IMPORTANT POINT
Executive power of GNCTD extends to all subject matters contained in List II (except Entry 1, 2 and 18) as well as List III (wherein it has concurrent jurisdiction along with Central Government).

Headnote:Per A. K. Sikri, J.
       Constitution of India – Articles 145(3), 239, 239AA, 239AB, 356 – Government of National Capital Territory of Delhi Act, 1991 – Sections 49 and 52 – Status and administration of National Capital Territory of Delhi (NCTD) – Appropriate Government in respect of Union Territories shall be Central Government only – In all those matters which do not fall within discretionary jurisdiction of LG, LG is bound to act on aid and advice of Council of Ministers – Executive power of GNCTD extends to all subject matters contained in List II (except Entry 1, 2 and 18) as well as List III (wherein it has concurrent jurisdiction along with Central Government) – Even when executive wing of Delhi Government takes a decision, LG is also empowered to form its opinion ‘on any matter’ which may be different from 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 he difference is so fundamental to governance of Union Territory that it deserved to be escalated to President – LG is not expected to differ routinely with decision of Council of Minister – Difference should be on cogent and strong reasons – However, this limitation pertains to LG’s exercise of power – There may be contingencies where LG and his Ministers may differ – In such circumstances, LG is supposed to refer the matter to President for decision and act according to decision given thereon by President – Final say, in case of different between LG and Council of Ministers, is that of President – LG is expected to honour wisdom of council of ministers – He is also expected to clear files expeditiously and is not supposed to sit over it unduly – Power to appoint a Public Prosecutor is relatable to Entries 1 and 2 of List III – High Court has rightly held that in respect of these entries, Government of NCT of Delhi has legislative competence under Article 239AA of Constitution and that LG under Article 239AA(4) of Constitution shall act on the aid and advice of Council of Ministers – This conclusion of High Court is in tune with judgment of Constitution Bench – Lieutenant Governor, while appointing Special Public Prosecutor, is to act on aid and advice of Council of Ministers. (Paras 115, 120, 161, 163 and 172)
       Per Ashok Bhushan, J.( Partly Dissenting View)
       Constitution of India – Articles 145(3), 239, 239AA, 239AB, 356 – Government of National Capital Territory of Delhi Act, 1991 – Sections 49 and 52 – Status and administration of National Capital Territory of Delhi (NCTD) – All entries of List II and List III are available to Legislative Assembly for exercising Legislative power except when an entry is excluded by implication or by any express provision – There is difference between Legislative powers of the State and Union Territories which is apparent by use of different expressions in Constitution – While inserting Article 239AA in Constitution, Parliament was well aware about functioning of Union Territories and extent and controls of powers to be given to Union Territories by constitutional amendment – Having held that Entry 41 of List II of Seventh Schedule of Constitution is not available to Legislative Assembly of GNCTD, there is no occasion to exercise any Executive power with regard to ‘’Services’’ by GNCTD, since Executive power of 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 Parliament or it may exercise those Executive powers, which have been delegated to it. (Paras 24, 41 and 42)
       Facts of Case:
       In impugned judgment rendered by High Court of Delhi in writ petitions, main issue related to status of National Capital Territory of Delhi (NCTD) and in, particular, about administration of NCTD, powers exercisable by and functions of elected Government of NCTD (GNCTD) vis-à-vis Central Government, in juxtaposition to Lieutenant Governor (LG) of GNCT, as nominee of President of India). This issue centered around interpretation that needed to be given to Article 239AA of Constitution of India.
       Findings of Court:
       Though, we have accepted interpretation, as given by High Court in respect of provisions of GC Act while discussing the expression ‘State Government’ in context of COI Act, this position is clarified while dealing with the same expression occurring in Section 2(5) of Electricity Act, 2003. It would depend upon language used in defining State Government in a particular enactment.
       Result : Appeals disposed of. Reference answered

JUDGMENT

A.K. SIKRI, J.

Prologue

All these appeals arise out of the judgment dated August 04, 2016 rendered by the High Court of Delhi in writ petitions filed before it under Article 226 of the Constitution of India. We would refer to the subject matter of those writ petitions and the manner in which the High Court dealt with and decided the same at the appropriate stage. However, it would be pertinent to point out that in the said impugned judgment, main issue related to the status of National Capital Territory of Delhi (NCTD) and in, particular, about administration of NCTD, powers exercisable by and functions of the elected Government of NCTD (GNCTD) vis-a-vis the Central Government (or to put it more precisely, in juxtaposition to the Lieutenant Governor (LG) of GNCTD, as nominee of the President of India). This issue centered around the interpretation that needed to be given to Article 239AA of the Constitution of India.

(2) Undoubtedly, NCTD was and remains Union Territory and continues to be governed by Part VIII of the Constitution which pertains to ‘the Union Territories’. Article 239, which substituted the original Article by the Constitution (Seventh Amendment) Act, 1956, w.e.f., 01 November, 1956 deals with administration of Union Territories. As the nomenclature itself suggests, such territories are that of ‘Union”, i.e., Union of India. That is why Article 239 stipulates that every Union Territory is to be administered by the President acting, to such extent as he thinks fit, through an Administrator to be appointed by him with such designation as he may specify. The opening words of Article 239, however, are ‘save as otherwise provided by Parliament by law’, which means that Parliament by law can provide different schemes of administration for such Union Territories, i.e., different than what is stated in Article 239. In the year 1962, Article 239A was inserted, providing a little departure from the Scheme of administration contained in Article 239, insofar as Union Territory of Puducherry is concerned. Likewise by the Constitution (Sixty Ninth Amendment) Act, 1991 special provision with respect to Delhi stood incorporated. This Article, inter alia, provides for a Legislative Assembly for NCTD, Legislative Assembly which comprises of Members who are elected representatives. It means that voters of NCTD elect their representatives to the Legislative Assembly.

(3) The seminal issue which arose for consideration before the High Court in the writ petitions concerned the powers exercisable by such elected Government and the manner in which NCTD is to be administered. As noted above, as per Article 239, it is the President of India which administers a Union Territory and he can do so through an Administrator to be appointed by him with appropriate designation. Such a designation generally is that of Administrator or Lieutenant Governor. In respect of Delhi, designation bestowed is that of Lieutenant Governor. With the aforesaid special provision inculcated by the insertion of Article 239AA and by providing for Legislative Assembly, the moot question arose as to what are the powers of the elected government of Delhi vis-a-vis the Lieutenant Governor of Delhi.

(4) To state in a nutshell and in precise manner, the High Court of Delhi held that since NCTD remains a Union Territory, it is the President who continues to administer NCTD as well as Territory of the Union, i.e., the Central Government and his nominee, namely, the Lieutenant Governor enjoys the overlapping powers. When these appeals came up before the Division Bench of this Court, the Division Bench found that issues raised are of seminal constitutional importance and needed to be referred to a Constitution Bench in terms of the provisions contained in Clause 5(5) of Article 143 of the Constitution. The matters were, accordingly, referred to the Constitution Benc

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2019 Supreme(SC) 164

IMPORTANT POINTExecutive power of GNCTD extends to all subject matters contained in List II (except Entry 1, 2 and 18) as well as List III (wherein it has concurrent jurisdiction along with Central Government).

Cases Referred (12)

IMPORTANT POINT
Executive power of GNCTD extends to all subject matters contained in List II (except Entry 1, 2 and 18) as well as List III (wherein it has concurrent jurisdiction along with Central Government).