lieutenant Governor, the same has not been challenged. No doubt, there was no elected Government at that time. Fact remains that this Notification has held the field even thereafter throughout. The impugned Notifications are only a modification to the aforesaid Notification dated November 08, 1993 to a limited extent whereby it is clarified that this earlier Notification shall be applicable to ‘the officers and employees of that Government only (GNCTD)’. Thus, the only effect is that the ACB is not empowered to investigate into the offences of Central Government employees under the Prevention of Corruption Act. Admittedly, this investigation is carried out by the CBI. Therefore, it obviates the duality and conflict of jurisdiction as well. Thus, the validity of Notifications dated July 23, 2014 and May 21, 2015 is upheld. [Paras 114, 115][141-D-F]

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

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

Goa Sampling Employees’ Association v. General Superintendence Co. of India (1985) 1 SCC 206

: [1985] 2 SCR 373 – relied on.

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

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

4.1 Electricity Act, 2003 defines ‘Appropriate Government’ in Section 2(5). As can be seen from clause (b), 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 Electricity Regulatory Commission (CERC). Thus, insofar as NCTD is concerned, it has its own Commission, namely, DERC. General powers of the Government, inter alia, include giving directions to the DERC in matters of policy involving public interest, as the Government may issue from time to time. These powers are akin to the powers given under Section 108 of the Electricity Act. [Paras 143, 144][159-B, E-H; 160-A, B]

4.2 DER Act is an enactment enacted by Legislative Assembly of NCTD. It operates within the NCTD. Government here means GNCTD i.e. LG who is supposed to act on the aid and advice of the Council of Ministers. Under this Act, Delhi Government has power to issue directions to the DERC in matters of policies involving public interest. When such powers are conferred specifically to Delhi Government under DER Act, it cannot be said that insofar as Section 108 of the Electricity Act, 2003 is concerned, the expression ‘State Government’ therein would mean the Central Government. If such an interpretation is given, there would clearly be a conflict of jurisdiction in the NCTD insofar as working of Electricity Act/DER Act are concerned. As a result, the decision of the Delhi High Court on this aspect is set aside. It was within the jurisdiction of GNCTD to issue notification dated June 12, 2015. [Para 146][160-D-G]

5. Whether the Revenue Department of the GNCTD had the power to revise the minimum rates of Agricultural Land (Circle Rates) under the provisions of Indian Stamp Act, 1899?[Para 146][160-H]

5.1 The GNCTD had issued the notification dated August 4, 2015 revising the rates of Agricultural Land (Circle Rates) under the provisions of Indian Stamp Act, 1899 and Delhi Stamp (Prevention of Under-Valuation of Instruments) Rules, 2007. Before issuing this notification, matter was not placed before the LG for his views or concurrence. Insofar as Entry 91 of List I is concerned, subject matter thereof is within the exclusive domain of the Centre/Parliament. It deals with ‘rates of stamp duty in respect of wills of exchange, cheques, promissory notes, bills of lading, letters of credit, policies of insurance, transfer of shares, debentures, proxies and receipts’. It follows that insofar as instruments mentioned in Entry 91 of List I are concerned, rates of stamp duty of such documents are within the exclusive domain of the Union. In respect of other instruments, it is the State which has the necessary jurisdiction to fix the rates of stamp duty. [Paras 147, 157][161-A-B; 165-C-D]

State of Gujarat & Ors. v. Akhil Gujarat Pravasi V.S. Mahamandal & Ors. (2004) 5 SCC 155 : [2004]

3 SCR 956 – referred to.

5.2 Notification dated August 4, 2015 revising the rates of agricultural land (circle rates) is traceable to Entry 63 of List II and not to Entry 18 of List II. Circle rates are fixed for the purpose of payment of stamp duty. Therefore, they do not pertain to ‘land’ namely rights in or over land, land tenures etc. or transfer of alienation of agricultural land etc. Stamp duty is not a duty on instrument but it is in reality a duty on transfer of property. In that sense, the occasion for levy of stamp duty is the document which is executed as distinguished from the transaction which is embodied in the document. Even after accepting the said plea of the GNCTD, the High Court set aside the said notification on the ground that this decision of the Council of Ministers was without seeking views/concurrence of the LG. [Paras 158, 159][165-E-H; 166-A]

5.3 It becomes clear from the proviso to clause (4) of Article 239AA that even when the executive wing of Delhi Government takes a decision, the LG is also empowered to form its opinion ‘on any matter’ which may be different from the decision taken by his Ministers. Any matter does not mean each and ‘every matter’ or ‘every trifling matter’ but only those rare and exceptional matters where the difference is so fundamental to the governance of the Union Territory that it deserved to be escalated to the President. Therefore, the LG is not expected to differ routinely with the decision of Council of Minister. Difference should be on cogent and strong reasons. However, this limitation pertains to LG’s exercise of power. At the same time, the proviso recognises that there may be contingencies where LG and his Ministers may differ. In such circumstances, LG is supposed to refer the matter to the President for decision and act according to the decision given thereon by the President. However, 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. 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. [Para 163][159-B, E-H; 160-AB] 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.?[Para 163][172-C] As per the provisions of Section 24(8) of Cr.P.C., power to appoint Special Public Prosecutor is conferred both upon the Central Government and the State Government. 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. As per Sections 3(8), 3(58) and 3(60) of the GC Act, the expression ‘State Government’ for the purposes of a Union Territory means the President and includes the Administrator in terms of Article 239A of the Constitution. Insofar as NCT of Delhi is concerned, the ‘State Government’, means the LG for the purposes of Section 24(8) of Cr.P.C. The High Court rightly held that in respect of these entries, the Government of NCT of Delhi has legislative competence under Article 239AA of the Constitution and that the LG under Article 239AA(4) of the Constitution shall act on the aid and advice of the Council of Ministers. The LG, while appointing the Special Public Prosecutor, is to act on the aid and advice of the Council of Ministers. [Paras 164, 166, 170, 172][172-D; 173-E-F; 176-C-E]

Samsher Singh vs. State of Punjab (1974) 2 SCC 831 : [1975] 1 SCR 814; NDMC v. State of Punjab (1997) 7 SCC 339 : [1996] 10 Suppl. SCR 472; Rai Sahib Ram Jawaya Kapur & Ors. v. State of Punjab AIR 1995 SC 549; Bir Singh v. Delhi Jal Board and Others (2018)

10 SCC 312 – referred to.

Per Ashok Bhushan, J. (Partly dissenting)

1. Article 239AA has been inserted by Constitution 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 empowered the Parliament by law to create a body to function as a Legislature for the Union Territory. Such Union Territory constituted under Government of Union Territories Act, 1963 had Legislative power as provided by the Parliament itself under Section 18 of the Act, 1963. Thus, the expression “insofar as any such matter is applicable in relation to Union Territories” is a known concept which was occurring in Section 18 of the Act of 1963 also. [Paras 26, 27, 28][190-E-F]

2. For Reorganisation of the administrative set up of Union Territory of Delhi, the Government of India appointed a Committee, namely, Balakrishnan Committee, which submitted its report on 14.12.1989 to the Home Ministry. The Report of the Balakrishnan Committee was the basis for enacting 69th Constitution Amendment. In the Statement of Objects and Reasons of the 69th Constitution Amendment, the Report of Balakrishnan Committee was specifically referred to and relied on. Balakrishnan Committee Report while elaborating the expression “insofar as any such matters are applicable in relation to Union Territories” noticed that apart from entries specifically excluded, there were other entries, which ipso facto fell outside the purview of the Delhi Legislative Assembly. Entry 41 of List II of VIIth Schedule of the Constitution was specifically considered in the Balakrishnan Committee Report and the Report opined that the said entry is not applicable to the Union Territory. The Report further opined that services in connection with the administration of the Union Territory of Delhi will be part of the services of the Union even after the setting up of a Legislative Assembly with a Council of Ministers. The Balakrishnan Committee Report which led into passing of the 69th Constitution (Amendment) Act categorically 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 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. [Paras 30, 33, 34, 35, 36][191-G-H; 193F; 194-B, G-H; 195-D-E]

3. The Delhi Administration Subordinate Ministerial/Executive Service Rules, 1967 were also framed by the President in exercise of power conferred by Article 309 of the Constitution of India. Rule 2(d) provided that “Commission” means the Union Public Services Commission. There has been subsequent Rules framed for services under the Union Territories. There being also Rules for Services combined to different Union Territories. The Parliament was well aware at the time when Constitution 69th (Amendment) Act was enacted that the term “services” in the Union Territories are Union Services and there are no State services and the Commission for Services means the Union Public Services Commission. [Para 37][195-F-H]

4. The distribution of Legislative powers of State and the Parliament is provided under Articles 245 and 246 of the Constitution. 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 the Union Territories and extent and controls of powers to be given to the Union Territories by constitutional amendment. [Paras 40, 41][198-C, H; 199-A-B]

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

Bir Singh v. Delhi Jal Board and Others (2018) 10 SCC

312 – relied on.