Holding

The executive power of the Government of NCT of Delhi is co-extensive with its legislative power under Article 239AA, but subject to the proviso and the constitutional scheme, and specific issues are decided accordingly, with the LG acting on aid and advice of the Council of Ministers except in matters of discretion.

Summary

The case involves multiple appeals arising from a Delhi High Court judgment concerning the division of powers between the Government of National Capital Territory of Delhi (GNCTD) and the Lieutenant Governor (LG) under Article 239AA of the Constitution. The Supreme Court Constitution Bench had earlier interpreted Article 239AA, and the regular bench now decides specific issues. The Court held that the executive power of GNCTD is co-extensive with its legislative power, except for the three excluded entries (public order, police, land). On the issue of 'Services', the Court carved out a mechanism for transfers and postings, with higher-level officers handled by the LG and lower-level officers by the GNCTD through a Civil Services Board. The notifications limiting the jurisdiction of the Anti-Corruption Branch (ACB) to GNCTD employees were upheld, as the subject falls under 'Police' (Entry 2 List II) which is excluded from GNCTD's domain. The Court held that GNCTD is not an 'appropriate Government' under the Commission of Inquiry Act, 1952, but is the appropriate government under the Electricity Act, 2003 for issuing directions to the Delhi Electricity Regulatory Commission. The notification revising circle rates for agricultural land under the Stamp Act was set aside because it was issued without seeking the LG's views. The power to appoint Special Public Prosecutors under Section 24 CrPC lies with the LG, but must be exercised on the aid and advice of the Council of Ministers. The appeals were disposed of accordingly.

Issues considered

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?
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?
Whether the GNCTD is an 'appropriate Government' under the Commission of Inquiry Act, 1952?
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 to the State Commission is with the Government of NCT of Delhi?
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?
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.?

Legislation cited

All India Services (Joint Cadre) Rules, 1972s. Rule 2, s. Rule 4, s. Rule 5(1)
Code of Criminal Procedure, 1973s. Section 156, s. Section 24, s. Section 2(s)
Commission of Inquiry Act, 1952s. Section 2(a)
Constitution of Indias. Article 145(3), s. Article 163, s. Article 239, s. Article 239AA, s. Article 239AB, s. Article 246, s. Article 309, s. Article 312, s. Article 320, s. Article 73, s. Seventh Schedule List I Entry 91, s. Seventh Schedule List II Entry 1, s. Seventh Schedule List II Entry 18, s. Seventh Schedule List II Entry 2, s. Seventh Schedule List II Entry 41, s. Seventh Schedule List II Entry 63, s. Seventh Schedule List III Entry 2, s. Seventh Schedule List III Entry 45
Delhi, Andaman & Nicobar Islands, Lakshadweep, Daman & Diu and Dadra & Nagar Haveli Civil Services Rules, 2003 (DANICS Rules)s. Rule 11, s. Rule 12, s. Rule 13
Delhi Electricity Reforms Act, 2000s. Section 10, s. Section 11, s. Section 12, s. Section 2(d), s. Section 2(g)
Delhi Police Act, 1978s. Section 10, s. Section 11, s. Section 147, s. Section 149, s. Section 15, s. Section 150, s. Section 4
Delhi Stamp (Prevention of Under-Valuation of Instruments) Rules, 2007s. Rule 4
Electricity Act, 2003s. Section 107, s. Section 108, s. Section 2(5)
General Clauses Act, 1897s. Section 3(58), s. Section 3(60), s. Section 3(62A), s. Section 3(8)
Government of National Capital Territory of Delhi Act, 1991s. Section 41, s. Section 44, s. Section 45, s. Section 49, s. Section 52
Indian Administrative Services (Cadre) Rules, 1954s. Rule 2(c), s. Rule 7
Indian Stamp Act, 1899s. Section 27
Prevention of Corruption Act, 1988
Transaction of Business Rules, 1993s. Rule 23, s. Rule 46

Subjects

Constitution of IndiaArticle 239AAUnion TerritoryNational Capital Territory of DelhiExecutive PowerLegislative PowerServicesAnti-Corruption BranchCommission of InquiryElectricity ActStamp DutyCircle RatesSpecial Public ProsecutorLieutenant GovernorCouncil of MinistersFederalismConstitutional Interpretation

Judgment

28 [2019]
SUPREME COURT 3 S.C.R. 28
REPORTS [2019] 3 S.C.R.

A GOVT. OF NCT OF DELHI
v.
UNION OF INDIA
(Civil Appeal No. 2357 of 2017)
B FEBRUARY 14, 2019
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Constitution of India – Seventh Schedule, List II, Entry 41 –
Exclusion of ‘Services’ relatable to Entry 41 of List II of the Seventh
Schedule from the legislative and executive domain of the NCTD,
C
by Notification dated May 21, 2015 – Validity of, challenged – The
said Notification in respect of ‘services’ mentions about Union
Territory cadre consisting of Indian Administrative Service and
Indian Police Service Personnel – The notification also refers to
DANICS and DANIPS – All these services are administered by
D Central Government through Ministry of Home Affairs – Insofar as
allocation of personnel belonging to these 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 – Claim of GNCTD is that it has control over these personnel
E
after they are allocated to NCTD – However, claim of Union of
India is that it comes within the discretionary powers of the
Lieutenant Governor (LG) as the subject matter is not covered by
Entry 41 of List II – Held: (Per A.K. Sikri, J.) – Entry 41 of List II
deals with ‘State Public Services’ and ‘State Public Service
F Commission’ – It is undisputed that State Public Service Commission
does not exist in NCTD – When dealing with All India Services and
DANICS Services etc., it is also doubtful to mention it as State Public
Service – GNCTD 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
G
the LG – 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 and the Council of Ministers with Chief
H
28
GOVT. OF NCT OF DELHI v. UNION OF INDIA 29

Minister as Head on the other hand, for the smooth functioning of A
the system, just and fair mechanism to be carved out – 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 LG and the file submitted to him directly – For other
levels, including DANICS officers, the files can be routed through
B
the Chief Minister to the LG – In case of difference of opinion
between the LG and the Chief Minister, the view of the LG would
prevail and the Ministry of Home Affairs would issue a suitable
notification in that 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 C
Secretary (Services); for Grades II and I, the transfers and postings
are done by the Chief Secretary – For greater transparency, a Civil
Services Board can be formed which can be headed by the Secretary
(Services) for Grades IV and III officials; by the Chief Secretary
for Grades II and I level officers – The Board can decide on the
D
transfer and postings of these DASS cadre officers – Similar Board
can also be formed for DANICS officers – 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 – (Per Ashok Bhushan, J.)(Partly Dissenting) –
Entry 41 of List II of the Seventh Schedule is not available to the E
Legislative Assembly of GNCTD – Having held so, 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
Art.239AA(4) extend in relation to matters with respect to which
Legislative Assembly has power to make laws – With regard to
F
“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 – Constitution of India – Art.239AA – Indian Administrative
Services (Cadre) Rules, 1954 – r.2(c).
Constitution of India – Seventh Schedule, List II, Entry 2 – G
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
H
30 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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
B
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
C 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
D 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
E – 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,
F 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
G 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
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 31

provisions do not provide how parallel jurisdiction of two police A
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
B
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 – C
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)
D
– 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 E
‘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 F
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 G
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
H
32 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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
B
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,
C 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
D 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
E 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
F 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
G 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
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 33

is not expected to differ routinely with the decision of Council of A
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
B
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 – C
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 D
– 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 – E
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 F
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 G
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
H
34 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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
B 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
C 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
D 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
E 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]
F 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
G
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
H State Government concerned. In the context of Article 312 of
GOVT. OF NCT OF DELHI v. UNION OF INDIA 35

the Constitution, this Court has held in Prem Kumar Jain case A
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 B
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 C
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 D
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 E
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, F
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 G
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
H
36 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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 &
B
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
C 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 Anti-
Corruption Branch (ACB) of the NCTD to investigate offences
D 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
E 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
F 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
G 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
H (which though in constitutional term remains Union Territory),
Article 239AA (which gives such a status) itself excludes Entry 2
GOVT. OF NCT OF DELHI v. UNION OF INDIA 37

from the domain of NCTD. Thus, in respect of ‘Police’, NCTD A
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 B
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 C
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 D
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 E
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 F
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 G
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.
H
38 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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
B
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
C 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
D
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,
E 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
F 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
G 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]
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 39

Stainislaus v. State of Madhya Pradesh and Others A
(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 B
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, C
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. D
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’ E
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 F
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; 149- G
B; 156-D]
Goa Sampling Employees’ Association v. General
Superintendence Co. of India (1985) 1 SCC 206
: [1985] 2 SCR 373 – relied on.
H
40 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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.
B 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
C
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
D 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
E
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
F 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
G
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
H here means GNCTD i.e. LG who is supposed to act on the aid
GOVT. OF NCT OF DELHI v. UNION OF INDIA 41

and advice of the Council of Ministers. Under this Act, Delhi A
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
B
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] C
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 D
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 E
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 F
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.
G
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’ H
42 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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
B
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
C 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
D 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
E 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
F 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
G NCTD. Mutual cooperation, thus, becomes essential for the
effective working of the system. [Para 163][159-B, E-H; 160-A-
B]
6: Whether it is the Lieutenant Governor or the GNCTD
which has the power to appoint the Special Public Prosecutor
H under Section 24 of the Cr.PC.?[Para 163][172-C]
GOVT. OF NCT OF DELHI v. UNION OF INDIA 43

As per the provisions of Section 24(8) of Cr.P.C., power to A
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
B
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 C
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
D
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 E
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]
F
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. G

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 H
44 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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
B
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
C 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
D 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
E 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
F 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
G 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
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 45

is applicable in relation to Union Territories” as occurring in A
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
B
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; 193-
F; 194-B, G-H; 195-D-E]
3. The Delhi Administration Subordinate Ministerial/
Executive Service Rules, 1967 were also framed by the President C
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. D
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]
E
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 F
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 G
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]

H
46 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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
B
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
C 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]
D Bir Singh v. Delhi Jal Board and Others (2018) 10 SCC
312 – relied on.
Case Law Reference
In the judgment of A. K Sikri, J.

E [1975] 1 SCR 814 referred to Para 15
[1996] 10 Suppl. SCR 472 referred to Para 16
AIR 1995 SC 549 referred to Para 31
(2018) 10 SCC 312 referred to Para 81
F [1976] Suppl. SCR 166 relied on Para 83
[1964] 1 SCR 926 referred to Para 97
[1977] 2 SCR 611 relied on Para 111
[2010] 4 SCR 1042 relied on Para 111
G [2005] 2 Suppl. SCR 79 referred to Para 125
[1985] 2 SCR 373 relied on Para 133
[2016] 6 SCR 1 referred to Para 141
[2004] 3 SCR 956 referred to Para 155
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 47

In the judgment of Ashok Bhushan, J. A
(2018) 10 SCC 312 relied on Para 37
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2357
of 2017.
From the Judgment and Order dated 04.08.2016 of the High
Court of Delhi at New Delhi in Writ Petition (C) No. 5888 of 2015. B
WITH
Cont. Petition (C) No. 175 of 2016 in Writ Petition (Criminal) No.
539 of 1986, Civil Appeal Nos. 2360, 2359, 2363, 2362, 2358, 2361, 2364
of 2017 and Criminal Appeal No. 277 of 2017.
Colin Gonsalves, Mrs. Indira Jaising, P. Chidambaram, Kapil Sibal, C
Shekhar Naphade, Maninder Singh, Rakesh Dwivedi, C. A. Sundaram,
Sr. Advs., Ms. Sita Nair Pal, Satya Mitra, Ms. Devika Ramachandran,
Chirag M. Shroff, Naveen R. Nath, B. Krishna Prasad, Shadan Farasat,
Prateek K. Chadha, Ms. Nitya Ramakrishnan, Rahul Mehra, Ashwath
Sitaraman, Nizam Pasha, Ms. Anusha Ramesh, Ms. Nehmat Kaur, D
Abhikalp, Siddharth, . Ms. Rudrakshi Deo, Ms. Shruti Narayan, Parv
Gupta, R. Balasubramanian, Mrs. Binu Tamta, Mrs. Madhvi Diwan,
Ritesh Kumar, Prabhas Bajaj, Ms. Kanika Saran, P. Pandey,
Ms. A. Chawla, S. Das Gupta, B.V. Balaramdas, Ms. Binu Tamta,
Ms. S. Pathak, Eklavaya Dwivedi, Mrs. Anil Katiyar, Raghav Shankar,
K. R. Sasiprabhu, Abhishek D., Vishnu Sharma, Ms. Rohini Musa, E
Abhishek Gupta, Zafar Inayat, Arjun Singh, Gautam, Mrs. Gargi Khanna,
Nikhil Nayyar, Dr. Monika Gusain, Senthil Jagadeesan, Advs. for the
appearing parties.
The Judgment of the Court was delivered by
A. K. SIKRI, J. F
Prologue
1. 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 G
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
H
48 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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.
B 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.,
C 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
D 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
E 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
F 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
G 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.
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 49
[A. K. SIKRI, J.]

4. To state in a nutshell and in precise manner, the High Court of A
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
B
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 Bench to answer the aforesaid
question, namely, ambit and scope of the powers of the GNCTD in
juxtaposition to that of the Lieutenant Governor. The Constitution Bench C
has given the answers to the various nuances of the otherwise thorny
and ticklish issues, vide its judgment dated July 04, 2018. There are
three opinions. The majority opinion is penned by Justice Dipak Misra,
Chief Justice of India (as his Lordship then was) to which Justice
Khanwilkar and one of us (Justice A.K. Sikri) concurred. Two other
D
separate opinions are rendered by Justice Dr. D.Y. Chandrachud and
one of us (Justice Ashok Bhushan). After giving answers to the moot
questions that arise, all these appeals were directed to be listed before
the Regular Bench for deciding the individual issues and disputes that
arise in these appeals. This is how the matters were heard, on its own
merits, depending upon subject matter of each of these appeals, by this E
Bench. We propose to decide these disputes by means of the present
judgment.
Issues:
5. At this juncture, we would like to state in brief the precise
subject matter of these appeals: F

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 G
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
H
50 SUPREME COURT REPORTS [2019] 3 S.C.R.

A reproduce the same as that captures the essence of subject matter of
dispute in each of the writ petition.
S.No . Case No . Pa rties Im pugned o rder/ acti on
1. W.P.(C) No . GN CT D No tificatio ns dated 21 .0 5.2 01 5
58 88 /20 15 vs . U OI an d 2 3.07 .2 0 14 is sued by the
Go vt. of In di a, M in istry o f Ho me
B Affairs emp ow ering the Lt .
Go verno r to ex ercis e the p owers
in resp ect o f matters conn ected
with 'Serv ices' and directing the
ACB Po lice Station n ot to take
co gni zan ce o f o ffences again st
o fficials of Central G ov ern men t.
C 2. W.P.(C) No . Rajen der No tificatio n dated 11 .0 8.2 01 5
78 87 /20 15 Prashad vs . is sued b y the D irect orat e o f
GN CT D & Vi gilance, GNC T D u nd er the
Ors. Co mm iss ion s of Inq uiry Act , 1 95 2
with ou t pl acin g before the
L ieuten ant Gov ern or fo r h is
vi ews /con curren ce.
D 3. W.P.(C) No . Nares h No tificatio n dated 04 .0 8.2 01 5
79 34 /20 15 Kum ar vs . is sued by th e Reven ue
GN CT D & Departmen t, G NC TD rev isin g
Ors. mi nim um rates o f ag ricu ltu ral
lan d (circle rates) un der the
p ro vis ion s of Ind ian Stam p Act,
1 89 9 and Del hi Stamp (Prev en tio n
E o f Un dervalu ation of In strum ent)
Ru les w ith ou t p lacin g b efore the
L ieuten ant Gov ern or fo r h is
vi ews /con curren ce.
4. W.P.(C) No . Sand eep Order p assed b y th e D ep artm ent
81 90 /20 15 Tiwari vs . o f Po wer, GNCT D u nd er Delhi
GN CT D & E lectricit y Reforms Act, 2 00 0
F Ors. read with Delh i E lectricity
Refo rm s (T ran sfer Sch eme) R ules ,
2 00 1 ap po intin g th e N om inee
Directors on Bo ard o f E lectricity
Distrib utio n Co mpan ies wi tho ut
p laci ng b efo re th e L ieuten ant
Go verno r for h is
G vi ews /con curren ce.
5. W.P.(C) No . M .A. No tificatio n dated 11 .0 8.2 01 5
83 82 /20 15 Usm an i vs . is sued b y the D irect orat e o f
UO I & Anr. Vi gilance, GNC T D u nd er the
Co mm iss ion s of Inq uiry Act , 1 95 2
with ou t pl acin g before the
L ieuten ant Gov ern or fo r h is
H vi ews /con curren ce.
GOVT. OF NCT OF DELHI v. UNION OF INDIA 51
[A. K. SIKRI, J.]

6. W.P.(C) No. UOI vs. Notification dated 11.08.2015 A
8867/2015 GNCTD issued by the Directorate of
& Anr. Vigilance, GNCTD under the
2 01 5 Commissions of Inquiry Act,
the 1952 without placing before the
Ho me Lieutenant Governor for his
Lt . views/concurrence. B
owers 7. W.P.(C) No. Sandeep Policy Directions dated
ected 9164/2015 Tiwari vs. 12.06.2015 issued by the
g the
GNCTD Department of Power, GNCTD
take
gain st & Ors under Section 108 of Electricity
en t. Act, 2003 without placing before
the Lieutenant Governor for his
2 01 5 C
views/concurrence.
e of
the 8. W.P.(C) No. Ramakant Notification dated 22.12.2015
1 95 2 348/2016 Kumar vs. issued by the Directorate of
the GNCTD Vigilance, GNCTD under
h is Commission of Inquiry Act,
1952 constituting the
2 01 5 Commission of Inquiry without D
ven ue placing before the Lieutenant
v isin g Governor for his
ltu ral views/concurrence.
the 9. W.P.(Crl.) GNCTD Order passed by the Lt.
Act,
No. vs. Nitin Governor, NCT of Delhi under
n tio n
2099/2015 Manawat Section 24 of Cr.P.C. appointing
m ent) E
e the a Special Public Prosecutor to
h is conduct the trial in FIR
No.21/2012 in the Special Court
tm ent under PC Act
Delhi
2 00 0
ricity
7. From the above, it can be discerned that following issues arise F
R ules , for consideration:
m inee
ricity (i) The powers of GNCTD vis-a-vis Lieutenant Governor in respect
tho ut of matters connected with ‘services’. It may be mentioned, at
en ant
this juncture itself that in Delhi there is no Public Service
h is
Commission. Since it is the Union Territory, the manpower/public
G
2 01 5 servants which are assigned to Delhi are either those who belong
e of to All India Services like Indian Administrative Service, Indian
the Police Service etc. or those who are recruited for Union Territories,
1 95 2
the commonly known as NCT of Delhi, Andaman & Nicobar Islands,
h is Lakshadweep, Daman & Diu and Dadra & Nagar Haveli Civil
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52 SUPREME COURT REPORTS [2019] 3 S.C.R.

A Service (DHANICS). Admittedly these officers/public servants
do not belong to Union Territory of Delhi exclusively or, for that
matter, at all. They are placed at the disposal of NCTD by the
Central Government. To this extent there is no dispute. However,
bone of contention is about their mobility, i.e. their posting within
Delhi itself from one place/department to other. To put it otherwise,
B
the issue is as to whether such posting orders are to be passed by
the President of India (or for that matter the Lieutenant Governor)
or it is the Government of NCTD which is competent to exercise
such a power once the manpower is assigned to it.
(ii) Other issue relates to the setting up of Anti-Corruption Bureau
C Police Station (ACB Police Station). Vide Notifications dated May
21, 2015 and July 23, 2014 the Government of India, Ministry of
Home Affairs empowered the Lieutenant Governor to exercise
such a power and directed ACB Police Station not to take
cognizance of offences against officials of Central Government.
D These Notifications were challenged by the GNCTD on the ground
that ACB Police Stations are empowered to take cognizance of
offences against officials of the Central Government as well, so
long as they are posted in Delhi.
(iii) Another dispute between the GNCTD and the Central
E Government arises out of Commission of Inquiry Act, 1952 (COI
Act). It is : Whether GNCTD is empowered to set up Commission
of Inquiry under the said Act of its own and without placing the
matter before the Lieutenant Governor for his views/concurrence.
(iv) Delhi Electricity Reforms Act, 2011 is enacted which is State
F Legislative. Delhi Electricity Reforms (Transfer Schemes) Rules,
2001 have also been framed under this Act. The GNCTD issued
orders under the said Act and Rules appointing the nominee
Directors on the Board of Electricity Distribution Companies
without placing the matter before the Lieutenant Governor for his
views/concurrence. The competence of the GNCTD to pass such
G executive order is another subject matter of dispute.
(v) Another area of conflict is about the appointment of Public
Prosecutors under Section 24 of the Code of Criminal Procedure.
Issue is as to whether this power lies with the Lieutenant Governor
to the exclusion of GNCTD or it is the GNCTD which is competent
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 53
[A. K. SIKRI, J.]

to appoint Public Prosecutors, including Special Public Prosecutors A
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 B
(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 :
C
“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.
D
(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.
E
239-AA. Special provisions with respect to Delhi.—(1) As from
the date of commencement of the Constitution (Sixty-ninth
Amendment) Act, 1991, the Union territory of Delhi shall be called
the National Capital Territory of Delhi (hereafter in this Part
referred to as the National Capital Territory) and the administrator
thereof appointed under Article 239 shall be designated as the F
Lieutenant Governor.
(2)(a) There shall be a Legislative Assembly for the National
Capital Territory and the seats in such Assembly shall be filled by
members chosen by direct election from territorial constituencies
in the National Capital Territory. G
(b) The total number of seats in the Legislative Assembly, the
number of seats reserved for Scheduled Castes, the division of
the National Capital Territory into territorial constituencies
(including the basis for such division) and all other matters relating
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54 SUPREME COURT REPORTS [2019] 3 S.C.R.

A to the functioning of the Legislative Assembly shall be regulated
by law made by Parliament.
(c) The provisions of Articles 324 to 327 and 329 shall apply in
relation to the National Capital Territory, the Legislative Assembly
of the National Capital Territory and the members thereof as they
B apply, in relation to a State, the Legislative Assembly of a State
and the members thereof respectively; and any reference in
Articles 326 and 329 to ‘appropriate Legislature’ shall be deemed
to be a reference to Parliament.
(3)(a) Subject to the provisions of this Constitution, the Legislative
C Assembly shall have power to make laws for the whole or any
part of the National Capital Territory with respect to any of the
matters enumerated in the State List or in the Concurrent List in
so far as any such matter is applicable to Union territories except
matters with respect to Entries 1, 2 and 18 of the State List and
Entries 64, 65 and 66 of that List in so far as they relate to the said
D Entries 1, 2 and 18.
(b) Nothing in sub-clause (a) shall derogate from the powers of
Parliament under this Constitution to make laws with respect to
any matter for a Union territory or any part thereof.

E (c) If any provision of a law made by the Legislative 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
F 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
G 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
H repealing the law so made by the Legislative Assembly.
GOVT. OF NCT OF DELHI v. UNION OF INDIA 55
[A. K. SIKRI, J.]

(4) There shall be a Council of Ministers consisting of not more A
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
B
law, required to act in his discretion:
Provided that in the case of difference of opinion between the
Lieutenant Governor and his Ministers on any matter, the
Lieutenant Governor shall refer it to the President for decision
and act according to the decision given thereon by the President
and pending such decision it shall be competent for the Lieutenant C
Governor in any case where the matter, in his opinion, is so urgent
that it is necessary for him to take immediate action, to take such
action or to give such direction in the matter as he deems
necessary.
(5) The Chief Minister shall be appointed by the President and D
the other Ministers shall be appointed by the President on the
advice of the Chief Minister and the Ministers shall hold office
during the pleasure of the President.
(6) The Council of Ministers shall be collectively responsible to
the Legislative Assembly. E

{(7)(a)} Parliament may, by law, make provisions for giving effect
to, or supplementing the provisions contained in the foregoing
clauses and for all matters incidental or consequential thereto.
{(b) Any such law as is referred to in sub-clause (a) shall not be F
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.}
(8) The provisions of Article 239-B shall, so far as may be, apply
in relation to the National Capital Territory, the Lieutenant Governor
G
and the Legislative Assembly, as they apply in relation to the Union
territory of {Puducherry}, the administrator and its Legislature,
respectively; and any reference in that article to ‘clause (1) of
Article 239-A’ shall be deemed to be a reference to this article or
Article 239-AB, as the case may be.”
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56 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 10. As pointed above, the Court in aforesaid Constitution Bench
judgment took note of the fact that with insertion of Article 239AA,
which gave special status to the Union Territory of Delhi known as
National Capital Territory of Delhi (NCTD), the NCTD has its own
Legislative Assembly which is elected body through the election process
by the voters of NCTD. The principal question, therefore, was as to
B
whether this amended constitutional provision had transformed the status
of Delhi and what is the extent and power which are to be accorded to
the Legislative Assembly as well as the Executive as a result of these
elections, i.e., Government of NCT of Delhi. In the majority opinion, it
was emphasised at the beginning itself that while entering into the process
C of interpretation of Article 239AA of the Constitution, the Court is
supposed to take aid of new tools 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-
D
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
E 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
F the judgment is as follows:
“15. On 12-12-1911, Delhi became the capital of India. Delhi
Tehsil and Mehrauli Thana were separated from Punjab and
annexed to Delhi headed by a Commissioner and it came to be
known as the Chief Commissioner’s province. In 1912, the Delhi
G Laws Act, 1912 came into force with effect from 1-10-1912
making certain laws prevalent in Punjab to be applicable to Delhi.
The Delhi Laws Act, 1915 empowered the Chief Commissioner,
Delhi to determine application of laws by issuing appropriate
notification in the Gazette of India. The Government of India Act,
1919 and the Government of India Act, 1935 retained Delhi as a
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 57
[A. K. SIKRI, J.]

Centrally administered territory. On coming into force of the A
Constitution of India on 26-1-1950, Delhi became a Part C State.
In the year 1951, the Government of Part C States Act, 1951 was
enacted providing, inter alia, for a Legislative Assembly in Delhi.
Section 21(1) of the 1951 Act empowered the Legislative Assembly
to make laws on all matters of List II of the Seventh Schedule of
B
the Constitution except (i) public order; (ii) police (including railway
police); (iii) constitution and powers of municipal corporations
and local authorities, etc. — public utility authorities; (iv) lands &
buildings vested in/in possession of the Union situated in Delhi or
New Delhi; (v) offences against laws about subjects mentioned
from (i) to (iv); and (vi) jurisdiction of courts with respect to the C
above matters and court fee thereon.
16. On 19-10-1956, the Constitution of India (Seventh Amendment)
Act, 1956 was passed to implement the provisions of the States
Reorganisation Act, 1956 which did away with Part A, B, C and
D States and only two categories, namely, States and Union D
Territories remained and Delhi became a Union Territory to be
administered by an Administrator appointed by the President. The
Legislative Assembly of Delhi and the Council stood abolished. In
the year 1953, the Government of Union Territories Act, 1963
was enacted to provide for Legislative Assemblies and Council of
Ministers for various Union Territories but the provisions of the E
said Act were not made applicable to Delhi. The Delhi
Administration Act, 1966 was enacted to provide for limited
representative Government for Delhi through a Metropolitan
Council comprising of 56 elected Members and five nominated
Members. In the same year, on 20-8-1966, the Ministry of Home F
Affairs issued S.O. No. 2524 that provided, inter alia, that the
Lieutenant Governor/Administrator/Chief Commissioner shall be
subject 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 G
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
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58 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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
B 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
C some of the eminent and knowledgeable persons whom we
interviewed. As these arguments are self-evident we find it
unnecessary to go into them in detail except those relating to
constitutional and financial aspects covered by them.
6.5.6. The important argument from the constitutional angle is
D based on the federal type of our Constitution under which there
is a constitutional division of powers and functions between
the Union and the State. If Delhi becomes a full-fledged State,
there will be a constitutional division of sovereign, legislative
and executive powers between the Union and the State of
Delhi. One of the consequences will be that in respect of matters
E in the State List, Parliament will have no power on jurisdiction
to make any law except in the special and emergency situations
provided for under the Constitution and to that extent the Union
Executive cannot exercise executive powers or functions. The
constitutional prohibition on the exercise of powers and
F functions will make it virtually impossible for the Union to
discharge its special responsibilities in relation to the National
Capital as well as to the nation itself. We have already indicated
in an earlier chapter the special features of the National Capital
and the need for keeping it under the control of the Union
Government. Such control is vital in the national interest
G irrespective of whether the subject-matter is in the State field
or Union field. If the administration of the National Capital is
divided into rigid compartments of State field and Union field,
conflicts are likely to arise in several vital matters, particularly
if the two Governments are run by different political parties.
H Such conflicts may, at times, prejudice the national interest….
GOVT. OF NCT OF DELHI v. UNION OF INDIA 59
[A. K. SIKRI, J.]

xx xx xx A
6.5.9. We are also impressed with the argument that Delhi as
the National Capital belongs to the nation as a whole and any
constituent State of the Union of which Delhi will become a
part would sooner or later acquire a predominant position in
relation to other States. Sufficient constitutional authority for B
Union intervention in day-to-day matters, however vital some
of them may be, will not be available to the Union, thereby
prejudicing the discharge of its national duties and
responsibilities.
xx xx xx C
LIEUTENANT GOVERNOR AND COUNCIL OF MINISTERS
6.7.19. As a necessary corollary to the establishment of a
responsible Government for Delhi 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 D
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 E
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- F
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
G
Ministers that should take decisions on such matters. However,
for Delhi, the following modifications of this general rule will
have to be adopted:
(i) Firstly, the requirement of acting on the aid and advice of
the Council of Ministers cannot apply to the exercise by the
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60 SUPREME COURT REPORTS [2019] 3 S.C.R.

A Administrator of any judicial or quasi-judicial functions. The
reason is obvious because in respect of such functions there is
no question of acting on the advice of another person.
(ii) Secondly, the requirement is only in relation to matters in
respect of which the Legislative Assembly has the powers to
B make laws. This power will be subject to the restrictions already
dealt with earlier in the Report. Accordingly, the Council of
Ministers will not have jurisdiction to deal with matters excluded
from the purview of the Legislative Assembly.
(iii) Thirdly, there is need for a special provision to resolve
C differences between the Administrator and his Council of
Ministers on any matter concerning the administration of Delhi.
Normally, the general principle applicable to the system of
responsible Government under the Constitution is that the Head
of the Administration should act as a mere constitutional
figurehead and will have to accept the advice of the Council of
D Ministers except when the matter is left to his discretion.
However, by virtue of Article 239 of the Constitution, the ultimate
responsibility for good administration of Delhi is vested in the
President acting through the Administrator. Because of this
the Administrator has to take a somewhat more active part in
E the administration than the Governor of a State. It is, therefore,
necessary to reconcile between the need to retain the
responsibility of the Administrator to the Centre in this regard
and the need to enforce the collective responsibility of the
Council of Ministers to the Legislature. The best way of doing
this is to provide that in case of difference of opinion which
F cannot be resolved between the Administrator and his Council
of Ministers, he should refer the question to the President and
the decision of the President thereon will be final. In cases of
urgency, if immediate action is necessary, the Administrator
may direct action to be taken pending such decision of the
G President. A provision of this kind was made for this very reason
not only in the 1951 Act, but also in the 1963 Act relating to the
Union Territories as well as in the 1978 Bill.”
12. The majority opinion thereafter took note of the arguments of
both sides. Discussion that followed thereafter was on the following
H aspects:
GOVT. OF NCT OF DELHI v. UNION OF INDIA 61
[A. K. SIKRI, J.]

• Ideals/principles of representative governance A
• Constitutional morality
• Constitutional objectivity
• Constitutional governance and the conception of legitimate
constitutional trust B
• Collective responsibility
• Federal functionalism and democracy
• Collaborative federalism
C
• Pragmatic federalism
• Concept of federal balance
• Interpretation of the Constitution
• Purposive interpretation D
• 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. E
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:
F
“Interpretation of Articles 239 and 239-A:
174. The aforesaid passages set two guidelines. First, it permits
judicial creativity and second, it mentions one to be conscious of
pragmatic realism of the obtaining situation and the controversy.
That apart, there is a suggestion to take note of the behavioural
G
needs and norms of life. Thus, creativity, practical applicability
and perception of reality from the societal perspective are the
warrant while engaging oneself with the process of interpretation
of a constitutional provision.

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62 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 175. To settle the controversy at hand, it is imperative that we dig
deep and perform a meticulous analysis of Articles 239, 239-A,
239-AA and 239-AB all of which fall in Part VIII of the Constitution
bearing the heading, “The Union Territories”. For this purpose, let
us reproduce the aforesaid Articles one by one and carry out the
indispensable and crucial task of interpreting them.
B
176. Article 239 provides for the administration of Union
Territories. It reads as follows:
“239. Administration of Union Territories.—(1) Save as
otherwise provided by Parliament by law, every Union
C 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
D 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.”
(emphasis supplied)
177. The said Article was brought into existence by the Constitution
E (Seventh Amendment) Act, 1956. Clause (1) of Article 239, by
employing the word “shall”, makes it abundantly clear that every
Union Territory is mandatorily to be administered by the President
through an Administrator unless otherwise provided by Parliament
in the form of a law. Further, clause (1) of Article 239 also
F stipulates that the said Administrator shall be appointed by the
President with such designation as he may specify.
178. Clause (2) thereafter, being a non obstante clause, lays down
that irrespective of anything contained in Part VI of the
Constitution, the President may appoint the Governor of a State
to act as an Administrator of a Union Territory which is adjacent
G
and/or contiguous to the State of which he is the Governor. The
Governor of a State who is so appointed as an Administrator of
an adjoining UT shall exercise his functions as an Administrator
of the said UT independently and Autonomously and not as per
the aid and advice of the Council of Ministers of the State of
H which he is the Governor.
GOVT. OF NCT OF DELHI v. UNION OF INDIA 63
[A. K. SIKRI, J.]

179. In this regard, the Court, in the case of Shamsher Singh A
(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 B
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 C
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 D
this, amended Article 239 lays down that subject to any law
enacted by Parliament every Union Territory shall be
administered by the President acting through an Administrator
appointed by him with such designation as he may specify. In
terms of clause (2) of Article 239 (amended), the President
can appoint the Governor of a State as an Administrator of an E
adjoining Union Territory and on his appointment, the Governor
is required to exercise his function as an Administrator
independently of his Council of Ministers. The difference in
the language of the unamended and amended Article 239 makes
it clear that prior to 1-11-1956, the President could administer F
Part C State through a Chief Commissioner or a Lieutenant
Governor, but, after the amendment, every Union Territory
is required to be administered by the President through
an Administrator appointed by him with such designation
as he may specify. In terms of clause (2) of Article 239
(amended), the President is empowered to appoint the G
Governor of State as the Administrator to an adjoining Union
Territory and once appointed, the Governor, in his capacity as
Administrator, has to act independently of the Council of
Ministers of the State of which he is the Governor.”
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64 SUPREME COURT REPORTS [2019] 3 S.C.R.

A “181. Now, let us proceed to scan Article 239-A of the Constitution
which deals with the creation of local legislatures or Council of
Ministers or both for certain Union Territories. It reads as follows:
“239-A. Creation of local legislatures or Council of
Ministers or both for certain Union Territories.—(1)
B Parliament may by law create for the Union Territory of
Puducherry—
(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
C 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
D Constitution.”
182. The aforesaid Article was brought into force by the
Constitution (Fourteenth Amendment) Act, 1962. Prior to the year
1971, under Article 239-A, Parliament had the power to create by
law legislatures and/or Council of Ministers for the then Union
E Territories of Himachal Pradesh, Tripura, Manipur, Goa and Daman
and Diu. Thereafter, on 25-1-1971, Himachal Pradesh acquired
Statehood and consequently, Himachal 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
F 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-
G
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,
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 65
[A. K. SIKRI, J.]

Lakshadweep and Chandigarh. However, we may hasten to add A
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 B
the present batch of appeals. The said Articles require an elaborate
interpretation and a thorough analysis to unearth and discover the
true intention of Parliament while inserting the said Articles, in
exercise of its constituent power, by the Constitution (Sixty-ninth
Amendment) Act, 1991. The said Articles read as follows: C
“239-AA. Special provisions with respect to Delhi.—(1) As
from the date of commencement of the Constitution (Sixty-ninth
Amendment) Act, 1991, the Union Territory of Delhi shall be
called the National Capital Territory of Delhi (hereafter in this
Part referred to as the National Capital Territory) and the D
Administrator thereof appointed under Article 239 shall be
designated as the Lieutenant Governor.
(2)(a) There shall be a Legislative Assembly for the National
Capital Territory and the seats in such Assembly shall be filled
by Members chosen by direct election from territorial E
constituencies in the National Capital Territory.
(b) The total number of seats in the Legislative Assembly, the
number of seats reserved for Scheduled Castes, the division of
the National Capital Territory into territorial constituencies
(including the basis for such division) and all other matters relating F
to the functioning of the Legislative Assembly shall be regulated
by law made by Parliament.
(c) The provisions of Articles 324 to 327 and 329 shall apply in
relation to the National Capital Territory, the Legislative Assembly
of the National Capital Territory and the Members thereof as
G
they apply, in relation to a State, the Legislative Assembly of a
State and the Members thereof respectively; and any reference
in Articles 326 and 329 to “appropriate Legislature” shall be
deemed to be a reference to Parliament.

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66 SUPREME COURT REPORTS [2019] 3 S.C.R.

A (3)(a) Subject to the provisions of this Constitution, the Legislative
Assembly shall have power to make laws for the whole or any
part of the National Capital Territory with respect to any of the
matters enumerated in the State List or in the Concurrent List
insofar as any such matter is applicable to Union Territories except
matters with respect to Entries 1, 2 and 18 of the State List and
B
Entries 64, 65 and 66 of that List insofar as they relate to the
said Entries 1, 2 and 18.
(b) Nothing in sub-clause (a) shall derogate from the powers of
Parliament under this Constitution to make laws with respect to
any matter for a Union Territory or any part thereof.
C
(c) If any provision of a law made by the Legislative 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,
D 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
E 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
F 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
G and advise the Lieutenant Governor in the exercise of his
functions in relation to matters with respect to which the
Legislative Assembly has power to make laws, except insofar
as he is, by or under any law, required to act in his discretion:

H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 67
[A. K. SIKRI, J.]

Provided that in the case of difference of opinion between the A
Lieutenant Governor and his Ministers on any matter, the
Lieutenant Governor shall refer it to the President for decision
and act according to the decision given thereon by the President
and pending such decision it shall be competent for the Lieutenant
Governor in any case where the matter, in his opinion, is so urgent
B
that it is necessary for him to take immediate action, to take
such action or to give such direction in the matter as he deems
necessary.
(5) The Chief Minister shall be appointed by the President and
other Ministers shall be appointed by the President on the advice
of the Chief Minister and the Ministers shall hold office during the C
pleasure of the President.
(6) The Council of Ministers shall be collectively responsible to
the Legislative Assembly.
(7)(a) Parliament may, by law, make provisions for giving effect D
to, or supplementing the provisions contained in the foregoing
clauses and for all matters incidental or consequential thereto.
(b) Any such law as is referred to in sub-clause (a) shall not be
deemed to be an amendment of this Constitution for the purposes
of Article 368 notwithstanding that it contains any provision which E
amends or has the effect of amending, this Constitution.
(8) The provisions of Article 239-B shall, so far as may be, apply
in relation to the National Capital Territory, the Lieutenant Governor
and the Legislative Assembly, as they apply in relation to the Union
Territory of Puducherry, the Administrator and its legislature, F
respectively; and any reference in that Article to “clause (1) of
Article 239-A” shall be deemed to be a reference to this Article
or Article 239-AB, as the case may be.
239-AB. Provision in case of failure of constitutional
machinery.—If the President, on receipt of a report from the
G
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 239-AA or of any law made in
pursuance of that Article; or
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68 SUPREME COURT REPORTS [2019] 3 S.C.R.

A (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 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
B
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)
C
“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
D 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
E 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
F 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
G 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.”

H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 69
[A. K. SIKRI, J.]

The aforesaid, as we perceive, really conceives of conferring A
special status on Delhi. This fundamental grammar has to be
kept in view when we penetrate into the interpretative
dissection of Article 239-AA and other articles that are pertinent
to understand the said provision.
187. The aforesaid, as we perceive, really conceives of B
conferring special status on Delhi. This fundamental grammar
has to be kept in view when we penetrate into the interpretative
dissection of Article 239-AA and other articles that are pertinent
to understand the said provision.”
15. After interpreting the provisions in the manner aforesaid, the
Court concentrated on the status of NCTD, in particular. In the process, C
it referred to earlier judgment in the case of Samsher Singh vs. State of
Punjab1, from which it culled out the powers of the Governor in a State
where the Governor was empowered to act ‘in his discretion’. It
observed:
“192. Thereafter, A.N. Ray, C.J. discussed the provisions of the D
Constitution as well as a couple of paragraphs of the Sixth Schedule
wherein the words “in his discretion” are used in relation to certain
powers of the Governor to highlight the fact that a Governor can
act in his discretion only when the provisions of the Constitution
so permit. E
193. In this context, we may refer with profit to the authority in
Devji Vallabhbhai Tandel v. Administrator of Goa, Daman &
Diu [Devji Vallabhbhai Tandel v. Administrator of Goa, Daman
& Diu, (1982) 2 SCC 222 : 1982 SCC (Cri) 403] . In the said
case, the issue that arose for consideration was whether the role
and functions of the Administrator stipulated under the Union F
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 G
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
1
(1974) 2 SCC 831 H
70 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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
B
given thereon by the President. If the President in a given
situation agrees with what the Administrator opines contrary
to the advice of the Council of Ministers, the Administrator
would be able to override the advice of the Council of Ministers
and on a reference to the President under the proviso, obviously
C the President would act according to the advice of the Council
of Ministers given under Article 74. Virtually, therefore, in
the event of a difference of opinion between the Council
of Ministers of the Union Territory and the Administrator,
the right to decide would vest in the Union Government
and the Council of Ministers of the Union Territory would
D
be bound by the view taken by the Union Government.
Further, the Administrator enjoys still some more power to act
in derogation of the advice of the Council of Ministers.
15. The second limb of the proviso to Section 44(1) enables the
Administrator that in the event of a difference of opinion between
E him and the Council of Ministers not only he can refer the matter
to the President but during the interregnum where the matter is in
his opinion so urgent that it is necessary for him to take immediate
action, he has the power to take such action or to give such
directions in the matter as he deems necessary. In other words,
during the interregnum he can completely override the advice of
F
the Council of Ministers and act according to his light. Neither the
Governor nor the President enjoys any such power. This basic
functional difference in the powers and position enjoyed by
the Governor and the President on the one hand and the
Administrator on the other is so glaring that it is not possible
G to hold on the analogy of the decision in Samsher Singh case
[Samsher Singh v. State of Punjab, (1974) 2 SCC 831 : 1974
SCC (L&S) 550] that the Administrator is purely a
constitutional functionary bound to act on the advice of the
Council of Ministers and cannot act on his own.”
(emphasis supplied)
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 71
[A. K. SIKRI, J.]

16. Thereafter, various other judgments were taken note of including A
Nine Judge Bench in NDMC v. State of Punjab2 case which specifically
deal with the status of NCTD. Following paragraphs on this aspect need
a reproduction:
“199. The Governor of a State, as per Article 163, is bound by
the aid and advice of his Council of Ministers in the exercise of B
his functions except where he is, by or under the Constitution,
required to exercise his functions or any of them in his discretion.
Thus, the Governor may act in his discretion only if he is so
permitted by an express provision 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 C
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 D
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).”
E
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 F
conterminous with the legislative power of the Delhi
Legislative Assembly which is envisaged in Article 239-
AA(3) and which extends over all but three subjects in the
State List and all subjects in the Concurrent List and, thus,
Article 239-AA(4) confers executive power on the Council of G
Ministers over all those subjects for which the Delhi Legislative
Assembly has legislative power.
205. The legislative power conferred upon the Delhi Legislative
Assembly is to give effect to legislative enactments as per the
2
(1997) 7 SCC 339
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72 SUPREME COURT REPORTS [2019] 3 S.C.R.

A needs and requirements of Delhi whereas the executive power is
conferred on the executive to implement certain policy decisions.
This view is also strengthened by the fact that after the Seventh
Amendment of the Constitution by which the words “Part C
States” were substituted by the words “Union Territories”, the
word “State” in the proviso to Article 73 cannot be read to
B
mean Union Territory as such an interpretation would
render the scheme and purpose of Part VIII (Union
Territories) of the Constitution infructuous.”
18. Next facet of discussion was on the essence of Article 239AA
of the Constitution. It would be of use to take note of the following
C discussion on this aspect:
“207. At the outset, we must declare that the insertion of Articles
239-AA and 239-AB, which specifically pertain to NCT of Delhi,
is reflective of the intention of Parliament to accord Delhi a sui
generis status from the other Union Territories as well as from
D the Union Territory of Puducherry to which Article 239-A is
singularly applicable as on date. The same has been authoritatively
held by the majority judgment in NDMC case [NDMC v. State
of Punjab, (1997) 7 SCC 339] to the effect that the NCT of
Delhi is a class by itself.
E xx xx xx
215. We have highlighted this difference to underscore and
emphasise the intention of Parliament, while inserting Article 239-
AA in the exercise of its constituent power, to treat the Legislative
Assembly of the National Capital Territory of Delhi as a set of
F elected representatives of the voters of NCT of Delhi and to treat
the Government of NCT of Delhi as a representative form of
Government.
216. The Legislative Assembly is wholly comprised of elected
representatives who are chosen by direct elections and are sent
G to Delhi’s Legislative Assembly by the voters of Delhi. None of
the Members of Delhi’s Legislative Assembly are nominated. The
elected representatives and the Council of Ministers of Delhi, being
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
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 73
[A. K. SIKRI, J.]

which recommended that though Delhi should continue to be a 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 B
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.
C
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 D
Legislative Assembly of Delhi is repugnant to any provision of
law made by Parliament, then the law made by Parliament shall
prevail and the law made by the Delhi Legislative Assembly shall
be void to the extent of repugnancy.
219. Thus, it is evident from clause (3) of Article 239-AA that E
Parliament has the power to make laws for NCT of Delhi on any
of the matters enumerated in the State List and the Concurrent
List and at the same time, the Legislative Assembly of Delhi also
has the legislative power with respect to matters enumerated
in the State List and the Concurrent List except matters with F
respect to entries which have been explicitly excluded from Article
239-AA(3)(a).
220. 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 G
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
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74 SUPREME COURT REPORTS [2019] 3 S.C.R.

A in respect of which the Lieutenant Governor is required to act in
his discretion.
221. The proviso to clause (4) of Article 239-AA stipulates that
in case of a difference of opinion on any matter between the
Lieutenant Governor and his Ministers, the Lieutenant Governor
B shall refer it to the President for a binding decision. Further, pending
such decision by the President, in any case where the matter, in
the opinion of the Lieutenant Governor, is so urgent that it is
necessary for him to take immediate action, the proviso makes
him competent to take such action and issue such directions as he
deems necessary.
C
222. A conjoint reading of Article 239-AA(3)(a) and Article 239-
AA(4) reveals that the executive power of the Government of
NCT of Delhi is coextensive with the legislative power of the
Delhi Legislative Assembly which is envisaged in Article 239-
AA(3) and which extends over all but three subjects in the
D State List and all subjects in the Concurrent List and, thus,
Article 239-AA(4) confers executive power on the Council
of Ministers over all those subjects for which the Delhi Legislative
Assembly has legislative power.
223. Article 239-AA(3)(a) reserves Parliament’s legislative power
E on all matters in the State List and Concurrent List, but clause
(4) nowhere reserves the executive powers of the Union
with respect to such matters. On the contrary, clause (4)
explicitly grants to the Government of Delhi executive powers in
relation to matters for which the Legislative Assembly has power
F 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,
G 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
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 75
[A. K. SIKRI, J.]

Parliament’s legislative power. Further, the ideas of pragmatic A
federalism and collaborative federalism will fall to the ground if
we are to say that the Union has overriding executive powers
even in respect of matters for which the Delhi Legislative Assembly
has legislative powers. Thus, it can be very well said that the
executive power of the Union in respect of NCT of Delhi is
B
confined to the three matters in the State List for which the
legislative power of the Delhi Legislative Assembly has been
excluded under Article 239-AA(3)(a). Such an interpretation
would thwart any attempt on the part of the Union Government to
seize all control and allow the concepts of pragmatic federalism
and federal balance to prevail by giving NCT of Delhi some degree C
of required independence in its functioning subject to the limitations
imposed by the Constitution.
xx xx xx
239. The proviso to Article 239-AA(4), we say without any fear
of contradiction, cannot be interpreted in a strict sense of the D
mere words employed treating them as only letters without paying
heed to the thought and the spirit which they intend to convey.
They are not to be treated as bones and flesh without nerves and
neurons that make the nerves functional. We feel, it is necessary
in the context to read the words of the provision in the spirit of E
citizenry participation in the governance of a democratic polity
that is republican in character. We may hasten to add that when
we say so, it should not be construed that there is allowance of
enormous entry of judicial creativity, for the construction one
intends to place has its plinth and platform on the Preamble and
precedents pertaining to constitutional interpretation and purposive F
interpretation keeping in view the conception of sense and spirit
of the Constitution. It is, in a way, exposition of judicial sensibility
to the functionalism of the Constitution. And we call it constitutional
pragmatism.”
19. The majority opinion also concentrated on the GNCTD Act, G
1991 as well as Transaction of Business of the GNCTD Rules, 1993.
Its analysis of various provisions of the said Act and Rules led to, inter
alia, the following discussion:

H
76 SUPREME COURT REPORTS [2019] 3 S.C.R.

A “244. Upon scanning the anatomy of the 1991 Act, we find
that the Act contains fifty-six sections and is divided into five
Parts, each dealing with different fields. Now, we may refer to
some of the provisions contained in Part IV of the 1991 Act titled
“Certain Provisions relating to Lieutenant Governor and Ministers”
which are relevant to the case at hand. Section 41 deals with
B
matters in which the Lieutenant Governor may act in his
discretion and reads thus:
“41. Matters in which Lieutenant Governor to act in his
discretion.—(1) The Lieutenant Governor shall act in his
discretion in a matter—
C
(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

D (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
E 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.
F 245. A careful perusal of Section 41 of the 1991 Act shows
that the Lieutenant Governor can act in his discretion only in
matters which fall outside the legislative competence of
the Legislative Assembly of Delhi or in respect of matters
of which powers are entrusted or delegated to him by
the President or where he is required by law to act in his
G
discretion or to exercise any judicial or quasi-judicial functions
and, therefore, it is clear that the Lieutenant Governor cannot
exercise his discretion in each and every matter and by and
large, his discretionary powers are limited to the three matters
over which the legislative power of the Delhi Legislative
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 77
[A. K. SIKRI, J.]

Assembly stands excluded by clause (3)(a) of Article 239- A
AA.
253. Another important provision is Section 49 of the 1991 Act
which falls under Part V of the Act titled “Miscellaneous and
Transitional Provisions” and stipulates the relation of the Lieutenant
Governor and his Ministers to the President. Section 49 reads B
thus:
“49. Relation of Lieutenant Governor and his Ministers to
President.—Notwithstanding anything in this Act, the
Lieutenant Governor and his Council of Ministers shall be under
the general control of, and comply with such particular C
directions, if any, as may from time-to-time be given by the
President.”
“254. Section 49 of the 1991 Act discloses that the set-up in NCT
of Delhi is one where the Council of Ministers headed by the
Chief Minister on one hand and the Lieutenant Governor on the D
other are a team, a pair on a bicycle built for two with the President
as its rider who retains the general control. Needless to say, the
President, while exercising this general control, acts as per
the aid and advice of the Union Council of Ministers.”
20. We would now like to reproduce, in entirety, the conclusions E
which the majority judgment arrived at. These are as under:
“The conclusions in seriatim
284. In view of our aforesaid analysis, we record our conclusions
in seriatim:
F
284.1. While interpreting the provisions of the Constitution, the
safe and most sound approach for the constitutional courts to adopt
is to read the words of the Constitution in the light of the spirit of
the Constitution so that the quintessential democratic nature of
our Constitution and the paradigm of representative participation
by way of citizenry engagement are not annihilated. The courts G
must adopt such an interpretation which glorifies the democratic
spirit of the Constitution.
284.2. In a democratic republic, the collective who are the
sovereign elect their law-making representatives for enacting laws
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78 SUPREME COURT REPORTS [2019] 3 S.C.R.

A and shaping policies which are reflective of the popular will. The
elected 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,
B
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
C 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
D Constitution by upholding the trust reposed by the Constitution in
them. The decisions taken by constitutional functionaries and the
process by which such decisions are taken must have normative
reasonability and acceptability. Such decisions, therefore, must
be in accord with the principles of constitutional objectivity and
E symphonious with the spirit of the Constitution.
284.5. The Constitution being the supreme instrument envisages
the concept of constitutional governance which has, as its twin
limbs, the principles of fiduciary nature of public power and the
system of checks and balances. Constitutional governance, in turn,
F gives birth to the requisite constitutional trust which must be
exhibited by all constitutional functionaries while performing their
official duties.
284.6. Ours is a parliamentary form of Government guided by
the principle of collective responsibility of the Cabinet. The Cabinet
G owes a duty towards the legislature for every action taken in any
of the Ministries and every individual Minister is responsible for
every act of the Ministry. This principle of collective responsibility
is of immense significance in the context of “aid and advice”. If a
well-deliberated legitimate decision of the Council of Ministers is
not given effect to due to an attitude to differ on the part of the
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 79
[A. K. SIKRI, J.]

Lieutenant Governor, then the concept of collective responsibility A
would stand negated.
284.7. Our Constitution contemplates a meaningful orchestration
of federalism and democracy to put in place an egalitarian social
order, a classical unity in a contemporaneous diversity and a
pluralistic milieu in eventual cohesiveness without losing identity. B
Sincere attempts should be made to give full-fledged effect to
both these concepts.
284.8. The constitutional vision beckons both the Central and the
State Governments alike with the aim to have a holistic edifice.
Thus, the Union and the State Governments must embrace a C
collaborative federal architecture by displaying harmonious
coexistence and interdependence so as to avoid any possible
constitutional discord. Acceptance of pragmatic federalism and
achieving federal balance has become a necessity requiring
disciplined wisdom on the part of the Union and the State
Governments by demonstrating a pragmatic orientation. D

284.9. The Constitution has mandated a federal balance wherein
independence of a certain required degree is assured to the State
Governments. As opposed to centralism, a balanced federal
structure mandates that the Union does not usurp all powers and
the States enjoy freedom without any unsolicited interference from E
the Central 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 F
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 G
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.

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80 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 284.11. In the light of the contemporary issues, the purposive
method has gained importance over the literal approach and the
constitutional courts, with the vision to realise the true and ultimate
purpose of the Constitution not only in letter but also in spirit and
armed with the tools of ingenuity and creativity, must not shy away
from performing this foremost duty to achieve constitutional
B
functionalism by adopting a pragmatic approach. It is, in a way,
exposition of judicial sensibility to the functionalism of the
Constitution which we call constitutional pragmatism. The spirit
and conscience of the Constitution should not be lost in grammar
and the popular will of the people which has its legitimacy in a
C democratic set-up cannot be allowed to lose its purpose in simple
semantics.
284.12. In the light of the ruling of the nine-Judge Bench
in NDMC [NDMC v. State of Punjab, (1997) 7 SCC 339] , it is
clear as noonday that by no stretch of imagination, NCT of Delhi
D can be accorded the status of a State under our present
constitutional scheme. The status of NCT of Delhi is sui generis,
a class apart, and the status of the Lieutenant Governor of Delhi
is not that of a Governor of a State, rather he remains an
Administrator, in a limited sense, working with the designation of
Lieutenant Governor.
E
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
F 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.
284.14. The interpretative dissection of Article 239-AA(3)(a)
G reveals that Parliament has the power to make laws for the
National Capital Territory of Delhi with respect to any matters
enumerated in the State List and the Concurrent List. At the same
time, the Legislative Assembly of Delhi also has the power to
make laws over all those subjects which figure in the Concurrent
H List and all, but three excluded subjects, in the State List.
GOVT. OF NCT OF DELHI v. UNION OF INDIA 81
[A. K. SIKRI, J.]

284.15. A conjoint reading of clauses (3)(a) and (4) of Article A
239-AA divulges that the executive power of the Government of
NCTD is coextensive with the legislative power of the Delhi
Legislative Assembly and, accordingly, 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
B
List. However, if 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 Parliament.
284.16. As a natural corollary, the Union of India has exclusive
executive power with respect to NCT of Delhi relating to the C
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 D
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 E
239-AA(4) has to be construed to mean that the Lieutenant
Governor of NCT of Delhi is bound by the aid and advice of
the Council of Ministers and this position holds true so
long as the Lieutenant Governor does not exercise his power
under the proviso to clause (4) of Article 239-AA. The Lieutenant
Governor has not been entrusted with any independent F
decision-making power. He has to either act on the “aid
and advice” of Council of Ministers or he is bound to
implement the decision taken by the President on a reference
being made by him.
284.18. The words “any matter” employed in the proviso to clause G
(4) of Article 239-AA cannot be inferred to mean “every matter”.
The power of the Lieutenant Governor under the said proviso
represents the exception and not the general rule which has to be
exercised in exceptional circumstances by the Lieutenant Governor
keeping in mind the standards of constitutional trust and morality, H
82 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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 Lieutenant Governor should not act in a
mechanical manner without due application of mind so as to refer
every decision of the Council of Ministers to the President.
B
284.19. The difference of opinion between the Lieutenant
Governor and the Council of Ministers should have a sound
rationale and there should not be exposition of the phenomenon of
an obstructionist but reflection of the philosophy of affirmative
constructionism and profound sagacity and judiciousness.
C
284.20. The Transaction of Business Rules, 1993 stipulate the
procedure to be followed by the Lieutenant Governor in case of
difference between him and his Ministers. The Lieutenant
Governor and the Council of Ministers must attempt to settle any
point of difference by way of discussion and dialogue. By
D contemplating such a procedure, the 1993 TBR suggest that the
Lieutenant Governor must work harmoniously with his Ministers
and must not seek to resist them at every step of the way. The
need for harmonious resolution by discussion is recognised
especially to sustain the representative form of governance as
E has been contemplated by the insertion of Article 239-AA.
284.21. The scheme that has been conceptualised by the insertion
of Articles 239-AA and 239-AB read with the provisions of
the GNCTD Act, 1991 and the corresponding the 1993 TBR indicates
that the Lieutenant Governor, being the administrative head, shall
F be kept informed with respect to all the decisions taken by the
Council of Ministers. The terminology “send a copy thereof to the
Lieutenant Governor”, “forwarded 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
G 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.
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 83
[A. K. SIKRI, J.]

284.22. The authorities in power should constantly remind A
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
B
the authorities should feel that they have been lionised. They
should feel that they are serving the constitutional norms, values
and concepts.
284.23. Fulfilment of constitutional idealism ostracising anything
that is not permissible by the language of the provisions of the
Constitution and showing veneration to its sense, spirit and silence C
is constitutional renaissance. It has to be remembered that our
Constitution is a constructive one. There is no room for absolutism.
There is no space for anarchy. Sometimes it is argued, though in
a different context, that one can be a “rational anarchist”, but the
said term has no entry in the field of constitutional governance D
and rule of law. The constitutional functionaries are expected to
cultivate the understanding of constitutional renaissance by
realisation of their constitutional responsibility and sincere
acceptance of the summon to be obeisant to the constitutional
conscience with a sense of reawakening to the vision of the great
living document so as to enable true blossoming of the constitutional E
ideals. The Lieutenant Governor and the Council of Ministers
headed by the Chief Minister are to constantly remain alive to this
idealism.
285. The Reference is answered accordingly. Matters be placed
before the appropriate regular Bench.” F

21. The lucid and equally well considered opinions have been
rendered by Justice Dhananjay Y. Chandrachud and one of us (Justice
Ashok Bhushan) which are substantially on the same lines as the majority
opinion. There is, however, a slight difference in approach and to some
extent discordant note is expressed in the opinion of Justice Ashok G
Bhushan. We would advert to these opinions and as well as the area of
difference at the appropriate stage.

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84 SUPREME COURT REPORTS [2019] 3 S.C.R.

A Ratio of the Judgment:
22. There is some dispute as to the exact ratio laid down in the
judgment of the Constitution Bench as well as the precise principles set
out therein. As per the the appellants, the Constitution Bench has accepted
that in a democratic setup where a Government is formed on the basis
B of elections by the people, it is that Government, through Council of
Ministers, which has the right to govern. Accepting this fundamental
principle as enshrined in the Constitution, the Constitution Bench has
recognised that Legislative Assembly for NCTD has the power to make
laws for the whole or any part of the NCTD, with respect to any of the
matters enumerated in the State List or in the Concurrent List. The only
C exclusion where the Legislative Assembly of NCTD is debarred from
making laws, are the subject matters of Entries 1, 2 and 18 of the State
List and Entries 64, 65, 66 of the 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
D 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
E 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
F three subjects in the State List, i.e., Entries 1, 2 and 18. The executive
power also extends to all subjects in the Concurrent List. The appellants
also submitted that this executive power is to the exclusion of the executive
power of the Union with respect to such matters, meaning thereby such
power exclusively vests with the GNCTD.
G 24. The aforesaid manner of reading the Constitution Bench
judgment is disputed by the respondents. Insofar as legislative domain
of the Legislative Assembly of Delhi is concerned, though the respondents
accept that the Legislative Assembly has the power to make laws in
respect of all the Entries in List II except matters with respect to Entries
1,2 and 18 and Entries 64, 65 and 66 of List II insofar as they relate to
H said Entries 1, 2 and 18 and also power to legislate in respect of subject
GOVT. OF NCT OF DELHI v. UNION OF INDIA 85
[A. K. SIKRI, J.]

matters contained in the Concurrent List (List III). However, their A
submission is that this power is not exclusive to the Legislative Assembly
of Delhi. On the contrary, the power of the Union, i.e., Parliament to
legislate on any entries of List II as well as List III remains intact. Further,
wherever Union has exercised the power by making laws in respect of
any such subject matter, it is the Union’s law which shall prevail in case
B
of any repugnancy in the light of Article 246 of the Constitution.
25. Insofar as executive power of the GNCTD is concerned, the
submission of the respondents is that though the Constitution Bench has
held that such executive power is co-extensive with the legislative power,
but it has nowhere held that such a power is exclusively conferred upon
the GNCTD, i.e., to the exclusion of the Union. Here also, according to C
the respondents, power of the Union remains intact, which is clear from
the plain language of Article 239AA of the Constitution itself.
26. The detailed submissions which were made by M/s. C.A.
Sundaram, Rakesh Dwivedi and Maninder Singh, learned Senior Counsel
who appeared for Union of India in different appeals are of the following D
nature:
27. It is submitted that two primary contentions had been raised
on behalf of the Government of NCT of Delhi before the Delhi High
Court as well as before this Court. It had been contended that:-
E
(i) Article 239 has no applicability whatsoever in the case of NCT
of Delhi; and
(ii) NCT Delhi deserves to be treated as a State and not as a
Union Territory because it has an elected Council of Ministers
like any other State.
F
28. It is argued that the above-mentioned contentions had been
raised on behalf of the Government of NCT of Delhi only with a view to
claim exclusive Executive jurisdiction in relation to Entries in List II and
List III 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). G
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. H
86 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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
B
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 7th Schedule,
between the Union on the one hand and the States on the other. In the
same manner, the provision of Article 152 applies the same rule of vesting
C of the executive power in relation to all items mentioned in List II of the
7th Schedule, in the Governor of any State to be exercised by the Council
of Ministers of the said State Government. In other words, it had been
submission of both Government of NCT of Delhi and Union of India
before the constitution Bench of this court that unless and until this Court
accepts the claim of the Government of NCT of Delhi that NCT Delhi
D
would deserve to be treated as a State, the claim that Exclusive Executive
Jurisdiction in relation to all items in List II (except matters with respect
of Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that
List insofar as they relate to the said Entries 1, 2 and 18 would vest in
NCT Delhi – could not be accepted and would deserve to be rejected.
E It is argued that the claim of GNCTD that a ‘State’ is specifically rejected
by the Constitution Bench.
30. Further, having regard to the critical fact of the NCT Delhi
being the National Capital and all eventual responsibilities rest on the
shoulders of the Union Government, the President of India shall continue
F to exercise Exclusive Executive Jurisdiction with regard to Item Nos. 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 e,w and 18 and shall continue to possess
the non-exclusive executive jurisdiction in relation to all other entries in
List II as well as List III of the Seventh Schedule.
G 31. The respondents further argued that there are three prominent
features of the judgment of this Court in the case of Rai Sahib Ram
Jawaya Kapur & Ors. v. State of Punjab3. Those prominent three
features are:-

3
AIR 1995 SC 549
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 87
[A. K. SIKRI, J.]

(i) There has to be a vestige of executive power in any Government A
before it makes any claim to exercise the said executive power
before framing of any legislation. It paragraphs 12 and 14 of the
said judgment in Ram Jawaya Kapur’s case, this Court has
referred to the vestige of executive power in the President of
India under Article 53 and in the Governor of each State under
B
Article 152 of the Constitution of India.
(ii) Having considered the above-mentioned aspect of vestige of
executive power in the Government, this Court held that with
reference to all the Entries 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 C
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 any legislation, the executive power of the respective D
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 E
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 F
List, the executive action of the State must conform to the law
made by the Parliament…….”
33. The respondents point out that in all the three opinions
constituting the judgment dated July 04, 2018, this Court has specifically
and categorically rejected both the above-mentioned contentions raised G
on behalf of the NCT Delhi and has categorically held that Article 239
continues to apply to NCT Delhi and further that NCT Delhi is not a
State but continues to remain a Union Territory. Reference in this regard
may be made to the following paras:
H
88 SUPREME COURT REPORTS [2019] 3 S.C.R.

A “196. Thus, NDMC [NDMC v. State of Punjab, (1997) 7 SCC
339] makes it clear as crystal that all Union Territories under our
constitutional scheme are not on the same pedestal and as far as
NCT of Delhi is concerned, it is not a State within the meaning of
Article 246 or Part VI of the Constitution. Though NCT of Delhi
partakes a unique position after the Sixty-ninth Amendment, yet
B
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”.
xx xx xx
C
201. In the light of the aforesaid analysis and the ruling of the
nine-Judge Bench in NDMC [NDMC v. State of Punjab, (1997)
7 SCC 339] , it is clear as noonday that by no stretch of imagination,
NCT of Delhi can be accorded the status of a State under our
present constitutional scheme and the status of the Lieutenant
D Governor of Delhi is not that of a Governor of a State, rather he
remains an Administrator, in a limited sense, working with the
designation of Lieutenant Governor.
Authored by Dr. Justice D.Y. Chandrachud:

E The Government of Union Territories Act, 1963
373. On 10-5-1963, the Government of Union Territories Act,
1963 was enacted. The 1963 Act defined the expression
“Administrator” in Section 2(1)(a) as:
“2. (1)(a) “Administrator” means the administrator of a
F Union Territory appointed by the President under Article 239;”
“Section 3 provided for a Legislative Assembly. Section 18 provided
for the extent of legislative power in the following terms:
“18. Extent of legislative power.—(1) Subject to the provisions
of this Act, the Legislative Assembly of the Union Territory
G may make laws for the whole or any part of the Union Territory
with respect to any of the matters enumerated in the State List
or the Concurrent List in the Seventh Schedule to the
Constitution insofar as any such matter is applicable in relation
to Union Territories.
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 89
[A. K. SIKRI, J.]

(2) Nothing in sub-section (1) shall derogate from the powers A
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 B
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)]. 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 D
category is Delhi which has “special features” under Article 239-
AA. Though the Union Territory of Delhi “is in a class by itself”,
it “is certainly not a State within the meaning of Article 246 or
Part VI of the Constitution”. Various Union Territories — the
Court observed — are in different stages of evolution. However, E
the position remains that these Union Territories, including the
NCT are yet Union Territories and not a State.
Authored by Justice Ashok Bhushan:
559. After examining the constitutional scheme delineated by
Article 239-AA, another constitutional principle had been laid down F
by the Constitution Bench that Union Territories are governed by
Article 246(4) notwithstanding their differences in respective set-
ups and Delhi, now called the “National Capital Territory of Delhi”
is yet a Union Territory. The Constitution Bench had also
recognised that the Union Territory of Delhi is in a class by itself, G
certainly not a State. Legislative power of Parliament was held to
cover Union Territories including Delhi.
583. The submission of the appellants that proviso to clause (4)
of Article 239-AA envisages an extreme and unusual situation
and is not meant to be a norm, is substantially correct. The exercise
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90 SUPREME COURT REPORTS [2019] 3 S.C.R.

A of power under the proviso cannot be a routine affair and it is only
in cases where the Lieutenant Governor on due consideration of
a particular decision of the Council of Ministers/Ministers, decides
to make a reference so that the decision be not implemented. The
overall exercise of administration of the Union Territory is
conferred on the President, which is clear from the provisions
B
contained in Part VIII of the Constitution. Although, it was
contended by the appellant that Article 239 is not applicable with
regard to NCTD after Article 239-AA has been inserted in the
Constitution. The above submission cannot be accepted on account
of the express provisions which are mentioned under Article 239-
C AA and Article 239-AB itself. Article 239-AA clause (1) itself
contemplates that Administrator appointed under Article 239 shall
be designated as the Lieutenant Governor. Thus the Administrator
appointed under Article 239 is designated as the Lieutenant
Governor. Article 239-AB is also applicable to NCTD. Article
239-AB in turn refers to any apply Article 239. The provisions
D
contained in Part VIII of the Constitution have to be looked into in
its entirety. Thus, all the provisions of Part VIII have to be
cumulatively read while finding out the intention of the Constitution-
makers, which makes it clear that Article 239 is also applicable to
NCTD.”
E 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
F 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
G 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
H government in relation to the Union Territory of NCTD.
GOVT. OF NCT OF DELHI v. UNION OF INDIA 91
[A. K. SIKRI, J.]

36. After highlighting the above aspect, submission on behalf of A
Union of India/Lieutenant Governor is that the true and correct scope
and interpretation of Article 239AA in relation to NCTD in the entire
constitutional scheme (and as laid down in the judgment dated July 04,
2018 passed by the Constitution Bench of this Court including in paras
217, 218 and 219 of the majority judgment), brings into existence the
B
position as tabulated below:

C

D

E

37. It is also submitted that it is neither compatible nor can the
argument co-exist that even when the Constitution Bench categorically
rejected the contentions of Government of NCTD, including the
contention that it is a State and Article 239 would not apply in the case of F
NCT Delhi, it can still be said that Government of NCTD would possess
the exclusive Executive jurisdiction in relation to all Entries 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
G
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
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92 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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
B
Union Government. Reliance is placed on paras 86 ad 87 of the opinion
authored by Justice D.Y., Chandrachud, which are as under:
“86. Section 49 establishes the principle of the “general control”
of the President over the Lieutenant Governor and the Council of
Ministers:
C
“49. Relation of Lieutenant Governor and his Ministers to
Presi-dent.—Notwithstanding anything in this Act, the
Lieutenant Governor and his Council of Ministers shall be under
the general control of, and comply with such particular
directions, if any, as may from time to time be given by the
D President.”
“As an incident of control, the Lieutenant Governor and Council
of Ministers must comply with the particular directions issued by
the President. Such directions are obviously issued on the aid and
advice of the Union Council of Ministers.
E
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.
F
87. This survey of the provisions of the GNCTD Act, 1991 indicates
that there is a significant interface between the President and the
Lieutenant Governor in matters relating to the administration of
the Capital. The Lieutenant Governor has been conferred with
certain specific powers by the provisions of the Act including,
G among them, requirements of seeking the prior recommendation
of the President to the introduction of financial Bills. As we have
seen, the Lieutenant Governor has been subjected to a wider
obligation to reserve Bills for the consideration of the President
and in regard to withholding of his assent to a Bill which has been
passed by the Legislative Assembly in comparison with the duties
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 93
[A. K. SIKRI, J.]

of a Governor of a State. Matters such as the presentation of the A
annual financial statement or supplementary, additional or excess
grants require previous sanction of the President. The President
has been conferred with the power to issue directions in regard to
the official language of the National Capital Territory. The
Lieutenant Governor has been vested with the power to act in his
B
own discretion in matters which fall outside the ambit and power
of the Legislative Assembly and which have been delegated to
him by the President as well as in regard to those matters where
he is required under law to exercise his own discretion or to act in
exercise of judicial or quasi-judicial functions. Rules for the Conduct
of Business are framed by the President in relation to the National C
Capital Territory, including for the allocation of 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
D
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. E
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 F
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 G
that article for such period and subject to such conditions as may
be specified in such law and make such incidental and consequential
provisions as may appear to him to be necessary or expedient for
administering the National Capital Territory in accordance with
the provisions of article 239 and article 239AA.
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94 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 356. Provisions in case of failure of constitutional machinery in
State
(1) If the President, on receipt of report from the Governor of the
State or otherwise, is satisfied that a situation has arisen in which
the government of the State cannot be carried on in accordance
B with he provisions of this Constitution, the President may be
Proclamation
(a) assume to himself all or any of the functions of the
Government of the State and all or any of the powers vested in
or exercisable by the Governor or any body or authority in the
C State other than the Legislature of the State;
(b) declare that the powers of the Legislature of the State shall be
exercisable by or under the authority of Parliament;
(c) make such incidental and consequential provisions as appear
D to the president to be necessary or desirable for giving effect to
the objects of the Proclamation, including provisions for suspending
in whole or in part the operation of any provisions of this constitution
relating to any body or authority in the State
Provided that nothing in this clause shall authorise the President
E to assume to himself any of the powers vested in or exercisable
by a High Court, or to suspend in whole or in part the operation of
any provision of this Constitution relating to High Courts…..”
40. On the strength of these provisions it is argued that it is
abundantly clear that in the case of States, the Constitution envisages
F that in a case of failure of constitutional machinery, the President (i.e.,
the Union Executive) shall ‘assume to himself” the functions of the State
Government and the powers vested in the Governor. However, in the
case of Union Territory of Delhi, since the executive power remains
vested in the President and there is no independent exclusive vestage of
executive power in the Council of Ministers of NCTD – there was neither
G any occasion nor any requirement for the Constitution makers to provide
for in the provisions of Article 239AB – any “assumption of functions”
by the Union Executive since the executive power vests in the Union
Executive itself. Since there is never any exclusive vestage in the Council
of Ministers of NCT Delhi, there is no need to assume/take it back by
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 95
[A. K. SIKRI, J.]

the President. Further, Article 239AB provides that in the case of NCT A
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 B
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
C
be in consonance with the observation made in para 144 of the opinion
authored by Justice D.Y. Chandrachud, wherein it has been observed
that there is a broad coalescence (“coming together to form one mass or
whole; process of merger of two or more droplets of particles to become
one single droplet”) between the view expressed in the three opinions in
the said judgment dated 04.07.2018. D
42. We may record at this stage that Dr. Abhishek Manu Singhvi,
learned Senior Advocate who appeared for the intervenor, Reliance
Industries Limited supported the aforesaid stand taken by the Union of
India. He also submitted that no exclusive executive power has been
conferred upon the GNCTD, i.e, to the exclusion of the Central E
Government. He argued that the Scheme behind Article 239AA of the
Constitution was ‘hybrid’ in nature relatable to Lists II and III. Detailed
submission of Dr. Singhvi in this behalf would be taken note of while
dealing with the issue pertaining to ACB.
43. We may point out at this stage that learned senior counsel F
appearing for the Union of India have also argued, in the alternative, that
if the interpretation suggested by them to the aforesaid judgment of the
Constitution Bench is not acceptable, the matter needs to be referred to
the Constitution Bench again. To put it differently, the submission is that
if this Bench interprets that the Constitution Bench has held that the
executive power conferred upon the GNCTD under Article 239AA of G
the Constitution is to the exclusion of the power of the Union, then such
an interpretation given by the Constitution Bench is contrary to the scheme
of Article 239AA. Efforts were made to show as to how such a view (if
it is the view of the Constitution Bench) would be contrary to not only
the constitutional scheme, but contrary to specific provisions of the H
96 SUPREME COURT REPORTS [2019] 3 S.C.R.

A GNCTD Act, 1991, particularly Sections 44 as well as Rule 23 of the
Transaction of Business Rules. However, we are of the opinion that no
such reference to the larger Bench is required and, therefore, we have
not reproduced submissions of the learned senior counsel of Union of
India on this aspect.
B 44. M/s. Kapil Sibal, P.C. Chidambaram, Shekhar Naphade and
Ms. Indira Jaising argued the matter on behalf of NCTD, appearing in
different appeals. Insofar as the aforesaid interpretation suggested by
learned counsel appearing for the Union of India is concerned, a strong
refutation on behalf of the NCTD is that the judgment, in no uncertain
terms, holds that the executive power of NCTD is co-extensive with its
C legislative power. According to them, the Constitution Bench has
specifically held that this executive power pertains to all the Entries in
List II, (except Entries 1, 2 and 18, which are specifically excluded), as
well as all 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
D 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.
E 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
F was that the majority judgment clearly records the submission of the
Central Government in para 38 which reads as under:
“38. The respondents also contend that although Article 239AA
confers on the Legislative Assembly of Delhi the power to legislate
with respect to subject matters provided in List II and List III of
G the Seventh Schedule, yet the said power is limited by the very
same Article when it employs the phrase “in sofaras any such
matter is applicable to Union Territories...” and also by specifically
excluding from the legislative power of the Assembly certain
entries as delineated in Article 239AA(3)(a). This restriction, as
H per the respondents, limits the power of the Legislative Assembly
GOVT. OF NCT OF DELHI v. UNION OF INDIA 97
[A. K. SIKRI, J.]

to legislate and this restriction has to be understood in the context A
of conferment of special status.”
46. The above contention is answered specifically in para 214 of
the majority judgment of the Constitution Bench, where it is held that the
Delhi Assembly has Legislative Power with respect to all matters in the
State and Concurrent List except “matters with respect to entries which B
have been explicitly excluded from Article 239AA(3)(a)”. Thus, the
contention of the Union of India was that matters in List II and List III
can be excluded in two different ways, explicitly and implicitly, on account
of use of the phrase “insofar as any such matter is applicable to Union
Territories” and the Constitution Bench has negated that argument and
held that power of the Delhi Assembly and Government spans over all C
subjects except what has been excluded explicitly.
47. The learned counsel also submitted that at least at seven other
places, the majority judgment has made it clear that Delhi Assembly/
Government has Legislative/Executive Competence over all subjects
except three subjects and as a corollary, the executive power of the D
Union Government in Delhi is limited to three excluded subjects in List
II. These paragraphs are:
(a) In Para 199, it is observed that executive power of Delhi
Government is co-terminus with executive power on “all but three
subjects in the State List and all subjects in the Concurrent List”. E

(b) In Para 212, it is held that “sub-clause (a) of clause (3) of
Article 239AA establishes the power of Delhi Legislative Assembly
to enact laws for the 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 F
18 of the State List.”
(c) Again, in Para 217, the Court held that on a conjoint reading of
clause 3(a) and clause 4 of Article 239AA, it becomes clear that
the Delhi Government has executive power which extends over
“all but three subjects in the State List and all subjects in the G
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
H
98 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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
B 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
C 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.”
D
48. This submission was sought to be supported from the
concurring judgment of Justice Chandrachud (by referring to paras 127
to 130) which holds that the term “insofar as any such matter is applicable
to a Union Territory” in not a terms of exclusion. Similarly, in paras 71
and 72 of the judgment of Justice Bhushan, it has been held that the said
E phrase “is not exclusionary phrase but has been used to facilitate
conferment of power on the Delhi Assembly even in respect of entry
that begin with the term State”.
49. It was further submitted that reliance placed by the learned
counsel appearing for the Union of India on Balakrishnan Committee
F report for interpreting the provisions of Article 239AA was totally
misconceived inasmuch as that aspect has already been considered in
the judgment of the Constitution Bench. It was argued that the
Constitution Bench has interpreted the provisions of Articles 239, 239AA
and 239AB as they apply to NCT of Delhi based on first principles of
constitutionally mandated representative democracy, which is based on
G
popular will. The Constitution Bench has not been constrained by textual
limitations in giving the interpretation. This is best stated in Para 11 of
the Constitution Bench judgment, the relevant portion of which reads as
under:

H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 99
[A. K. SIKRI, J.]

“11. ...In the context of the case at hand, the democratic nature A
of our Constitution and the paradigm of representative participation
are undoubtedly comprised in the “spirit of the Constitution”.
While interpreting the provisions of the Constitution, the safe and
most sound approach is to read the words of the Constitution in
light of the avowed purpose and spirit of the Constitution so that it
B
does not result in an illogical outcome which would have
never been the intention of the Constituent Assembly or the
Parliament while exercising its constituent power. Therefore, a
Constitutional Court, while adhering to the language employed in
the provision, should not abandon the concept of the intention,
spirit, the holistic approach and the constitutional legitimate C
expectation which combinedly project a magnificent facet of
purposive interpretation. The Court should pose a question to
itself whether a straight, literal and textual approach would
annihilate the sense of the great living document which is required
to be the laser beam to illumine. If the answer is in the affirmative,
D
then the constitutional courts should protect the sense and spirit
of the Constitution taking aid of purposive interpretation as that is
the solemn duty of the constitutional courts as final arbiters of the
Constitution...”
(Emphasis Supplied)
E
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 F
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: G
“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
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100 SUPREME COURT REPORTS [2019] 3 S.C.R.

A with the meaning to be conferred on the constitutional
provision that calls for interpretation, there is no necessity to
be guided by the report of the Committee.”
(Emphasis Supplied)
52. In this context, another submission of the learned counsel for
B the appellants was that, in fact, respondents were trying to re-argue the
entire matter and attempt was to impress this Bench to depart from the
view taken by the Constitution Bench, which was impermissible having
regard to the provisions contained in Article 145(3) of the Constitution
and in particular the proviso thereof, which reads as under:
C “Article 145(3): The minimum number of Judges who are to sit
for the purpose of deciding any case involving a substantial question
of law as to the interpretation of this Constitution or for the purpose
of hearing any reference under Article 143 shall be five:
Provided that, where the Court hearing an appeal under any of
D the provisions of this chapter other than Article 132 consists of
less than five Judges and in the course of the hearing of the appeal
the Court is satisfied that the appeal involves a substantial question
of law as to the interpretation of this Constitution the determination
of which is necessary for the disposal of the appeal, such Court
E shall refer the question for opinion to a Court constituted as required
by this clause for the purpose of deciding any case involving such
a question and shall on receipt of the opinion dispose of the appeal
in conformity with such opinion”
53. The argument advanced is that after settling the legal position
F with respect to Article 239AA of the Constitution, the Constitution Bench
has referred the matter back to this Bench for deciding individual cases.
This Bench was, therefore, to decide these individual issues in ‘conformity’
with the opinion of the Constitution Bench and, therefore, it was not
open to the Union of India to re-argue the case.
54. We have considered the aforesaid submissions with deep sense
G
of sincerity, objectivity and also keeping in mind various specific issues
that arise for determination in these appeals.
55. Indubitably, NCTD was, and still remains, a Union Territory.
This was held by a nine Judge Bench judgment in the NDMC case,
which legal position is reiterated by the Constitution Bench in the instant
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 101
[A. K. SIKRI, J.]

case as well. However, in spite of NCTD being a Union Territory, it has A
been given special constitution status under Article 239AA. Clause (1)
of the said Article 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
B
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, C
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
D
left to the Parliament. At the same time, NCTD remains a Union
Territory and is not elevated to the status of a ‘State’ governed by Part
VI of the Constitution (Articles 152 to 237). Thus, with the creation of
Legislative Assembly as well as elected Government and conferment of
all legislative and executive powers, concept of federalism has been
incorporated in Article 239AA. Article 239AA has been interpreted by E
the Constitution Bench keeping in view this principle of federalism. All
these aspects have been kept in view by the Constitution Bench while
deciding the status of the NCTD as well as conferment of legislative
and executive powers to the Legislative Assembly and GNCTD
respectively. The CB judgment, therefore, has to be read keeping in
F
view all these parameters as well as the constitutional principles adopted
in interpreting Article 239AA.
56. Insofar as legislative power of the NCTD is concerned, there
is no dispute that it extends to all the subject matters contained in various
Entries of List II with the specific exclusion of Entries 1, 2 and 18.
Likewise, it extends to all the Entries in the Concurrent List, i.e. List III. G
At the same time, it is also an undisputed fact that power of the Parliament
to legislate on any subject matter contained in List II is not excluded. In
fact, in respect of Union Territories, it is the Union, i.e. the Parliament,
which has the power to legislate on all subjects contained in List II and
H
102 SUPREME COURT REPORTS [2019] 3 S.C.R.

A List III. However, there is a conferment of such legislative power upon
the Legislative Assembly of NCTD as well. This power is specifically
conferred upon the Legislative Assembly under sub-clause (a) of Article
239AA(3). Sub-clause (b) thereof, in no uncertain terms, provides that
conferment of powers upon Delhi Legislative Assembly under sub-clause
(a) shall not derogate the powers of Parliament under the Constitution to
B
make laws in with respect to any matter for a Union Territory or any
part thereof. This sub-clause, therefore, retains the supremacy of
Parliament to make laws. What follows is that Parliament has not only
concurrent power in respect of List III, but in respect of List II as well.
Insofar as Entries 1, 2 and 18 of List II are concerned, the Parliament
C retains its exclusive domain on those subject matters. To this extent,
there is a departure from the principle of fedaralism inasmuch as
Parliament has no power to make any laws in respect of the States for
the matters enumerated in List II. Sub-clause (c) of clause (3) of Article
239AA takes care of the situation of repugnancy if it arises between the
law made by the Parliament and the Legislative Assembly of NCTD. In
D
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,
E 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.
F
57. As mentioned earlier, insofar as this power of Parliament to
make laws in respect of NCTD is concerned, there is no quarrel. In this
conspectus, we have to find as to whether the CB Judgment held that
insofar as the executive power of GNCTD is concerned, it is to the
exclusion of the Centre, or, as contended by the learned senior counsel
G appearing for the Union of India, such executive power given to Delhi
Government is co-extensive with that of Central Government.
58. It is in the aforesaid backdrop that the observations of the
Constitution Bench, particularly the majority view, have to be discerned
and given an appropriate meaning. Undoubtedly, the majority judgment
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 103
[A. K. SIKRI, J.]

in the Constitution Bench decides that the executive power of GNCTD A
is co-extensive with legislative power and it extends over all the subjects
of the lis to accept subjects mentioned in Entries 1, 2 and 18 and it also
extends to all subjects in List III. This is the clear mandate of the
Constitution Bench. The controversy, however, is on the issue as to
whether such executive power of GNCTD is to the exclusion of the
B
power of the Union Government. In this behalf, it may be noted that the
majority judgment has held that such executive power of the Delhi
Government is to the exclusion of the executive power of the Union.
On the other hand, in a separate judgment rendered by one of us (Ashok
Bhushan, J.), it has been clearly held that the executive power of the
Union Government is co-extensive with that of the Delhi Government. C
Discussion on this aspect, in the opinion of Ashok Bhushan, J., goes as
under:
“84. The appellant relying on Article 73 of the Constitution had
submitted that Article 73 lays down the principle that while there
may exist under the Constitution concurrent legislative powers on D
two different federal units, there can never be any concurrent
executive powers. It was further submitted that the above
principle equally applies to matters listed in List II and List III of
the Constitution of India for NCTD. Referring to Article 239-
AA(3)(b), it is contended that the said provision confers power
on Parliament to enact legislations in matters in both State List E
and Concurrent Lists Such power is also available under Article
246. However, it does not follow from the above that the said
provision also confers executive powers in relation to matters in
the State List and Concurrent List. It is further submitted that
Parliament may by law confer executive powers in relation to F
matters in the Concurrent List on the Union Government for States,
it may also do so in relation to NCTD. But, if such thing is not
done, the Union Government will, as a general rule, have no
executive powers in respect of matters under 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 G
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: H
104 SUPREME COURT REPORTS [2019] 3 S.C.R.

A “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 (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
C in any law made by Parliament, extend in any State to matters
with respect to which the legislature of the State has also power
to make laws.
(2) Until otherwise provided by Parliament, a State and any
officer or authority of a State may, notwithstanding anything in
D this Article, continue to exercise in matters with respect to
which Parliament has power to make laws for that State such
executive power or functions as the State or officer or authority
thereof could exercise immediately before the commencement
of this Constitution.”
E 85. The proviso to Article 73(1) provides that the executive power
referred to in sub-clause (a) shall not, save as expressly provided
in this Constitution or in any law made by Parliament, extend in
any State to matters with respect to which the legislature of the
State has also power to make laws. Obviously, the proviso refers
F to the Concurrent List where both Parliament and State have
power to make laws. Executive power in reference to Concurrent
List has been deliberately excluded to avoid any duplicacy in
exercise of power by two authorities. Article 73 as it stood prior
to the Constitution (Seventh Amendment) Act, 1956 contained
the expression after the word State “specified in Part A or Part B
G of the First Schedule”. Thus, the executive power was excluded
of the Union only with regard to Part A and Part B States alone.
Thus, when the Constitution was enforced, executive power of
Union in reference to Part C States was not excluded with regard
to Concurrent List also. Part C States having been substituted as
now by the Union Territories by the Constitution (Seventh
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 105
[A. K. SIKRI, J.]

Amendment) Act. The word “State” in proviso to Article 73 cannot A
be read to include Union Territory. Reading the words “Union
Territory” within the word “State” in proviso to Article 73(1) shall
not be in accordance with Scheme of Part VIII (Union Territories)
of the Constitution. Union Territories are administered by the
President. Exercise of executive power of the Union through
B
President is an accepted principle with regard to Union Territories.
The above interpretation is also reinforced due to another reason.
Under Article 239-AA(4) proviso, the Lieutenant Governor, in
case of difference of opinion, can make a reference to the President
for decision and has to act according to the decision given thereon.
The President, thus, with regard to a particular executive action, C
which has been referred, has exclusive jurisdiction to take a
decision, which both Council of Ministers as well as Lieutenant
Governor has to follow. The provision does not indicate that power
of the President is confined only to executive actions which are
mentioned in List II. When the President, as provided by the
D
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 E
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
F
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 G
Amendment has been followed by enactment of the Government
of National Capital Territory of Delhi Act, 1991 which Act was
enacted by Parliament in exercise of power under Article 239-
AA(7)(a) of the Constitution. Section 49 of the Act, 1991 provides
as follows:
H
106 SUPREME COURT REPORTS [2019] 3 S.C.R.

A “49. Relation of Lieutenant Governor and his Ministers to
President.—Notwithstanding anything in this Act, the
Lieutenant Governor and his Council of Ministers shall be under
the general control of, and comply with such particular
directions, if any, as may from time to time be given by the
President.”
B
86. Legislative power of the Union is exercised by the President
as per the constitutional scheme and Section 49 itself indicates
that Parliament clearly envisaged the Council of Ministers and
the Lieutenant Governor shall be under the general control of,
and comply with such particular directions issued by the President
C from time to time. The power of the President to issue direction is
not limited in any manner so as to put any restriction on the
executive power of the Union.
87. The President further is empowered under Section 44 of the
1991 Act to make rules for the allocation of business to the
D Ministers insofar as it is business with respect to which the
Lieutenant Governor is required to act on the aid and advice of
his Council of Ministers. As per Article 239-AA sub-clause (4)
read with business rules, the manner and procedure of conduct of
business including executive functions of G NCTD has to be
E administered. Although the Union ordinarily does not interfere with
or meddle with the day-to-day functions of the GNCTD which is in
tune with the constitutional scheme as delineated by Article 239-
AA and to give meaning and purpose to the Cabinet form of
Government brought in place in the National Capital of Territory.
But as the overriding legislative power of Parliament is conceded
F in the constitutional scheme, overriding executive power has also
to be conceded even though such power is not exercised by the
Union in the day-to-day functioning of the GNCTD. We thus conclude
that executive power of the Union is coextensive on all subjects
referable to List I and List II on which Council of Ministers and
G NCTD has also executive powers.”
59. Insofar as opinion of Chandrachud, J. is concerned, there is
no categorical discussion on this aspect, though insofar as legislative
power of the Legislative Assembly of Delhi is concerned, that has been
recognised, which is in conformity with the other two opinions, the aspect
H of executive power of the Delhi Government has not been elaborated.
GOVT. OF NCT OF DELHI v. UNION OF INDIA 107
[A. K. SIKRI, J.]

Instead, there is a detailed discussion on the construction of the proviso A
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
B
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 C
of the GNCTD Act. Therefore, the provision to Article 239AA(4) must
be given an interpretation which is marked with a sense of fine
constitutional balance. The balance which is drawn must preserve the
vital interest of the Union Government in the governance of the National
Capital while supporting the legitimacy and constitutional status of the
D
Council of Minister, which owes collective responsibility to the Legislative
Assembly and which, in its capacity of the executive arm of the
Government, tenders aid and advise to the Lieutenant Governor under a
cabinet form of governance. According to the learned Judge, three lines
of reasoning emerge in this behalf which are mentioned in the opinion.
The first line of interpretation would have the Court interpret the E
expression ‘difference of opinion between the Lieutenant Governor
and his Council of Ministers on any of the matter’ without reservation
or qualification, which would be a purely literal or textual construction.
In this sense ‘any matter’ would mean any matter without restriction.
Second interpretation would be to read the aforesaid expression to be
F
read and confined to specific categories. Third interpretation has two
facets. As per the first facet, a reference can be made to the President
only after the Lieutenant Governor has made an effort to resolve a
difference with a Minister or with Council of Ministers by seeking a
resolution through dialogue and discussion. This is to be done after
following the procedure contained in the Transaction of Business Rules. G
Second facet relates to the substantive meaning of the expression ‘any
matter’, which would not mean ‘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 deserves to
be escalated to the President.
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108 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 60. After suggesting the aforesaid three lines of interpretations,
the judgment suggests that there is a kernel of substance in each of
them, but pitfalls have to be avoided. It emphasises that the functioning
of the institutions must establish a constitutional balance which facilitates
cooperative governance. Read in this way, the proviso has to be operated
and applied in a manner which facilitates and does not obstruct the
B
governance of NCTD. This judgment, thereafter, again emphasises that
though Delhi has a special status, it continues to be a Union Territory. In
that context, the nine Judge Bench decision in NDMC as well as the
scheme contained in Article 239 and 239AA as well as the principle of
repugnancy mentioned in Article 254 of the Constitution are discussed.
C 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)],
D 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
E 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,
F consistent with its status as a Union Territory.
139. The exercise of the constituent power to introduce Article
239-AA was cognizant of the necessity to protect national interests
inherent in the governance of a National Capital. A sense of
permanence and stability was sought to be attributed to the
G arrangements made for governing Delhi by bringing in a
constitutional amendment. Both in terms of the reach of the
legislative power, as well as in relation to the exercise of executive
power, the special constitutional arrangements for Delhi recognise
that the governance of Delhi implicates a sense of national interest.
When matters of national interest arise, they would predicate a
H predominant role for institutions of national governance.
GOVT. OF NCT OF DELHI v. UNION OF INDIA 109
[A. K. SIKRI, J.]

140. Consistent with the need to preserve national interest, it A
would not be appropriate to restrict the ambit of the proviso to
Article 239-AA(4) to situations where the action of the
Government is ultra vires the limits of its executive powers. This
becomes evident on a construction of the provisions of Section
41(1)(i) and Section 44(1)(a) of the GNCTD Act. Clause (i) of
B
Section 41(1) enables the Lieutenant Governor to act in his
discretion on a matter 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. Under Section 44(1)(a), Rules of Business are made
on matters on which the Lieutenant Governor is required to act C
on the aid and advice of the Council of Ministers. Section 44(1)(a)
covers business which is not a part of Section 41(1)(i). This is
because matters which fall within Section 44(1)(i) are not governed
by the principle of aid and advice.
141. There is much to be said for not laying down an exhaustive D
catalogue of situations to which the proviso applies. Governance
involves complexities. In the very nature of things, it would not be
possible for a court delivering judgment in the context of the
problems of the day to anticipate situations which may arise in
future. It would be unsafe to confine a constitutional provision to
stated categories which may affect the resilience of the E
Constitution to deal with unforeseen situations. Some of the
illustrations which may warrant the exercise of the power under
the proviso may shed light on the purpose of the proviso and the
object which it seeks to achieve.
142. There are two constitutional perspectives: first, the operation F
of the proviso should preserve the national concerns underlying
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 G
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
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110 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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
B
44 of the GNCTD Act which was enacted in pursuance of Article
239-AA(7). Hence the proviso must be read in conjunction with
the law enacted by Parliament and the Transaction of Business
Rules made by the President, to give clarity to the operating
procedure for invoking the proviso. Moreover, once a reference
C is made to the President, the Lieutenant Governor is bound by the
decision of the President. The Lieutenant Governor has the
authority to take action which is warranted by emergent
circumstances until the President has taken a decision. But before
recourse is taken to the proviso, the Lieutenant Governor must
make every effort with the Minister or, as the case may be, the
D
Council of Ministers to resolve a matter of difference. The nature
of the differences which may warrant a reference to the President
cannot be exhaustively catalogued. But it would be appropriate to
construe the proviso as a protector of national concerns in regard
to governance of the NCT. The Lieutenant Governor is a watchdog
E to protect them. The Lieutenant Governor may, for instance, be
justified in seeking recourse to the proviso where the executive
act of the Government of the NCT is likely to impede or prejudice
the exercise of the executive power of the Union Government.
The Lieutenant Governor may similarly consider it necessary to
invoke the proviso to ensure compliance with the provisions of
F
the Constitution or a law enacted by Parliament. There may well
be significant issues of policy which have a bearing on the position
of the National Capital Territory as a national Capital. Financial
concerns of the Union Government may be implicated in such a
manner that it becomes necessary for the Lieutenant Governor to
G invoke the proviso where a difference of opinion remains
unresolved. A situation of the nature indicated in Rule 23 of the
Transaction of Business Rules may well justify recourse to the
proviso. The touchstone for recourse to the proviso is that the
difference of opinion is not a contrived difference. The matter on
which a difference has arisen must be substantial and not trifling.
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 111
[A. K. SIKRI, J.]

In deciding whether to make a reference, the Lieutenant Governor A
must always bear in mind the latitude which a representative
Government possesses to take decisions in areas falling within its
executive authority. The Lieutenant Governor must bear in mind
that it is not he, but the Council of Ministers which takes substantive
decisions and even when he invokes the proviso, the Lieutenant
B
Governor has to abide by the decision of the President. The
Lieutenant Governor must also be conscious of the fact that
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 C
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
D
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 E
responsible. The role of the Lieutenant Governor is not to supplant
this constitutional structure but to make it workable in order to
ensure that concerns of a national character which have an innate
bearing on the status of Delhi as a national Capital are not
bypassed. If these fundamental precepts are borne in mind, the
F
operation of the proviso should pose no difficulty and the
intervention of the President could be invoked in appropriate cases
where a matter fundamental to the governance to the Union
Territory is involved.”
61. Insofar as executive power of the GNCTD is concerned, we
find that the majority judgment authored by Dipak Misra, CJI (as he G
then was) clearly holds that it is to the exclusion of the executive power
of the Central Government. That is the effect of the combined reading
of paragraphs 214 to 218 of the Constitution judgment. The argument of
the respondents to the contrary is an attempt to reargue the case.
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112 SUPREME COURT REPORTS [2019] 3 S.C.R.

A However, judicial discipline prevents us from embarking upon such a
journey. In fact, it is for this reason the learned counsel appearing for
the Union of India have also argued that the majority opinion is not correct
and matter needs to be referred to the larger Bench for reconsideration.
This course of action would also not be advisable having regard to the
provisions of Article 145(3) of the Constitution. We, thus, have to proceed
B
on the premise that the executive power of the Delhi Government extends
to all Entries of List II (except Entries 1, 2 and 18) and Entries 64, 65
and 66 of that List insofar as they relate to said Entries 1, 2 and 18 as
well as all the Entries in List III. This power of GNCTD is also to be
exclusive, i.e. to the exclusion of the executive power of the Central
C Government. At the same time, we may also clarify that while dealing
with the specific issues which arise in these appeals, this Court would
keep in mind the provisions of GNCTD Act as well as the Transaction
of Business Rules inasmuch as for deciding these issues this Court cannot
be oblivious of the specific provisions contained in the Act and the Rules.
D 62. Of course, while construing those provisions and applying
these and other provisions in the context of specific issues, the letter
and spirit behind the Constitution Bench judgment on various aspects, to
which all the three opinions concur, would be kept in mind. It is for this
reason we have discussed other two opinions as well, in detail.
E The Appeals
63. To recapitulate, there are a total of nine appeals which have
to be decided by this Court in the present batch of appeals. Seven out of
these nine appeals have been filed by the GNCTD and remaining two
have been filed by the Union of India. Eight out of these nine appeals
F 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
G 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
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 113
[A. K. SIKRI, J.]

the officials of Central Government and limiting the jurisdiction of the A
ACB to the employees of GNCTD alone is legal? (These two issues
arise in Civil Appeal No. 2357 of 2017).
66. The third issue is raised in Civil Appeal Nos. 2358, 2359 and
2360 of 2017. In all these three appeals, the common issue is whether
the GNCTD is an “Appropriate Government” under the Commission of B
Enquiry Act, 1952?
67. The fourth issue, which is raised in Civil Appeal 2363 of 2017,
is: whether under Section 108 of the Electricity Act, 2003 and under
Section 12 of the Delhi Electricity Reforms Act, 2000, the power to
issue directions with the State Commission is with the Government of C
NCT of Delhi?
Similar issue is the subject matter of Civil Appeal 2361 of 2017,
viz. whether the orders of the GNCTD nominating Directors to
Distribution Companies in Delhi under the Delhi Electricity Reforms
Act, 2000 read with Delhi Electricity Reforms (Transfer Scheme) Rules, D
2001, without obtaining the concurrence of the Lieutenant Governor are
valid?
68. The fifth issue is common to Civil Appeal No. 2362 of 2017
filed by the GNCTD and Civil Appeal No. 2364 of 2017 filed by Union
of India, wherein the issue is whether the Revenue Department of the E
GNCTD has the power to revise the minimum rates of Agricultural Land
(Circle Rates) under the provisions of Indian Stamp Act, 1899?
69. The sixth issue, which is the subject matter of Criminal Appeal
No. 277 of 2018, pertains to the appointment of Special Public
Prosecutors, viz., whether it is the Lieutenant Governor or the GNCTD F
which has the power to appoint the Special Public Prosecutor under
Section 24 of the Cr.PC.?
Discussion and Conclusions on the Issues Raised
70. We now proceed to decide these issues.
Issue No.1: Whether the exclusion of ‘Services’ relatable to G
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?

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114 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 71. Entry 41 of List II of the Seventh Schedule reads as under:
“41. State public services; State Public Service Commission.”
72. Mr. Chidambaram, learned senior counsel who argued the
case on behalf of the GNCTD on this issue, submitted that the majority
judgment of the Constitution Bench specifically holds that exclusion of
B legislative/executive power in List II for Assembly/ GNCTD is limited
to only three subjects, i.e. Entry 1 (Public order), Entry 2 (Police) and
Entry 18 (Land). Therefore, the issue of exclusion of any other additional
Entry either in List II or in List III would not arise. As a consequence,
not only legislative power of the Assembly, even the co-extensive executive
C power in respect of Entry 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
D 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:

E “
MINISTRY OF HOME AFFAIRS
NOTIFICATION
New Delhi, the 24th September, 1998
S.O. 853 (E). – In pursuance of the powers conferred under
F 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
G time to him by the President, in consultation with the Chief Minister
of the National Capital Territory of Delhi except in those cases
where, for reasons be recorded in writing, he does not consider it
expedient to do so.
[F.No. U-11030/2/98-UTL(288)]
H P.K. JALALI, Jt. Secy.”
GOVT. OF NCT OF DELHI v. UNION OF INDIA 115
[A. K. SIKRI, J.]

However, this was superseded vide impugned Notification dated A
May 21, 2015 which gives power to the Lieutenant Governor in respect
of ‘Services’ as well, in addition to ‘Public Order’, ‘Police’ and ‘Land’,
which is contrary to the scheme contained in Article 239AA of the
Constitution, as interpreted by this Court. This Notification reads as
under:
B
“
MINISTRY OF HOME AFFAIRS
NOTIFICATION
New Delhi, the 21st May, 2015
S.O. 1368(E).—Whereas article 239 of the Constitution provides C
that every Union Territory shall be administered by the President
acting, to such extent as he thinks fit, through an administrator to
be appointed by him with such designation as he may specify;
And whereas article 239AA inserted by ‘the Constitution (Sixty-
ninth Amendment) Act, 1991’ provides that the Union Territory of D
Delhi shall be called the National Capital Territory of Delhi and
the administrator thereof appointed under article 239 shall be
designated as the Lieutenant Governor;
And whereas sub-clause (a) of clause (3) of article 239AA states
that the Legislative Assembly shall have power to make laws for E
the whole or any part of the National Capital Territory with respect
to any of the matters enumerated in the State List or in the
Concurrent List in so far as any such matter is applicable to Union
Territories except matters with respect to Entries 1, 2 and 18 of
the State List and Entries 64, 65 and 66 of that List in so far as
they relate to the said Entries 1, 2 and 18; and whereas Entry 1 F
relates to ‘Public Order’, Entry 2 relates to ‘Police’ and Entry 18
relates to ‘Land’.
And whereas sub-clause (a) of clause (3) of article 239AA also
qualifies the matters enumerated in the State List or in the
Concurrent List in so far as any such matter is applicable to Union G
Territories. Under this provision, a reference may be made to
Entry 41 of the State List which deals with the State Public
Services, State Public Service Commission which do not exist in
the National Capital Territory of Delhi.
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116 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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
B
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
C 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
D 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,
E 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.
F
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
G Governor of the National Capital Territory of Delhi, shall in
respect of matters connected with ‘Public Order’, ‘Police’,
‘Land’ and ‘Services’ as stated hereinabove, exercise the
powers and discharge the functions of the Central Government,
to the extent delegated to him from time to time by the President.

H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 117
[A. K. SIKRI, J.]

Provided that the Lieutenant Governor of the National Capital A
Territory of Delhi may, in his discretion, obtain the views of the
Chief Minister of the National Capital Territory of Delhi in
regard to the matter of ‘Services’ wherever he deems it
appropriate.
2. In the Notification number F. 1/21/92-Home (P) Estt. 1750 B
dated 8th November, 1993, as amended vide notification dated
23rd July, 2014 bearing No. 14036/4/2014-Delhi-I (Pt. File), for
paragraph 2 the following paragraph shall be substituted, namely:—
“2. This notification shall only apply to officials and employees
of the National Capital Territory of Delhi subject to the C
provisions contained in the article 239AA of the Constitution.”
after paragraph 2 the following paragraph shall be inserted,
namely:—
“3. The Anti-Corruption Branch Police Station shall not take
any cognizance of offences against Officers, employees and D
functionaries of the Central Government”.
3. This Notification supersedes earlier Notification number S.O.
853(E) [F. No. U-11030/2/98- UTL] dated 24th September, 1998
except as respects things done or omitted to be done before such
supersession. E
[F. No. 14036/04/2014-Delhi-I (Part File)]
RAKESH SINGH, Jt. Secy.”
74. Pertinently, this Notification in respect of ‘Services’, mentions
about Union Territories cadre consisting of Indian Administrative Service
and Indian Police Service personnel. There is no dispute that this cadre F
is common to all the Union Territories and Delhi is only one of them. It
is also not in dispute that this cadre is administered 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.
G
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.
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118 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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
B
to him, that was the only function of the Joint Cadre Authority under the
All India Services (Joint Cadre) Rules, 1972 inasmuch as Rule 5(1) therein
stipulates to: “determine the names of the members of All India
Services who may be required to serve from time to time in connection
with affairs of each of the constituent States and the period or
C purpose for which their services shall be available to that
Government”. However, submits the counsel, once particular officers
are allocated to NCTD, during their tenure in NCTD, it is within the
powers of the GNCTD to assign them to particular departments. In
support of this submission, he referred to the following Rules:
D “The All-India Services (Joint Cadre) Rules, 1972
2. Definitions – In these rules, unless the context other requires, –
(a). “Joint Cadre Authority” means the Committee of
Representatives referred to in rule 4.

E xx xx xx
4. Committee of representatives -
(1) There shall be a Committee consisting of a representative
of each of the Governments of the Constituent States, to be
called the Joint Cadre Authority.
F
(2) The representatives of the Governments of the Constituent
States may either be members of an All-India Service or
Ministers in the Council of Ministers of the Constituent States,
as may be specified by the Governments of the Constituent
States.”
G The Indian Administrative Service (Cadre) Rules, 1954
2. Definitions:- In these rules, unless the context otherwise
requires -
xx xx xx
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 119
[A. K. SIKRI, J.]

(c) ‘State’ means a State specified in the First Schedule to the A
constitution and includes a Union Territory.
(d) ‘State Government concerned’, in relation to a Joint cadre,
means the Joint Cadre Authority.
xx xx xx
B
7. Postings – All appointments to cadre posts shall be made:-
(a) in the case of a State cadre, by the State Govt.; and
(b) in the case of a Joint Cadre, by the State Government
concerned.
C
(c)(i) The Central Government, in consultation with the State
Government or State Governments concerned, may determine the
tenure of all or any of the cadre posts specified for the State
concerned in item 1 of the Schedule to the Indian Administrative
Service (Fixation of Cadre Strength) Regulation, 1955.
D
(c)(ii) A cadre officer, appointed to any post for which the tenure
has been so determined, shall hold the minimum tenure as prescribed
except in the event of promotion, retirement, deputation outside
the State or training exceeding two months.
(c)(iii) An officer may be transferred before the minimum
prescribed tenure only on the recommendation of a Committee E
on Minimum Tenure as specified in the Schedule annexed to these
rules.”
xx xx xx
11A. Authority to exercise certain powers in respect of F
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 G
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
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120 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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
B Cadre to NCT of Delhi, the post to which such officer is posted/deputed
is determined by the GNCTD. Consequently, if within the GNCTD, the
said officer has to be posted from one post to the another, it is the GNCTD
alone which has the powers under the Service Rules. This is in
consonance with the position that prevails in the states of Arunachal
Pradesh, Mizoram and Goa which are also members of the Joint Cadre
C in the AGMUT Cadre and who like the NCTD and unlike other Union
Territories have a representative in the Joint Cadre Authority.
77. Likewise, insofar as DANICS is concerned, the submission is
that under the Delhi, Andaman & Nicobar Islands, Lakshasweep, Daman
& Diu and Dadra & Nagar Haveli Civil Services Rules, 2003, same
D consequence follows. Following Rules were referred to:
“11. Appointment to the Service -
All appointment to the Service shall be made by the Appointing
Authority to the Junior Administrative Grade-I or Junior
E Administrative Grade-II or Selection Grade or Entry Grade of
the Service and not against any specific post included in the
Service.
12. Posting -
Every member of the Service allocated to an Administration
F shall, unless he is appointed to an ex-cadre post, or is otherwise
not available for holding a duty post owing to the exigencies of
the public service, be posted against a duty post under the
Administration by the Administrator concerned.
13. Allocation of members of the Service -
G The Government shall, from time to time, allocate a member of
the Service to any Administration for posting in terms of rule
12.”

H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 121
[A. K. SIKRI, J.]

78. It is argued that under the DANICS Rules, as per Rule 2(a) A
‘Administration’ means the GNCTD, as per Rule 2(b) ‘Administrator’
means the Administrator of NCTD and as per Rule 2(k) ‘Government’
means the Government of India. Thus, while it is the Government of
India that makes an officer available to GNCTD under Rule 13, the
posting of that DANICS officer within the NCTD is to be made by the
B
Administrator on the aid and advice of the Council of Ministers.
79. Mr. C.A. Sundaram, learned senior counsel who argued on
behalf of the Union of India on this particular issue, submitted that Entry
41 in List II cannot be applied to the NCTD as the said Entry is confined
to ‘State public services’ and ‘State Public Service Commission’.
Indubitably, there was no Public Service Commission in NCTD. The C
other part refers to State Public Services whereas the services in respect
of which the impugned Notification dated May 21, 2015 is issued, pertains
to 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 D
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. E
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: F

(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; G
or
(ii) in which he is required by or under any law to act in his
discretion or to exercise any judicial functions.
(2) If any question arises as to whether any matter is or is not a
matter as respects with the Lieutenant Governor is by or under H
122 SUPREME COURT REPORTS [2019] 3 S.C.R.

A any law required to act in his discretion, the decision of the
Lieutenant Governor thereon shall be final.
(3) If any questions arises as to whether any matter is or is not a
matter as respects with the Lieutenant Governor is by or under
any law required by any law to exercise any judicial or quasi-
B judicial functions, the decision of the Lieutenant Governor thereon
shall be final.”
80. According to Mr. Sundaram, discretion was conferred upon
the Lieutenant Governor in respect of this subject matter by virtue of
clause (i) of sub-section (1) of Section 41 as the matter falls outside the
C purview of the powers conferred on the Legislative Assembly. Therefore,
the President was competent to issue Notification dated May 21, 2015
thereby entrusting the powers and functions in respect of ‘Services’ to
the Lieutenant Governor. According to him, this was supported by Rule
46 of the Transaction of Business Rules which reads as under:

D “46. (1) With respect to persons serving in connection with the
administration of the National Capital Territory, the Lieutenant
Governor shall, exercise such powers and perform such functions
as may be entrusted to him under the provisions of the rules and
orders regulating the conditions of service of such persons or by
any other order of the President in consultation with the Chief
E Minister, if it is so provided under any order issued by the President
under article 239 of the Constitution.
(2) Notwithstanding anything contained in sub-rule (1) the
Lieutenant Governor shall consult the Union Public Service
Commission on all matters on which the Commission is required
F to be consulted under clause (3) of article 320 of the Constitution;
and in every such case he shall not make any order otherwise
than in accordance with the advice of the Union Public Service
Commission unless authorised to do so by the Central Government.
(3) All correspondence with Union Public Service Commission
G and the Central Government regarding recruitment and conditions
of service of persons serving in connection with the administration
of National Capital Territory shall be conducted by the Chief
Secretary or Secretary of the Department concerned under the
direction of the Lieutenant Governor.”
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 123
[A. K. SIKRI, J.]

81. Insofar as Notification dated September 24, 1998 is concerned, A
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
B
‘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 C
about change only in respect of such consultative process, i.e.
‘consultation’ with the Chief Minister, as being done away with. This
became necessitated, according to him, because of the problems which
the Lieutenant Governor was facing even in undertaking consultations
with the Chief Minister. Therefore, now it is entirely within the discretion
D
of the Lieutenant Governor to have the views of the Chief Minister or
not. To that extent this Notification is only clarification of the earlier
Notification dated September 24, 1998 and in substance the legal
implications of this Notification were exactly the same as Notification
dated September 24, 1998. Learned counsel also argued that the
Constitution provides for services of the States and services of the Union. E
All Union Territories services are services of the Union, as held in a
recent judgment of this Court in Bir Singh v. Delhi Jal Board and
Others4. For example, in Delhi, IAS, DANICS & DASS cadre, as also
teachers and doctors, are services of the Union and the recruitment
rules have been framed with the approval of the President or of
F
Lieutenant Governor as a nominee of the President. The learned counsel
also pointed out that Rule 46 of the Transaction of Business Rules, along
with the delegation made by the President under Article 239AA of the
Constitution from time to time, has always been governing the process
of transfer/posting of officers working with the GNCTD.
82. Fervent plea of Mr. Sundaram was that a just and fair G
mechanism could be similar to the one which prevailed in earlier years
prior to 2015, viz. that 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
4
(2018) 10 SCC 312 H
124 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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
B
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
C Secretary for Grades II and I level officers. The Board can decide on
the transfer and postings of these DASS cadre officers. He also pointed
out that for IAS officers, a Civil Services Board headed by the Chief
Secretary already exists and the recommendations of the same are being
sent to the Lieutenant Governor. Similar Board can also be formed for
DANICS officers. His suggestion was that similar mechanism of
D
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
E 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 Others5 wherein a four Judge Bench
of this Court held that the ‘State’ includes a Union Territory for the
F purposes of Article 312 of the Constitution in the following manner:
“8. It follows therefore that, as and from November 1, 1956, when
the Constitution (Seventh Amendment) Act, 1956, came into force,
the President had the power to adapt the laws for the purpose of
bringing the provisions of any law in force in India into accord
G with the provisions of the Constitution. It was under that power
that the President issued the Adaptation of Laws (No. 1) Order,
1956, which, as has been shown, substituted a new clause (58) in
Section 3 of the General clauses Act providing, inter alia, that the
expression “State” shall, as respects any period after the
5
(1976) 3 SCC 743
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 125
[A. K. SIKRI, J.]

commencement of the Constitution (Seventh Amendment) Act, A
1956, mean “a State specified in the First Schedule to the
Constitution and shall include a Union Territory”. It cannot
be said with any justification that there was anything repugnant in
the subject or context to make that definition inapplicable. By
virtue of Article 372A(1) of the Constitution, it was that definition
B
of the expression “State” which had effect from the first day of
November, 1956, and the Constitution expressly provided that it
could “not be questioned in any court of law”. The High Court
therefore went wrong in taking a contrary view and in
holding that “Union territories are not ‘States’ for purposes
of Article 312(1) of the Constitution and the preamble to C
the Act of 1951". That was why the High Court erred in holding
that the definition of “State” in the Cadre Rules was ultra vires
the All India Services Act, 1951 and the Constitution, and that the
Union territories cadre of the service was “not common to the
Union and the States” within the meaning of Article 312(1) of the
D
Constitution, and that the Central Government could not make the
Indian Administrative Service (Cadre) Rules, 1954 in consultation
with the State Governments as there were no such governments
in the Union territories.
(emphasis supplied)”
E
The above decision has also been noted, with approval, in
paragraph 125 in the opinion of Chandrachud J. in the Constitution Bench
judgment.
84. From the respective arguments of the parties reproduced above,
it becomes clear that following aspects are undisputed: F
(a) 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.
(b) These are All India Services and the cadre in question is Union G
Territory Cadre 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.
H
126 SUPREME COURT REPORTS [2019] 3 S.C.R.

A (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.
B 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
C submission on behalf of the Union of India is that it comes within the
discretionary powers of the LG as the subject matter is not covered by
Entry 41 of List II and, therefore, by virtue of Section 41 of GNCTD
Act, the LG is empowered to act in his discretion in such a matter.
86. In the aforesaid backdrop, the first and foremost question is
D whether ‘services’ fall outside the purview of legislative assembly of
NCTD? To put it otherwise, whether Entry 41 of List II does not cover
the subject matter? Entry 41 of List II deals with ‘State Public Services’
and ‘State Public Service Commission’. It is undisputed that State Public
Service Commission does not exist in NCTD. When we are dealing
E with All India Services and DHANICS Services etc., it is also doubtful
to mention it as State Public Service.
87. The further issue, however, is to see as to whether it is within
the powers of GNCTD to assign such officers to particular departments,
once they are allocated to the NCTD by the joint cadre authority. As per
F Rule 2(c) of Indian Administrative Services (Cardre) Rules, 1954, State
includes a Union Territory. Rule 7 deals with posting and, inter alia,
stipulates that in the case of joint cadre, posting shall be by the State
Government concerned. In the context of Article 312 of the Constitution,
this Court has held in Prem Kumar Jain that Union Territories are
States for the purpose of the said Article.
G
88. 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.
H That is the dicta of Constitution Bench judgment. Therefore, it becomes
GOVT. OF NCT OF DELHI v. UNION OF INDIA 127
[A. K. SIKRI, J.]

equally doubtful as to whether it falls within the discretionary powers of A
the L.G.
89. The aforesaid discussion 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 B
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 view of C.B. Judgment. 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, we are of the C
opinion that for the 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 D
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 E
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 F
transparency, a Civil Services Board can be formed which can be headed
by the Secretary (Services) for Grades IV and III officials; by the Chief
Secretary for Grades II and I level officers. The Board can decide on
the transfer and postings of these DASS cadre officers. He also pointed
out that for IAS officers, a Civil Services Board headed by the Chief G
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
H
128 SUPREME COURT REPORTS [2019] 3 S.C.R.

A the Ministry of Home Affairs, an advisory can be given to that Ministry
to make these guidelines under the Transaction of Business Rules and to
provide consultation by the Lieutenant Governor with the Chief Minister
up to certain level of officers.
91. We may add that insofar as disciplinary authorities are
B 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.
C
92. In the interest of good governance and smooth Governmental
function, we expect that efforts will be made by both the Chief Minister
as well as the LG for a harmonious working relation.
Issue No.2: Whether the exclusion of the jurisdiction of the
D Anti-Corruption Branch (ACB) of the NCTD to investigate offences
committed under the Prevention of Corruption Act, 1987 by the
officials of the Central Government and limiting the jurisdiction of
the ACB to the employees of the GNCTD alone is legal?
93. On this issue, validity of few notifications is in question. It
E may be mentioned that vide 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 vide
F 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
G 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
H PART II – SECTION 3 – SUB SECTION (II)
GOVT. OF NCT OF DELHI v. UNION OF INDIA 129
[A. K. SIKRI, J.]

PUBLISHED BY AUTHORITY A
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 B
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 C
Government hereby declares that the notification number F.1/21/
92-Home (P) Estt.1750, dated the 8th November, 1993 issued by
the Lieutenant Governor of the National Capital Territory of Delhi
shall be applicable to the officers and employees of that
Government only and for that purpose amends the said notification, D
namely:-
In the said notification, after the existing Paragraph, the following
Paragraph shall be inserted, namely:-
“2. This notification shall apply to the officers and employees
of the Government of National Capital Territory of Delhi.” E
[F.no. 14036/4/2014-Delhi-I (Pt.File)]
I.S. Chahal, Jt. Secretary
xx xx xx
Notification dated May 21, 2015
F
THE GAZETTE OF INDIA
EXTRAORDINARY
PART II – SECTION 3 – SUB SECTION (II)
PUBLISHED BY AUTHORITY
NEW DELHI, THURSDAY, MAY 21, 2015/
VAISAKHA 31, 1937 G
MINISTRY OF HOME AFFAIRS
NOTIFICATION
New Delhi, the 21st May, 2015
S.O. 1368(E) – Whereas Article 239 of the Constitution provides
that every Union Territory shall be administered by the President H
130 SUPREME COURT REPORTS [2019] 3 S.C.R.

A acting, to such extent as he things fit, through an administrator to
be appointed by him with such designation as he may specify;
And whereas Article 239AA inserted by the Constitution (Sixty-
ninth Amendment) Act, 1991 provides that the Union Territory of
Delhi shall be called the National Capital Territory of Delhi and
B the administrator thereof appointed under Article 239 shall be
designated as the Lieutenant Governor.
And whereas sub-clause (a) of clause (3) of Article 239AA states
that the Legislative Assembly shall have power to make laws for
the whole or any pat of the National Capital Territory with respect
C to any of the matters enumerated in the State List or in the
Concurrent List insofar as any such matter is applicable to Union
Territories except matters with respect to Entries 1, 2 and 18 of
the State List and Entries 64, 65 and 66 of that List insofar as they
relate to the said Entries 1, 2 and 18; and whereas Entry 1 relates
to ‘Public Order’, Entry 2 relates to ‘Police’ and Entry 18 relates
D to ‘Land’.
And whereas sub-clause (a) of clause (3) of Article 239AA also
qualifies the matters enumerated in the State List or in the
Concurrent List insofar as any such matter is applicable to Union
Territories. Under this provision, a reference may be made to
E Entry 41 of the State List which deals with the State Public services,
State Public Service Commission which do not exist in the National
Capital Territory of Delhi.
Further, the Union Territories Cadre consisting of Indian
Administrative Service and Indian Police Service personnel is
F 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
G 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
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 131
[A. K. SIKRI, J.]

own State Public Services. Thus, ‘Services’ will fall within this A
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 B
List being ‘Public Order’, ‘Police’ and ‘Land’ respectively and
Entries 64, 65 & 66 of that list insofar as they relate to Entries 1,
2 & 18 as also ‘Services’ fall outside the purview of Legislative
Assembly of the National Capital Territory of Delhi and
consequently the Govt. of Nct of Delhi will have no executive C
power in relation to the above and further that power in relation to
the aforesaid subjects vests exclusively in the President or his
delegate, i.e. the Lieutenant Governor of Delhi.
Now, therefore, in accordance with the provisions contained in
Article 239 and sub-clause (a) of clause (3) of Article 239AA, D
the President hereby directs that –
(i) Subject to his control and further orders, the Lieutenant
Governor of the National Capital Territory of Delhi, shall, in
respect of matters connected with ‘Public Order’, ‘Police’,
‘Land’ and ‘services’ as stated hereinabove, exercise the E
powers and discharge the functions of the Central Government
to the extent delegated to him from time to time by the President.
Provided that the Lieutenant Governor of the National Capital
Territory of Delhi may, in his discretion, obtain the views of the
Chief Minister of the National Capital Territory of Delhi in F
regard to the matter of ‘services’ wherever he deems it
appropriate.
2. In the Notification number F.1/21/92-Home (P) Estt. 1750,
dated 8th November, 1993, as amended vide Notification dated
23rd July, 2014 bearing No. 14036/4/2014-Delhi-I (Pt. File), for
G
Paragraph 2 the following Paragraph shall be substituted, namely:-
“2. This notification shall only apply to officials and employees
of the National Capital Territory of Delhi subject to the
provisions contained in the Article 239AA of the Constitution.”
H
132 SUPREME COURT REPORTS [2019] 3 S.C.R.

A after paragraph 2 the following paragraph shall be inserted,
namely:-
“3. The Anti-Corruption Branch Police Station shall not take
any cognizance of offences against Officers, employees and
functionaries of the Central Government.”
B 3. This Notification supersedes earlier Notification number S.O.
853 (E) (F.No. U-11030/2/98-UTL) dated 24th September, 1998
except as respects things done or omitted to be done before such
supersession.
[F.No. 14036/4/2014-Delhi-I (PartFile)]
C RAKESH SINGH, Jt. Secy.”
94. The validity of these Notifications is challenged on three
grounds: First, post the 69th Amendment, the Central Government is not
the “State Government” within the meaning of Section 2(s) of Cr.P.C.
Second, the impugned notifications create a class of offenders immune
D 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.
E
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
F State Government for the purpose of exercising the powers u/s. 2(s) of
the Cr.P.C. It is submitted that though a cursory reading of the definition
of the ‘State Government’ contained in Section 3(6) of the General
Clauses Act, 1897 (GC Act) includes the Central Government and makes
it a State Government in respect of Delhi for the purpose of exercising
G power under Section 2(s) of the Cr.P.C., but that is not the correct legal
position. The contention is that Section 3(60) of the GC Act containing
the definition of the ‘State Government’ was enacted prior to the 69th
Amendment to the Constitution. Article 239AA and the cognate Articles
were inserted/amended by the said Constitutional amendment. Pursuant
to the aforesaid amendment, the Parliament enacted the GNCTD Act.
H The said amendment and the said Act came in force on February 01,
GOVT. OF NCT OF DELHI v. UNION OF INDIA 133
[A. K. SIKRI, J.]

1992. In view of the aforesaid change in the Constitution and enactment A
of the GNCTD Act, the Central Government is not the State Government
in respect of territory of Delhi for the purpose of Section 2(s) of Cr.P.C.
The power to issue notification under Section 2(s) is now vested with
the Delhi Government. Reference is made to Entry 2 of List III of the
Seventh Schedule, which reads as under:
B
“2. Criminal procedure, including all matters included in the Code
of Criminal Procedure at the commencement of this Constitution.”
96. It is, therefore, submitted that the Legislative Assembly for
Delhi has legislative competence in respect of Cr. P.C, which is directly
relatable to Entry 2 of List III. Further the Delhi Government has exclusive C
executive power in respect of criminal procedure, in terms of Para 218
and 219 of the Constitution Bench Judgment. Section 3(58) of the GC
Act defines the expression “State”. The definition inter alia lays down
that the Union Territory is a State. From this, it is sought to be buttressed
that it logically follows that any Government which administers affairs
of the Union Territory of Delhi is a State Government. D

97. To support the aforesaid plea, certain judgments are relied
upon. In Ukha Kolhe v. State of Maharashtra6, a Constitution Bench
of this Court has held as under:
“18...It is true that power to legislate on matters relating to E
Criminal Procedure and evidence falls within the Third List
of the Seventh Schedule to the Constitution and the Union
Parliament and the State Legislature have concurrent
authority in respect of these matters. The expression
“criminal procedure” in the legislative entry includes
investigation of offences, and ss. 129A and 129B must be F
regarded as enacted in exercise of the power conferred by Entries
2 and 12 in the Third List….
(emphasis supplied)”
Judgments of some High Courts are also cited.
G
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
6
(1964) 1 SCR 926 : AIR 1963 SC 1531
H
134 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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
B
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
C given. During the aforementioned period, the police force was governed
by the Police Act, 1861, Section 40 of the Punjab Laws Act, 1872 as in
force in Delhi and the Bombay Police Act, 1951 as in force in Delhi.
The criminal procedure was governed by the Criminal Procedure Code,
1898. The Criminal Procedure Code, 1973 came into force w.e.f. April
1, 1974 though it was gazetted on January 25, 1974. In this context, the
D
President of India issued the notification dated March 20, 1974. A series
of notifications, beginning from the year 1974, in respect of establishment
and functioning of the ACB have been issued by the President and
Administrator/LG in exercise of powers under Article 239(1) of the
Constitution and Section 2(s) Cr.P.C., 1973 read with Delhi Police Act.
E Significantly, notifications issued prior to July 23, 2014 have not been
challenged. Some of these notifications were issued even before the
insertion of Article 239AA (February 01, 1992). The first notification
was issued by the President on March 20, 1974 in exercise of powers
under Article 239(1) of the Constitution. The notification directs the
Administrators of all UTs other than Arunachal Pradesh and Mizoram
F
to exercise, subject to control of the President and until further orders,
the powers and functions under Cr.P.C., 1973 as mentioned in the annexed
schedule. The notification has a condition that the Central Government
may itself exercise all or any of those powers and functions if it deems
necessary. This notification confers powers on the Administrator of UT
G Delhi to exercise powers under Section 2(s) Cr.P.C., 1973. In pursuance
of the delegation of powers by the President of India vide notification
dated March 20, 1974 and in exercise of powers under Section 2(s) of
Cr.P.C., 1973 the Lieutenant Governor declared ACB of Delhi
Administration at Tis Hazari, Delhi to be a police station for offences
under Section 161 and 165A IPC, and PC Act, 1947 with jurisdiction
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 135
[A. K. SIKRI, J.]

over whole of UT, Delhi vide notification dated May 20, 1975. Thus, A
ACB was established as a police station by Administrator UT Delhi.
Thereafter, the Rules of Procedure for inquiries and investigation by
ACB were revised on February 17, 1977. Rule 2 declared that all the
Rules and Regulations applicable to the Delhi Police are also applicable
to the ACB. Rule 3 prescribed the functions of ACB. Rule 5 mentioned
B
that ACB would be under the direct charge of a Superintendent of Police.
Rule 15(v) provides that ordinarily no inquiries should be made 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 C
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.
D
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 E
of the Administrator. It also covers preservation of public order and
peace through provisions under Chapter IV and V. The Administrator
can make rules under Section 147. Section 149 contemplates cessation
of old laws regulating police mentioned in Schedule II but it preserves
the Rules and Standing Orders, appointments made etc. insofar as they
F
are consistent with the Act. It also preserves the pending investigation
and legal proceedings. Vide Section 150 the police force functioning in
Delhi was deemed to be the police force constituted under the Delhi
Police Act, 1978 with designations mentioned in Schedule III. It is
submitted by Mr. Dwivedi that this Act has to be read along with Cr.P.C.,
1973. G
99. Vide notification dated August 1, 1986 issued by the
Administrator of UT Delhi it was provided, in supersession of his previous
notification dated May 20, 1975, and August 23, 1975 and issued in
exercise of powers under Section 2(s) Cr.P.C. 1973 read with notification
H
136 SUPREME COURT REPORTS [2019] 3 S.C.R.

A dated March 20, 1974, that ACB Delhi Administration at Tis Hazari,
Delhi would be police station in relation to offences under Section 161 to
165A IPC and the Prevention of Corruption Act, 1947 and also attempts,
abetment and conspiracies in relation to said offences. It was to have
jurisdiction over the whole of UT Delhi. After the enforcement of the
Prevention of Corruption Act, 1988 which also omitted Section 161-
B
165A of IPC, the LG of NCTD issued notification dated November 08,
1993 in exercise of power under Section 2(s) CRPC read with notification
dated March 20, 1974 of GOI. This notification provided that ACB of
NCT Delhi at Old Secretariat would be police station for offences under
the PC Act 1988 and attempts, abetment and conspiracies in relation to
C or in connection with the said offences and any other offence committed
in the course of the same transaction rising out of the same set of facts.
Its jurisdiction was to be over the whole of NCT Delhi. This notification
was issued after the insertion of Article 239AA in the Constitution.
100. On September 24, 1998, the President issued a notification
D under Article 239(1) of the Constitution directing that subject to his control
and until further orders the LG OF NCT Delhi shall exercise powers
and discharge functions of the Central Government, to the extent delegated
in respect of matters connected with ‘public order’, ‘police’ and ‘services’
in consultation with Chief Minister except in those cases where, for
reasons to be recorded in writing, he does not consider it expedient to do
E 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
F 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
G 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
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 137
[A. K. SIKRI, J.]

covered the whole of UT Delhi but the context was evidently to deal A
with corruption in the Administration of UT Delhi. The nomenclature
‘Anti-corruption branch, Delhi administration’ also indicates the same.
The subsequent notification dated November 8, 1993 merely made
consequential changes on account of P.C. Act 1988 and change in status
of administration of Delhi as NCTD. What was necessarily implicit in
B
the said notifications was made clear by the subsequent notification dated
July 23, 2014 and May 21, 2015 with a view to avoid parallel exercise of
powers by CBI and ACB over officers, employees and functionaries of
the Central Government. This was also recommended by CVC. Here
it may be noted that while CBI is a police force created under DSPE
Act 1946 and ACB is established under Delhi Police Act 1978. The C
establishment of ACB is with respect to Entry 1 and 2 List II of Schedule
VII of the Constitution of India. The establishment of CBI and its power
of investigation falls under Entry 8/ 80 list I of Schedule VII whereas
the establishment of ACB would be under the Delhi Police Act, 1978.
102. He also submitted that Section 5 of PC Act, 1947 and Section D
of PC Act, 1988 envisage investigations of offences done by CBI/Delhi
Police. Hence, Union or Administrator acting under DSPE Act and
Delhi Police Act, 1978 can decide which of the two would investigate
officers, employees and functionaries of the Central Government. In
short five parliamentary Acts-Cr.P.C., 1973, PC Act, 1988, DSPE Act,
Delhi Police Act, 1978 and CVC Act have to be read together. E

103. In this hue, Mr. Dwivedi’s submission was that it now stands
established, even by the judgment of the Constitution Bench, that NCTD
is still a Union Territory to which Article 239 is applicable, notwithstanding
the insertion of Article 239AA. He further submitted that admittedly
Entry 2 in List II is outside the legislative competence of the Legislative F
Assembly of Delhi and, therefore, the Delhi Government could not
exercise executive authority in respect of this entry. Moreover, Entries
8 and 80 of List I are also outside the domain of NCTD over which the
Parliament and central executive has the exclusive jurisdiction. It is,
therefore, open to the Parliament and the Central Government to act in G
pursuance of Entries 8 and 80 of List I and provide certain exclusive
jurisdiction to CBI as regards investigation to be done by it.
104. Mr. Dwivedi accepted that Cr.P.C. involves a field which is
covered by Entry 2 List III of Seventh Schedule. His submission, however,
is that List III is the concurrent field both for the Parliament and the H
138 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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
B
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
C Cr.P.C. confers on it and this conferment should be specific and express.
105. Dr. A.M. Singhvi, learned senior counsel who appeared for
the intervenor/Reliance Industries, supported and added to the aforesaid
submissions, which would be taken note of in our discussion.
106. After considering the respective submissions, we find force
D in the arguments advanced by Mr. Rakesh Dwivedi predicated on the
historical developments narrated by him, and extracted above. We may
also emphasise that the issue is limited, viz., whether ACB is empowered
to register cases in respect of Central Government employees as well?
107. We find that the challenge laid by the appellant to these
E 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.
F This Court is required to look into the substance of such an exclusion
and cannot be guided by hyper technicalities. Even in the Constitution
Bench judgment it has been emphasised time and again, and in fact in all
the three opinions of the Hon’ble Judges, that the text of Article 239AA
is to be read contextually. Therefore, what has been specifically denied
to GNCTD, it cannot venture to gain that power on such a plea.
G
108. Dr. Singhvi rightly submitted that 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. A narrow or pedantic reading of the
entries has been repeatedly frowned upon. We are of the opinion that
H the scope of the term ‘Police’ as occurring in Entry 2 of List II cannot,
GOVT. OF NCT OF DELHI v. UNION OF INDIA 139
[A. K. SIKRI, J.]

therefore, be artificially restricted or limited to only constitution of the A
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
B
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 C
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 D
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 E
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 F
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 G
parallel jurisdiction of two police stations is to be demarcated. In fact,
parallel jurisdiction to investigate is not contemplated by Cr.P.C. as that
would result in chaos and anarchy and would frustrate the very purpose
of investigation. This leads us to hold that the Government which has
competence over Entry 2 List II would have power to segregate and
demarcate the jurisdiction to investigate as between two police forces. H
140 SUPREME COURT REPORTS [2019] 3 S.C.R.

A Hence the impugned notifications are valid. This conclusion becomes
inevitable when Cr.P.C. is read with the Delhi Police Act, 1978 and
other cognate enactments.
111. Here we have to keep mind the fact that Entry 1 of List II,
subject matter whereof is ‘public order’, also stands excluded from the
B purview of GNCTD and is the exclusive domain of the Parliament/
Central Executive. The term ‘public order’ has been assigned widest
amplitude and connotation (See – Stainislaus v. State of Madhya
Pradesh and Others7 and Zameer Ahmed Latifur Rehman Sheikh
v. State of Maharashtra and Others8). It is also held that ‘public
order’ includes cognizance of offences, search, seizure and arrest,
C 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.
112. In fact, there was a specific rational in excluding Entries 1, 2
and 18 of List II from the jurisdiction of the Government of NCTD. The
D 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
E point of control and coordination’. This rationale behind the aforesaid
exclusion directly flows from the unique position occupied by the NCTD
as the nation’s capital and seat of the Central Government.
113. Also, the opinion of Chandrachud, J. at paragraph 29 notes
that exclusion of inter alia ‘police’ and ‘public order’ was a
F “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:
G “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
7
(1977) 1 SCC 677
H 8
(2010) 5 SCC 246
GOVT. OF NCT OF DELHI v. UNION OF INDIA 141
[A. K. SIKRI, J.]

and land from the legislative power and necessarily from the A
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… B
(paragraph 74)”
114. Pertinently, the appellant wants exclusive executive power
in respect of the entries in List II, except Entries 1, 2 and 18, as well as
all the subjects over List III. In this behalf, as noted above, contention
of the appellant is that the Constitution Bench has so decided. However, C
when it comes to excepted matter in Entry 2 List II, though powers of
NCTD are totally excluded, by indirect method the appellant wants
concurrent jurisdiction over the same. It would be difficult to accept
such a position. It is also pertinent to mention that insofar as Notification
dated November 08, 1993 is concerned, whereby ACB of NCTD at Old
Secretariat as police station was created by the Lieutenant Governor, D
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 E
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. F
115. We, thus, uphold the validity of Notifications dated July 23,
2014 and May 21, 2015.
Issue No.3: Whether the GNCTD is an ‘appropriate
Government’ under the COI Act?
116. The relevant entries in the Seventh Schedule are Entry 94 of G
List I and Entry 45 of List III. These are as under:
“Entry 94 List I
Inquiries, surveys and statistics for the purpose of any of the
matters in this List.
H
142 SUPREME COURT REPORTS [2019] 3 S.C.R.

A Entry 45 List III
Inquiries and statistics for the purposes of any of the matters
specified in List II or List III.”
117. The COI Act is the Central enactment. For understanding
the issue involved, we may refer to the definition of ‘appropriate
B Government’ contained in Section 2(a) of this Act, which reads as under:
“”appropriate Government” means –
(i) the Central Government, in relation to a Commission appointed
by it to make an inquiry into any matter relatable to any of the
C entries enumerated in List I or List II or List III in the Seventh
Schedule to the Constitution; and
(ii) the State Government, in 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
D 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
E 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:
F “(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
G Government” in the above definition of “appropriate Government”
does not include the Government of NCT of Delhi, the High Court has
applied the definition of State Government under Section 3(60) of the
GC Act and this is another issue where the said definition has been
mechanically applied, without understanding the context or text of the
enactment.
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 143
[A. K. SIKRI, J.]

120. In respect of this issue, the High Court has held that “In the A
light of the clear and unambiguous definitions of the Central Government
and State Government under Section 3(8) and Section 3(60) respectively
of the GC Act, we are of the view that the expression ‘appropriate
Government’ in respect of Union Territories shall be the Central
Government only” and further held that even if GNCTD is appropriate
B
government, that the impugned notification appointing the Commission
of Enquiry could not be sustained as the same was passed without seeking
views/concurrence of the Lieutenant Governor. It was argued that as
far as the concurrence of the Lieutenant Governor is concerned, it has
already been held by the Constitution Bench that no concurrence is
required.9 C
121. Attention was also drawn to the Statement of Objects and
Reasons appended to the original Bill No. 39 of 1952 introduced in
Parliament to bring about the enactment the Commissions of Inquiry
Act, 1952. It reads as follows:
“Commissions and Committees of Inquiry are at present appointed D
by Government under executive order; there is no central law
to regulate the power of such bodies. Some of them have felt
handicapped because of the absence of any statutory power
to enforce the attendance of witnesses and the production
of documents. In order to remove this difficulty, ad hoc
legislation has been passed from time to time, such as for E
example, the Sugar Crisis Inquiring Authority Act, 1950. It
is felt that there should be a general law authorizing
Government to appoint an inquiring authority on any matter
of public importance, whenever considered necessary, or
when a demand to that effect is made by the Legislature and that F
such law should enable the inquiring authority to exercise certain
specific powers including the powers to summon 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
G
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
9
However, we may add here that even if no concurrence is required, the matter has to
be sent to the LG for his views, in terms of proviso to Article 239AA(4), which, of
course, has to be within the parameters specified in the opinion authored by Justice H
Chandrachud and contained in paras 140-142 already extracted above.
144 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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
B
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
C resources or primary health centres in order to better inform itself for
the formulation of policy.
123. On the above basis, it is argued that reliance on Section
3(60) of the GC Act is unsustainable. The High Court has applied Section
3(60) of the GC Act without understanding the context of appointment
D of Commission of Inquiries and without appreciating that the COI Act is
only a procedural mechanism for exercise of power which exists
independent of this Act in the NCT of Delhi.
124. On this subject matter, Mr. Maninder Singh responded to the
aforesaid arguments of Mr. Naphade. His first submission is that COI
E Act is a Parliamentary enactment and, therefore, implementation thereof
has to be as per the provisions of the said Act. He referred to para 12 of
the judgment in Rai Sahib Ram Jawaya Kapur’s case which reads as
under:
“12. It may not be possible to frame an exhaustive definition of
F what executive function means and implies. Ordinarily the
executive power connotes the residue of governmental functions
that remain after legislative and judicial functions are taken away.
The Indian Constitution has not indeed recognised the doctrine
of separation of powers in its absolute rigidity but the functions of
the different parts or branches of the Government have been
G
sufficiently differentiated and consequently it can very well be
said that our Constitution does not contemplate assumption, by
one organ or part of the State, of functions that essentially belong
to another. The executive indeed can exercise the powers of
departmental or subordinate legislation when such powers are
H delegated to it by the legislature.
GOVT. OF NCT OF DELHI v. UNION OF INDIA 145
[A. K. SIKRI, J.]

It can also, when so empowered, exercise judicial functions in a A
limited way. The executive Government, however, can never go
against the provisions of the Constitution or of any law. This is
clear from the provisions of Article 154 of the Constitution but, as
we have already stated, it does not follow from this that in order
to enable the executive to function there must be a law already in
B
existence and that the powers of the executive are limited merely
to the carrying out of these laws.”
Adverting to the provisions of COI Act, he submitted that Section
2(a) defines “appropriate government”. According to him, clause 2(i)
which defines “State Government” does not include GNCTD.
C
125. Mr. Gautam Khazanchi, advocate who appeared on behalf
of respondent No. 1 in 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 D
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, E
1991. The learned counsel submitted that in State (NCT of Delhi) v.
Navjot Sandhu Alias Afsan Guru10, 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:
F
“11. As regards the sanction under Section 196 CrPC it is recited
in the sanction order (Ext. P-11/2) that the Lieutenant Governor
acted in exercise of powers conferred by sub-section (1) of
Section 196 CrPC read with the Government of India, Ministry of
Home Affairs notification dated 20-3-1974. Under that notification,
there was delegation of powers to the Lieutenant Governor to G
grant sanction. The said notification which finds place in the
annexures to the written submissions made on behalf of Gilani
shows that it was issued under Article 239(1) of the Constitution
enabling the Administrator of the Union Territory to discharge
10
(2005) 11 SCC 600
H
146 SUPREME COURT REPORTS [2019] 3 S.C.R.

A powers and functions of the State Government under CrPC. We
accept the submission of the learned Senior Counsel for the State
that the delegation of power contained in the said notification will
continue to operate unless Parliament by law provides otherwise.
The Government of NCT of Delhi Act, 1991 does not in any way
affect the validity of delegation contained in the presidential
B
notification issued under Article 239.”
126. He pointed out that this judgment was also placed before the
Constitution Bench while considering the proposition that the executive
power of the State Government is limited under the Constitutional scheme,
even after the enactment of the GNCTD Act. Chandrachud, J. opined
C that:
“450. The issue as to whether the Lieutenant Governor of the
NCT is competent to accord sanction for prosecution under the
Prevention of Terrorism Act and the Code of Criminal Procedure
was considered by a two-Judge Bench of this Court in State (NCT
D of Delhi) v. Navjot Sandhu [State (NCT of Delhi) v. Navjot
Sandhu, (2005) 11 SCC 600 : 2005 SCC (Cri) 1715] (Navjot
Sandhu). In that case, sanctions under both the statutes were
accorded “by order and in the name of the Lieutenant Governor”.
The sanction under Section 50 of POTA was urged to be a nullity
on the ground that in relation to the Union Territory only the Central
E Government was competent to accord it. Section 2(1)(h) of POTA
defined the expression “State” in relation to a Union Territory, to
mean the Administrator thereof. Rejecting the challenge, this Court
held that under Article 239-AA, the Administrator appointed under
Article 239 does not lose his status as such and it is only his
F designation which is merged into the new designation of Lieutenant
Governor “in keeping with the upgraded status of this particular
Union Territory”. The Lieutenant Governor, who continues to be
an Administrator, was held to derive authority to grant sanction
under Section 50 by reason of the legislative fiction under Section
2(1)(h), the Administrator being deemed to be the State
G 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
H said authority is a valid sanction under Section 50 of POTA.”
GOVT. OF NCT OF DELHI v. UNION OF INDIA 147
[A. K. SIKRI, J.]

The decision in Navjot Sandhu [State (NCT of Delhi) v. Navjot A
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 B
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 C
decision.
128. In the alternative, and without prejudice to the aforesaid
arguments, the learned counsel argued that in any event, the notification
dated August 11, 2015 constituting Commission of Inquiry is violative of
GNCTD Act and ToBR. To buttress this submission, he referred to D
Section 45 of the GNCTD Act as well as Rule 23 of ToBR as per which
every decision taken by the Council of Ministers has to be communicated
to the LG to keep him apprised and to enable him to exercise the power
conferred upon him under Article 239AA(4) and the proviso thereof.
Unless the LG is kept informed of all decisions, he cannot exercise the E
Constitutional power to disagree vested upon him, if need be, and thus,
cannot make a reference to the President. Another submission of Mr.
Gautam Khazanchi was that the notification dated August 11, 2015 was
the result of malafide power of the GNCTD. According to him, the
matter had been investigated by the ACB, dealt with by the LG and was
also the subject matter of an Inquiry headed by a retired Chief Justice of F
a High Court. Initiation of a second round by constitution of Commission
of Inquiry to look into the very same allegations investigated by the ACB
was not only an abuse of the process but an excess of authority exercised
by it to do indirectly what it could not do directly.
129. From the arguments noted above, it becomes apparent that G
the outcome of this issue hinges upon the meaning that is to be assigned
to the expression ‘State Government’ occurring in Section 2(a) of the
COI Act which defines ‘Appropriate Government’. To put it otherwise,
whether the term State Government would include ‘Union Territory’?
For this purpose, one will have to fall back on the GC Act. Section 3(8) H
148 SUPREME COURT REPORTS [2019] 3 S.C.R.

A of the GC Act defines Central Government and relevant portion thereof
is as under:
“(8) “Central Government” shall-
(a) …
B (b) in relation to anything done or to be done after the
commencement of the Constitution, means the President; and shall
include-
(i) …
(ii) …
C
(iii) in relation to the administration of a Union Territory, the
administrator thereof acting within the scope of the authority given
to him under article 239 of the Constitution;”
130. Section 3(60) of the GC Act, on the other hand, defines State
Government, relevant provision whereof is extracted below:
D
“3(60) “State Government”-
(a) …
(b) …

E (c) as respects anything done or 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
F 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;
G
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
H a Union Territory;
GOVT. OF NCT OF DELHI v. UNION OF INDIA 149
[A. K. SIKRI, J.]

3(62A) “Union Territory” shall mean any Union Territory specified A
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 B
of ‘State Government’ which is defined in Section 2(60) of the GC Act.
Here, it is specifically provided that in respect of Union Territory, the
State Government would mean the Central Government.
133. It would be appropriate to remark that this aspect had come
up for consideration in the case of Goa Sampling Employees’ C
Association v. General Superintendence Co. of India11, though in the
context of definition of “Appropriate Government” contained in Section
2(a) of the Industrial Disputes Act. Goa was Union Territory at that
point of time. The workman had raised dispute and reference in this
respect was made by the Central Government to the industrial tribunal.
This power of Central Government to make the reference was challenged D
by the management taking a specific plea that the Central Government
was not the Appropriate Government in relation to the Union Territory.
This contention was repelled by the industrial tribunal but upheld by the
High Court. High Court had held that the administrator of the Union
Territory of Goa, Daman & Diu shall be the administrator who could E
make the reference. This Court set aside the order of the High Court
and upheld that of the industrial tribunal holding that Central Government
was the Appropriate Government in respect of Union Territory. After
referring to the definition of ‘Appropriate Government’ in Section 2(a)
of the Industrial Disputes Act, the Court relied upon the provisions of
GC Act contained in Section 3(8) and Section 3(60) thereof. The Court F
observed that there is a distinction between “States” and “Union
Territories” and also between “State Government” and “Administration
of a Union Territory”. It held that the “Administration of a Union
Territory” would not be comprehended in the expression “State
Government”. It was held that the “State Government” in a Union G
Territory would mean the “Central Government”, in terms of Section
3(60) of the GC Act. It would not be constitutionally correct to describe
the Administration of a Union Territory as a “State Government”. This
conclusion is arrived at in the following manner:
11
(1985) 1 SCC 206
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150 SUPREME COURT REPORTS [2019] 3 S.C.R.

A “12. Parliament enacted the Government of Union Territories Act,
1963 (“1963 Act” for short). Its long title reveals the object
underlying the enactment, namely, to provide for Legislative
Assemblies and Council of Ministers for certain Union Territories
and for certain other matters. Union Territory of Goa, Daman
and Diu is governed by the 1963 Act [See Section 2(h)]. The
B
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
C 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
D
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
E 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
F
Government that decides the point. And that is binding on the
Administrator and also the Ministers. Section 45 provides that
“the Chief Minister of a Union Territory shall be appointed by the
President”. Section 46 confers power on the President to make
rules for the conduct of business. Section 55 provides that “all
G contracts in connection with the administration of a Union Territory
are contracts made in the exercise of the executive power of the
Union and all suits and proceedings in connection with the
administration of a Union Territory shall be instituted by or against
the Government of India”. In exercise of the power conferred by
Article 240, the President has inter alia enacted the Goa, Daman
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 151
[A. K. SIKRI, J.]

and Diu (Laws) Regulation, 1962. By clause (3) of the regulation, A
the Acts enumerated in the Schedule appended to the Act were
extended to the Goa, Daman and Diu subject to the notifications,
if any, specified in the Schedule. The Schedule includes Industrial
Disputes Act, 1947 as a whole without any modification.
xx xx xx B
14. Would it be constitutionally correct to describe Administration
of a Union Territory as State Government? Article 1 provides that
“India, that is Bharat, shall be a Union of States”. Sub-article (2)
provides that “the States and the territories thereof shall be as
specified in the First Schedule”. Sub-article (3) introduced a C
dichotomy between the State as understood in the Constitution
and the Union Territory when it provides that “the territory of
India shall comprise— (a) the territories of the States; and (b)
the Union Territories specified in the First Schedule”. The
provisions of Part VI of the Constitution do not apply to the Union
Territories. Part VI of the Constitution which deals with States D
clearly indicates that the Union Territory is not a State. Therefore,
the Union Territory constitutionally speaking is something other
than a State. As far as the States are concerned, there has to be
a Governor for each State though it would be permissible to appoint
the same person as Governor of two or more States. Part VIII E
provides for 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 F
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 G
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
H
152 SUPREME COURT REPORTS [2019] 3 S.C.R.

A have clearly retained the distinction between State Government
and Administration of Union Territory as provided by the
Constitution. It is especially made clear in the definition of
expression “Central Government” that in relation to the
Administration of a Union Territory, the Administrator thereof
acting within the scope of the authority given to him under Article
B
239 of the Constitution, would be comprehended in the expression
“Central Government”. When this inclusionary part is put in
juxtaposition with exclusionary part in the definition of the
expression “State Government” which provides that as respects
anything done or to be done after the commencement of the
C Constitution (Seventh Amendment) Act, 1956, it shall mean, in a
State, the Governor, and in a Union Territory, the Central
Government, the difference conceptually speaking between the
expression “State Government” and the “Administration of a Union
Territory” clearly emerges. Therefore, there is no room for doubt
that the expression “Administration of a Union Territory”,
D
Administrator howsoever having been described, would not be
comprehended in the expression “State Government” as used in
any enactment. These definitions have been modified to bring
them to their present format by Adaptation of Laws (No. 1) Order,
1956. Section 3 of the General Clauses Act, 1897 provides that in
E all Central Acts and Regulations made after the commencement
of the Act unless there is anythingrepugnant in the subject or
context, the words defined therein will have the meaning assigned
therein. Indisputably the Industrial Disputes Act, 1947 is a Central
Act enacted after the commencement of the General Clauses
Act and the relevant definitions having been recast to meet the
F
constitutional and statutory requirements, the expressions “Central
Government”, “State Government” and “Union Territory” must
receive the meaning assigned to each in the General Clauses Act
unless there is anything repugnant in the subject or context in
which it is used. No such repugnancy was brought to our notice.
G Therefore, these expressions must receive the meaning assigned
to them.
15. The High Court after referring to the definitions of the
aforementioned three expressions as set out and discussed herein
first observed that on a careful reading of the definition, it appears
H “that in relation to the administration of a Union Territory, the
GOVT. OF NCT OF DELHI v. UNION OF INDIA 153
[A. K. SIKRI, J.]

Administrator thereof acting within the scope of the authority given A
to him under Article 239 of the Constitution is the Central
Government”. So far there is no dispute. The High Court then
observed 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
B
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 C
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
D
v. Shri Moula Bux [AIR 1962 SC 145 : (1962) 2 SCR 794 :
(1961) 2 SCJ 549] in which with reference to Part C States, some
observations have been made that “the authority conferred under
Article 239, as it then stood, to administer Part C States has not
the effect of converting those States into the Central Government,
and that under Article 239 the President occupies in regard to E
Part C States, a position analogous to that of a Governor in Part A
States and of a Rajpramukh in Part B States”. It was also observed
that “though the Part C States are centrally administered under
the provisions of Article 239, they do not cease to be States and
become merged with the Central Government”. It was then urged
F
that by the amendment to Articles 239 and 240 by the Constitution
(Seventh Amendment) Act, 1956 and introduction of Articles 239-
A and 239-B by the Constitution (Fourteenth Amendment) Act,
1962, only the nomenclature of the Part C States has undergone a
change, now being described as Union Territory, but the position
of the Union Territory is the same as it was as Part C States and G
therefore, the view taken in the aforementioned decisions that the
administration of Part C States could appropriately be described
as State Government would mutatis mutandis apply to the
administration of Union Territories. In other words, it was said
that they can be appropriately described as State Governments
H
154 SUPREME COURT REPORTS [2019] 3 S.C.R.

A for various purposes. Both the decisions were rendered prior to
the amendment of Part VIII of the Constitution in 1956 and the
insertion of the Articles 239-A and 239-B in 1962 and more
specifically after the enactment of the 1963 Act. The concept of
Union Territory with or without a Legislative Assembly and with
or without a Council of Ministers with specified legislative and
B
executive powers have been set out in the 1963 Act. Coupled
with this, modifications were made in the definitions of
aforementioned three expressions. Therefore, the two decisions
are of no assistance in resolution of the present controversy.”
134. We may also usefully refer to the opinion of Chandrachud, J.
C in the Constitution Bench judgment, where the learned Judge has
specifically dealt with the aforesaid case of Goa Sampling Employees
Association and held that there is no ‘State Government’ in the Union
Territory and the State Government shall mean the Central Government.
It is so stated in Para 448 of the opinion which reads as under:
D “448. Dealing with the provisions of Section 44(1) of the 1963
Act, this Court observed thus: (Goa Sampling case [Goa
Sampling Employees’ Assn. v. General Superintendence Co.
of India (P) Ltd., (1985) 1 SCC 206 : 1985 SCC (L&S) 201] ,
SCC p. 213, para 12)
E “12. … According to the proviso in the event of a difference
of opinion between the Administrator and the Ministers on any
matter, the Administrator shall refer it to the President for
decision given therein by the President, etc. Thus the executive
power of the Administrator extends to all subjects covered by
F 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
G 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)
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 155
[A. K. SIKRI, J.]

“14. … Now if we recall the definition of three expressions A
“Central Government” [Section 3(8)], “State Government”
[Section 3(60)] and “Union Territory” [Section 3(62-A)] in the
General Clauses Act, it would unmistakably show that the
Framers of the Constitution as also Parliament in enacting these
definitions have clearly retained the distinction between State
B
Government and Administration of Union Territory as provided
by the Constitution. It is especially made clear in the definition
of expression “Central Government” that in relation to the
Administration of a Union Territory, the Administrator thereof
acting within the scope of the authority given to him under
Article 239 of the Constitution, would be comprehended in the C
expression “Central Government”. When this inclusionary part
is put in juxtaposition with exclusionary part in the definition of
the expression “State Government” which provides that as
respects anything done or to be done after the commencement
of the Constitution (Seventh Amendment) Act, 1956, it shall
D
mean, in a State, the Governor, and in a Union Territory, the
Central Government, the difference conceptually speaking
between the expression “State Government” and the
“Administration of a Union Territory” clearly emerges.
Therefore, there is no room for doubt that the expression
“Administration of a Union Territory”, Administrator howsoever E
having been described, would not be comprehended in the
expression “State Government” as used in any enactment.”
The view of the High Court that the Administrator is the State
Government insofar as the Union Territory is concerned under
Section 3(60) was held to be in error. The decisions in Satya Dev F
Bushahri [Satya Dev Bushahri v. Padam Dev, AIR 1954 SC
587 : (1955) 1 SCR 549] and in State of Vindhya Pradesh v.
Moula Bux [State of Vindhya Pradesh v. Moula Bux, (1962) 2
SCR 794 : AIR 1962 SC 145] were distinguished since they were
rendered prior to the amendment of Part VIII of the Constitution
in 1956 and before the insertion of Articles 239-A and 239-B. The G
position in law was set out as follows: (Goa Sampling case [Goa
Sampling Employees’ Assn. v. General Superintendence Co.
of India (P) Ltd., (1985) 1 SCC 206 : 1985 SCC (L&S) 201] ,
SCC p. 217, para 17)
H
156 SUPREME COURT REPORTS [2019] 3 S.C.R.

A “17. … On a conspectus of the relevant provisions of the
Constitution and the 1963 Act, it clearly transpires that the
concept of State Government is foreign to the administration
of Union Territory and Article 239 provides that every Union
Territory is to be administered by the President. The President
may act through an Administrator appointed by him.
B
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
C 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
D 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.
E In the instant case, we are concerned with notification dated August 11,
2015 which is passed under the COI Act. We, therefore, uphold the
judgment of the High Court on this aspect.
Issue No.4: Whether, under Section 108 of the Electricity Act,
2003 and under Section 12 of the Delhi Electricity Reforms Act,
F 2000, the power to issue directions with the State Commission is
with the Government of NCT of Delhi?
137. On this issue, submissions were made by Mr. Kapil Sibal,
learned senior counsel, on behalf of GNCTD. In the first instance, he
referred to Section 108 of the Electricity Act which gives State
G Government the power to give directions to the State Electricity
Regulatory Commission (SCRC). It reads as under:
“Section 108. (Directions by State Government):
(1) In the discharge of its functions, the State Commission shall
be guided by such directions in matters of policy involving public
H interest as the State Government may give to it in writing.
GOVT. OF NCT OF DELHI v. UNION OF INDIA 157
[A. K. SIKRI, J.]

(2) If any question arises as to whether any such direction relates A
to a matter of policy involving public interest, the decision of the
State Government thereon shall be final.”
138. He pointed out that similar powers are conferred upon the
Central Government under Section 107 of the Electricity Act, namely, to
give directions to the Central Electricity Regulatory Commission (CERC). B
According to him, Delhi Electricity Reforms Act, 2000 (DERC Act),
with which we are concerned, contains Section 12 which is exactly on
the same terms as Section 108 of the Electricity Act. This provision
reads as under:
“12. Powers of the Government. C
(1) In the discharge of its functions, the Commission shall be
guided by such directions in matters of policy involving
public interest as the Government may issue from time to
time.
(2) If any question arises as to whether any such direction D
relates to a matter of policy involving public interest, the
decision of the Government thereon shall be final.
(3) The Government shall be entitled to issue policy directions
concerning any subsidy to be allowed for supply of
electricity or any other infrastructure services to any class E
or classes of persons.
Provided that the Government shall contribute an
amount to compensate the Board or any company affected
to the extent of the subsidy granted.
F
The Commission shall determine such amounts, the terms
and conditions on which and the time within which such
amounts are to be paid by the Government.
(4) The Government shall consult the Commission in relation
to any proposed legislation or rules concerning any policy
direction and may take into account the recommendations G
made by 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 H
158 SUPREME COURT REPORTS [2019] 3 S.C.R.

A “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".
B
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
C excepted where LG has to function in his own discretion, which was not
the case here. Moreover, DER Act was passed by Delhi Legislative
Assembly. Therefore, even the executive power of the Union will not
be there.
141. Mr. Sibal referred to the judgment of Constitution Bench in
D Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal
Pradesh Legislative Assembly & Ors. 12 which discusses in detail
discretionary power of the Governor under Article 163 of the Constitution.
This judgment also provides instances of situations wherein Governor
may exercise power “in his discretion” independent of, or, contrary to
E aid and advice of Council of Ministers. Based on that, Mr. Sibal submitted
that exercise of powers under the DER Act does not fall within the
domain of discretionary power of the LG and, therefore, he is supposed
to act on the aid and advice of Council of Ministers.
142. Reply of Mr. Maninder Singh to the aforesaid arguments
F was that the Electricity Act, 2003 is a Parliamentary enactment which
was passed after the insertion of Article 239AA. Under Section 108 of
the Electricity Act, 2003, it is the jurisdiction of the ‘State Government’
to issue any direction to DERC and such State Government, in relation
to Union Territory like Delhi, would mean Central Government as per
Section 3(60) of the GC Act. He also referred to Section 83(1)(b) of the
G Electricity Act, 2003 which makes it clear that for any Union Territory, it
would be Central Government which is the Appropriate Government.
143. While answering question No. 3 in the context of COI Act,
we have held that the expression ‘State Government’ occurring in Section
12
(2016) 8 SCC 1
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 159
[A. K. SIKRI, J.]

2(a) of the said Act which defines ‘Appropriate Government’ would not A
include GNCTD. That conclusion is arrived at while interpreting the
provisions of Section 2(a) of the COI Act. However, here we are
concerned with the Electricity Act, 2003 which also defines ‘Appropriate
Government’. Section 2(5) thereof reads as under:
“5. “Appropriate Government” means,- B
(a) the Central Government,-
(i) in respect of a generating company wholly or partly owned
by it;
(ii) in relation to any inter-State generation, transmission, trading C
or supply of electricity and with respect to any mines, oil-fields,
railways, national highways, airports, telegraphs, broadcasting
stations and any works of defence, dockyard, nuclear power
installations;
(iii) in respect of the National Load Despatch Centre and D
Regional Load Despatch Centre;
(iv) in relation to any works or electric installation belonging to
it or under its control;
(b) in any other case, the State Government having jurisdiction
under this Act; E
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 F
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 G
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
H
160 SUPREME COURT REPORTS [2019] 3 S.C.R.

A tariff payable for the use of transmission facility etc. In essence, such
powers are almost the same powers which are given to Central Electricity
Regulatory Commission (CERC). Thus, insofar as NCTD is concerned,
it has its own Commission, namely, DERC. DER Act also stipulates
powers of Government in Part IV thereof. General powers of the
Government, inter alia, include giving directions to the DERC in matters
B
of policy involving public interest, as the Government may issue from
time to time. These powers are akin to the powers given under Section
108 of the Electricity Act, 2003. Government is defined in Section 2(d)
of DER Act as under:
“2(d) “Government” means the Lieutenant Governor referred to
C in article 239AA of the Constitution;
145. Reading the aforesaid definition in the context of the
Constitution Bench judgment would clearly mean that LG here has to
act on the aid and advice of Council of Ministers, as such functions do
not come within his discretionary powers.
D
146. What follows from the aforesaid is that insofar as DER Act
is concerned, it is an enactment enacted by Legislative Assembly of
NCTD. It operates within the NCTD. Government here means GNCTD
i.e. LG who is supposed to act on the aid and advice of the Council of
Ministers. Under this Act, Delhi Government has power to issue
E 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
F 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, and going by the dicta laid down by the Constitution Bench, we
set aside the decision of the Delhi High Court on this aspect and hold
that it was within the jurisdiction of GNCTD to issue notification No.
F.11(58/2010/Power/1856) dated June 12, 2015. We may make it clear
G that we have not touched upon the merits of the said notification as that
is not the issue before us.
Issue No.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?
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 161
[A. K. SIKRI, J.]

147. The GNCTD had issued the notification dated August 4, A
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. This notification reads as under:
B
“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 C

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, D
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 E
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 District Rates for Rates for the F
No. agricultural agricultural land
land (Rs. Per falling in villages
acre) where land
pooling policy is
applicable (Rs.
per acre) G
1. East 1.00 Crore 2.25 crore
2. North – East 1.00 Crore 2.25 Crore
3. Shahdra 1.00 Crore 2.25 Crore
4. North 1.25 Crore 3.00 Crore
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162 SUPREME COURT REPORTS [2019] 3 S.C.R.

A
5. North West 1.25 Crore 3.00 Crore
6. West 1.25 Crore 3.00 Crore
7. South West 1.50 Crore 3.50 Crore
8. South 1.50 Crore 3.50 Crore
9. South East 1.50 Crore 3.50 Crore
B 10. New Delhi 1.50 Crore 3.50 Crore
11. Central 1.25 Crore 3.00 Crore

These revised rates shall come into force with immediate effect.
By order and in the name of the Lt. Governor of the National
C Capital Territory of Delhi,
Sd/- (Sanjay Kumar) IAS
Spl. Inspector General (Registration) ”
148. Validity of this notification was challenged on two counts,
namely:
D (a) As the notification is issued in the name of LG, prior
concurrence of LG was a pre-requisite for issuance of such a
notification.
(b) Subject matter of the notification i.e. fixation of circle rates
would fall under Entry 18 of List II over which the Parliament has
E the exclusive power inasmuch as it stands specifically excluded
from the purview of GNCTD.
149. Argument of the appellant/GNCTD is that fixation of circle
rate is not relatable to Entry 18 of List II i.e. ‘land’. It is the submission
that stamp duty is imposed on an instrument with regard to the title of
F the land and not the land itself. Therefore, a stamp duty would be levied
on an instrument and would affect the document evidencing the said
transfer of the agricultural land, but not 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
G 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.’
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 163
[A. K. SIKRI, J.]

150. The appellant has submitted that the phrase ‘other than those A
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
B
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 Union is empowered to levy stamp duty ONLY on the C
specific types of instruments specified under Entry 91 of List I. But the
State has been given the power to impose stamp duty on every other
type of document/instrument not mentioned under Entry 91 of List I.
152. It is also argued that it is general practice all over the country
for State Governments to set the circle rates for conveyance of immovable D
properties within the State. Examples of the same are Karnataka Stamp
[Prevention of Undervaluation of Instrument Rules], 1977; Tamil Nadu
Stamp [Prevention of Undervaluation of Instruments] Rules, 1968; Andhra
Pradesh Stamp [Prevention of Undervaluation of Instruments] Rules,
1975; West Bengal Stamp [Prevention of Undervaluation of Instruments]
Rules, 2001; Bihar Stamp [Prevention of Undervaluation of Instruments] E
Rules, 1995; Haryana Stamp [Prevention of Undervaluation of
Instruments] Rules, 1978; Madhya Pradesh Stamp [Prevention of
Undervaluation of Instruments] Rules, 1975; Chhattisgarh Stamp
[Prevention of Undervaluation of Instruments] Rules, 2001; Kerala Stamp
[Prevention of Undervaluation of Instruments] Rules, 1968; Maharashtra F
Stamp [Determination of true market value of property] Rules, 1995.
153. It was also pointed out that it was the Indian Stamp (Delhi
Amendment) Act, 2001 which was passed by the Legislative Assembly
of Delhi on 28th March, 2001 and received Presidential- assent on 18th
July, 2001 and the Indian Stamp (Delhi Amendment) Act, 2007 which G
was passed by the Legislative Assembly of Delhi on 18th September,
2007 and received the Presidential assent on 5th November, 2007 which
in fact first dealt with the stamp duty payable on conveyance deeds in
Delhi. Given that neither of these Acts have been challenged and in fact
the Union has given its assent to these Acts, it is submitted that there
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164 SUPREME COURT REPORTS [2019] 3 S.C.R.

A can be no question of the Union now questioning the power of the
GNCTD to collect such stamp duty and fix circle rates in respect of
such collections.
154. The appellant also stated that Section 27(3) of the Indian
Stamp Act, as amended in Delhi, that too with the express consent of
B the Union/President gives power to the Delhi Government to notify
minimum rates for land for the purpose of calculation of stamp duty i.e.
circle rate. Section 27(3) as amended for Delhi, reads as under:
“27. Facts affecting duty to be set forth in instrument
(3) In the case of instruments relating to land, chargeable
C 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
D 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
E
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.13, 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
F 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 Article 239, the power of the Union
under the Indian Stamp Act, 1899 for NCT Delhi had been delegated on
the LG. All the previous notifications for notifying the circle rates in
Delhi (July 18, 2007, March 14, 2008, November 15, 2011 etc.) had been
G
issued by the LG in exercise of his delegated power under Article 239.
156. From the respective submissions, it becomes apparent that
the entire controversy centers around the question as to whether the
impugned notification is relatable to Entry 18 of List II i.e. ‘land’ or the
13
(2004) 5 SCC 155
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 165
[A. K. SIKRI, J.]

subject matter falls within the scope of Entry 63 of List II. Entry 18 of A
List II reads as under:
“18. Land, that is to say, rights in or over land, land tenures including
the relation of landlord and tenant, and the collection of rents;
transfer and alienation of agricultural land; land improvement and
agriculture loans; colonization.” B
We may also note the language of Entry 63 List II:
“63. Rates of stamp duty in respect of documents other than those
specified in the provisions of List I with regard to rates of stamp
duty.”
C
157. Insofar as Entry 91 of List I is concerned, subject matter
thereof is within the exclusive domain of the Centre/Parliament. It deals
with ‘rates of stamp duty in respect of wills of exchange, cheques,
promissory notes, bills of lading, letters of credit, policies of insurance,
transfer of shares, debentures, proxies and receipts’. It follows that
insofar as instruments mentioned in Entry 91 of List I are concerned, D
rates of stamp duty of such documents are within the exclusive domain
of the Union. In respect of other instruments, it is the State which has
the necessary jurisdiction to fix the rates of stamp duty.
158. It would be pertinent to note that the High Court in the
impugned judgment has arrived at a conclusion that notification dated E
August 4, 2015 revising the rates of agricultural land (circle rates) is
traceable to Entry 63 of List II and not to Entry 18 of List II. We are in
agreement with this conclusion. Said notification is issued under the
provisions of Indian Stamp Act and Delhi Stamp (Prevention of Under-
Valuation of Instruments) Rules, 2007. Circle rates are fixed for the F
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, 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 G
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/
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166 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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
B 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
C 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 no reference to the Central
Government is required as provided in Chapter V of the
Transaction of Business Rules.

D 108. Making a reference by the Lt. Governor to the Central
Government as provided under Chapter V of the Transaction of
Business Rules is possible only when the decision is communicated
to the Lt. Governor. Therefore, there is no substance in the
contention that an order can be passed pursuant to the decision of
the Council of Ministers without communicating such decision to
E the Lt.Governor for his views/concurrence with respect to any of
the matters enumerated in List-II or List-III except the three
reserved matters in Entries 1, 2 and 18 of List-II. The emphasis
sought to be laid by the learned Senior Counsels who appeared
for GNCTD on Rule 23 of the Transaction of Business Rules to
F substantiate the contention that those proposals which are
mentioned in Rule 23 alone are required to be submitted to Lt.
Governor is misplaced. The word “essentially” employed in Rule
23 makes clear the legislative intent that the proposals specified
(i) to (viii) therein are not exhaustive. Any interpretation contra
would render the Transaction of Business Rules ultra vires Clause
G (4) of Article 239AA of the Constitution.
xx xx xx
116. For the aforesaid reasons, we are of the considered view
that it is mandatory under the Constitutional scheme to
communicate the decision of the Council of Ministers to the Lt.
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 167
[A. K. SIKRI, J.]

Governor even in relation to the matters in respect of which power A
to make laws has been conferred on the Legislative Assembly of
NCTD and an order thereon can be issued only where the Lt.
Governor does not take a different view.
117. Hence, the contention on behalf of the Government of NCT
of Delhi that the Lt. Governor is bound to act only on the aid and B
advice of the Council of Ministers is untenable and cannot be
accepted.
161. The Constitution Bench judgment of this Court clarifies that
in all those matters which do not fall within the discretionary jurisdiction
of the LG, the LG is bound to act on the aid and advice of Council of C
Ministers. Further, majority opinion also holds that executive power of
the GNCTD extends to all the subject matters contained in List II (except
Entry 1, 2 and 18) as well as List III (wherein it has concurrent jurisdiction
along with the Central Government). That is the interpretation accorded
to clause (4) of Article 239AA. At the same time, this clause contains a
proviso as well which reads as under: D

“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 E
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:
F
“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 G
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 required to act in his discretion.
216. The proviso to clause (4) of Article 239-AA stipulates that
in case of a difference of opinion on any matter between the H
168 SUPREME COURT REPORTS [2019] 3 S.C.R.

A Lieutenant Governor and his Ministers, the Lieutenant Governor
shall refer it to the President for a binding decision. Further, pending
such decision by the President, in any case where the matter, in
the opinion of the Lieutenant Governor, is so urgent that it is
necessary for him to take immediate action, the proviso makes
him competent to take such action and issue such directions as he
B
deems necessary.
217. A conjoint reading of Article 239-AA(3)(a) and Article 239-
AA(4) reveals that the executive power of the Government of
NCT of Delhi is coextensive with the legislative power of the
Delhi Legislative Assembly which is envisaged in Article 239-
C AA(3) and which extends over all but three subjects in the State
List and all subjects in the Concurrent List and, thus, Article 239-
AA(4) confers executive power on the Council of Ministers over
all those subjects for which the Delhi Legislative Assembly has
legislative power.
D 218. Article 239-AA(3)(a) reserves Parliament’s legislative power
on all matters in the State List and Concurrent List, but clause (4)
nowhere reserves the executive powers of the Union with respect
to such matters. On the contrary, clause (4) explicitly grants to
the Government of Delhi executive powers in relation to matters
E 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
F of Punjab, AIR 1955 SC 549] which has been discussed elaborately
in the earlier part of the judgment.
xx xx xx
232. From the foregoing discussion, it is clear that the words
G “any matter” occurring in the proviso to Article 239-AA(4) do not
necessarily need to be construed to mean “every matter”. As
highlighted in the authorities referred to hereinabove, the word
“any” occurring in a statute or constitutional provision is not to be
mechanically read to mean “every” and the context in which the
word has been used must be given due weightage so as to deduce
H the real intention and purpose in which the word has been used.
GOVT. OF NCT OF DELHI v. UNION OF INDIA 169
[A. K. SIKRI, J.]

233. It has to be clearly understood that though “any” may not A
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
B
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 C
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
D
Council of Ministers. He cannot change the decision. That apart,
there is no provision for concurrence. He has the authority to
differ. But it cannot be difference for the sake of difference. It
cannot be mechanical or in a routine matter. The power has been
conferred to guide, discuss and see that the administration runs
for the welfare of the people and also NCT of Delhi that has been E
given a special status. Therefore, the word “any” has to be
understood treating as a guidance meant for the constitutional
authority. He must bear in mind the constitutional objectivity, the
needed advice and the realities.
234. The proviso to Article 239-AA(4), we say without any fear F
of contradiction, cannot be interpreted in a strict sense of the
mere words employed treating them as only letters without paying
heed to the thought and the spirit which they intend to convey.
They are not to be treated as bones and flesh without nerves and
neurons that make the nerves functional. We feel, it is necessary
in the context to read the words of the provision in the spirit of G
citizenry participation in the governance of a democratic polity
that is republican in character. We may hasten to add that when
we say so, it should not be construed that there is allowance of
enormous entry of judicial creativity, for the construction one
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170 SUPREME COURT REPORTS [2019] 3 S.C.R.

A intends to place has its plinth and platform on the Preamble and
precedents pertaining to constitutional interpretation and purposive
interpretation keeping in view the conception of sense and spirit
of the Constitution. It is, in a way, exposition of judicial sensibility
to the functionalism of the Constitution. And we call it constitutional
pragmatism.
B
235. The authorities in power should constantly remind themselves
that they are constitutional functionaries and they have the
responsibility to ensure that the fundamental purpose of
administration is the welfare of the people in an ethical manner.
There is requirement of discussion and deliberation. The fine
C 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.
236. Interpretation cannot ignore the conscience of the
D Constitution. That apart, when we take a broader view, we are
also alive to the consequence of such an interpretation. If the
expressions “in case of difference” and “on any matter” are
construed to mean that the Lieutenant Governor can differ on
any proposal, the expectation of the people which has its legitimacy
E 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
F 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
G 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, it should be a
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 171
[A. K. SIKRI, J.]

norm on each occasion. The difference must meet the concept of A
constitutional trust reposed in the authority and there has to be
objective assessment of the decision that is sent for communication
and further the rationale of difference of opinion should be
demonstrable and it should contain sound reason. There should
not be exposition of the phenomenon of an obstructionist but
B
reflection of the philosophy of affirmative constructionism and a
visionary. The constitutional amendment does not perceive a
situation of constant friction and difference which gradually builds
a structure of conflict. At the same time, the Council of Ministers
being headed by the Chief Minister should be guided by values
and prudence accepting the constitutional position that NCT of C
Delhi is not a State.”
In a concurring opinion on this aspect, Chandrachud, J. has also
given lucid commentary.
163. It becomes clear from the above that even when the executive
wing of Delhi Government takes a decision, the LG is also empowered D
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 E
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 F
decision and act according to the decision given thereon by the President.
It means that final say, in case of different between LG and Council of
Ministers, is that of the President. Such a scheme of things clearly
contemplates that the Council of Ministers is supposed to convey its
decisions to the LG to enable the LG to form his view thereupon. The G
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, we agree with the conclusion of the
High Court that views of LG should have been taken before issuing
circular dated August 4, 2015.
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172 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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.
B
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
C 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
D of Section 24(8) of Cr.P.C. which is to the following effect:
“24. Public Prosecutors. …
(8) The Central Government or the State Government may
appoint, for the purposes of any case or class of cases, a person
E who has been in practice as an advocate for not less than ten
years as a Special Public Prosecutor.”
165. As is clear from the above, power to appoint Special Public
Prosecutor is conferred both upon the Central Government and the State
Government. The question, therefore, arises is as to whether the
F expression ‘State Government’ would include GNCTD. As per the
appellant, once the Government of NCT of Delhi is found to be the
“State Government” under the Cr.P.C., necessarily the power to appoint
the Special Public Prosecutor will also lie with the Government of NCT
of Delhi. If the contention of the Union of India is to be accepted then
under the Cr.P.C. both the Central Government and State Government
G will be the Central Government alone, which will be a completely absurd
legal position, particularly in light of the fact that subsequent to the 69th
Amendment, various powers of the State Government under the Cr.P.C.,
including appointment of public prosecutors, have been exercised by the
elected government of NCT of Delhi. Referring to the impugned judgment,
on this issue, it is pointed out that the High Court has held that the
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 173
[A. K. SIKRI, J.]

definition of Section 3(60) of the General Clauses Act, 1897 will apply to A
interpret the term “State Government” and it would thus be the Central
Government, which would be the State Government. It is argued that
this approach is wrong as the issue of appointment of public prosecutor
relates to Criminal Procedure, i.e. Entry 2 of List II over which the
Delhi Assembly and Executive exercise power, the Lt. Governor must
B
act on the aid and advice of the Council of Ministers of the NCT of
Delhi. It is contended that this convoluted method of reasoning was not
necessary and the entire issue could be resolved if the Government of
NCT of Delhi was held to be a State Government of NCT of Delhi by
application of definition of State in Section 3(58) of General Clauses
Act, 1897 to interpret State Government in the Cr.P.C., instead of C
definition of Section 3(60) of the GC Act which is obviously repugnant
to the subject and context of Cr.P.C.
166. We may mention at this stage that writ petition was filed in
the High Court by the GNCTD challenging the order of the Special
Judge dated September 7, 2015 and order of LG dated September 4, D
2015 appointing Shri S.K. Gupta, 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 E
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 F
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 G
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 Government is aggrieved by that portion of the order of
the High Court where it is held that LG must appoint Special Public
Prosecutor on the aid and advice of Council of Ministers.
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174 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 168. Arguments on behalf of the Union of India is that by virtue of
Notification dated March 20, 1974, President under Article 239 had
empowered the Administrator to exercise all the powers conferred upon
State Government by the Cr.P.C. except that conferred by Section 8
and 477. Therefore, the power under Section 24 to appoint Prosecutor
or Special Public Prosecutor vests with the LG and not the Government
B
of NCT. So far as Entries 1 and 2, List III are concerned, it is argued
that undoubtedly Legislative Assembly of NCT has legislative competence
qua said entries but it is subservient to the legislative power of the Union.
It is contended that legislative competence of NCT Delhi cannot derogate
from or be repugnant to law of Parliament. And once Cr.P.C., 1973 has
C been made by the Parliament dealing exhaustively and comprehensively
with criminal procedure the executive power of GNCTD as well as the
legislative power would stand eroded and become subservient to the
central executive. Therefore, GNCTD can exercise executive power
only upon an express conferment of power by Cr.P.C. There is no such
conferment. It is the Central Government alone which would have
D
independent power to appoint Special Public Prosecutor. It is also argued
that assuming without admitting that under Section 24 both Central
Government are empowered to appoint Public Prosecutor/Special Public
Prosecutor under Section 24(1) and 24(8), the Central Government cannot
be prevented or restrained from making appointment, and wherever the
E Central Government has already made an appointment of a Public
Prosecutor with respect to a case or a class of clases, the UT Government
would not be competent to make a parallel appointment.
169. We find that in answering this question, the High Court has
entered into the following discussion:
F “300. As could be seen, Section 24(8) of Cr.P.C. empowers the
State Government for appointing a Special Public Prosecutor for
the purposes of any case or class of cases. Admittedly, NCT of
Delhi is a Union Territory and not a State. As per Sections 3(8),
3(58) and 3(60) of the General Clauses Act, 1897, the expression
G ‘State Government’ for the purpose of a Union Territory means
the 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
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 175
[A. K. SIKRI, J.]

concerned, the ‘State Government’ thus means the Lt. Governor A
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
B
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 C
opinion, the Lt. Governor under Section 24(8) of Cr.P.C. does not
act eo-nominee but exercises the executive functions of the State.
Hence, the said power has to be exercised on the aid and advice
of the Council of Ministers in terms of Clause (4) of Article 239AA
of the Constitution. D
302. For the above reasons, we are of the view that it is not open
to the Lt. Governor to appoint the Special Public Prosecutor on
his own without seeking aid and advice of the Council of Ministers.
303. In the circumstances, the impugned order dated 07.09.2015
passed by the Special Judge-07 in FIR No.21/2012 is hereby set E
aside and there shall be a direction to the Special Judge to pass an
appropriate order afresh in accordance with law.”
170. In the earlier part of the discussion, it has held:
(a) As per Sections 3(8), 3(58) and 3(60) of the GC Act, the F
expression ‘State Government’ for the purposes of a Union
Territory means the President and includes the Administrator in
terms of Article 239A of the Constitution.
(b) Insofar as NCT of Delhi is concerned, the ‘State Government’,
thus, means the Lieutenant Governor for the purposes of Section
G
24(8) of Cr.P.C.
171. Though, we have accepted the interpretation, as given by
the High Court in respect of the provisions of the GC Act mentioned
above while discussing the expression ‘State Government’ in the context
of COI Act, this position is clarified while dealing with the same expression
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176 SUPREME COURT REPORTS [2019] 3 S.C.R.

A occuring in Section 2(5) of the Electricity Act, 2003. We have made it
clear that it would depend upon language used in defining State
Government in a particular enactment. We have also pointed out the
difference in the definitions of Appropriate Government, under the COI
Act and Electricity Act. This becomes important in the light of decision
contained in the Constitution Bench judgment which clearly holds that
B
under various circumstances, the expression State Government would
be relatable to GNCTD, notwithstanding the fact that it continues to be
the Union Territory. The Constitution Bench judgment has also not
accepted the opinion of the High Court insofar as it treats State
Government as the Lieutenant Governor.
C 172. In any case, it may not be necessary to dwell much upon this
aspect. The High Court has also categorically held that the power to
appoint a Public Prosecutor is relatable to Entries 1 and 2 of List III. In
our opinion, the High Court has rightly held that in respect of these entries,
the Government of NCT of Delhi has legislative competence under Article
D 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.
E
173. All the appeals stand disposed of by answering the issues in
the manner aforesaid. Contempt Petition also stands disposed of.
ASHOK BHUSHAN, J.
1. I have gone through the erudite and elaborate judgment of my
F 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
G 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 parties having been elaborately noted in the opinion of
my esteemed Brother, I feel no necessity of burdening this judgment by
reproducing the submissions again. Justice Sikri has framed six issues
in paragraph Nos. 63 to 68 for consideration in these appeals, which are
H as follows:-
GOVT. OF NCT OF DELHI v. UNION OF INDIA 177
[ASHOK BHUSHAN, J.]

63)The first issue is whether the exclusion of “Services” relatable A
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?
64)The second issue is whether the exclusion of the jurisdiction B
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). C

65)The third issue is raised in Civil Appeal Nos. 2358, 2359 and
2360 of 2017. In all these three appeals, the common issue is
whether the GNCTD is an “Appropriate Government” under
the Commission of Enquiry Act, 1952?
D
66)The fourth issue, which is raised in Civil Appeal No. 2363 of
2017, is: Whether under Section 108 of the Electricity Act,
2003 and under Section 12 of the Delhi Electricity Reforms
Act, 2000, the power to issue directions with the State
Commission is with the Government of NCT of Delhi?
E
Similar issue is the subject matter of Civil Appeal No.
2361 of 2017, viz. whether the orders of the GNCTD nominating
Directors to Distribution Companies in Delhi under the Delhi
Electricity Reforms Act, 2000 read with Delhi Electricity
Reforms (Transfer Scheme) Rules, 2001, without obtaining the
concurrence of the Lieutenant Governor are valid? F
67)The fifth issue is common to Civil Appeal No. 2362 of 2017
filed by the GNCTD and Civil Appeal No. 2364 of 2017 filed
by Union of India, wherein the issue is whether the Revenue
Department of the GNCTD has the power to revise the
minimum rates of Agricultural Land (Circle Rates) under the G
provisions of Indian Stamp Act, 1899?
68)The sixth issue, which is the subject matter of Criminal Appeal
No. 277 of 2018, pertains to the appointment of Special Public
Prosecutors, viz., whether it is the Lieutenant Governor or the
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178 SUPREME COURT REPORTS [2019] 3 S.C.R.

A GNCTD which has the power to appoint the Special Public
Prosecutor under Section 24 of the Cr.P.C.?
2. I am in full agreement with the conclusions arrived at by my
esteemed Brother on Issue Nos. 2, 3, 4, 5 and 6. I do not intend to add
anything on the above issues. On Issue No.1, I do not entirely agree
B 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
C 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
D 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 to the following
effect:
E
“MINISTRY OF HOME AFFAIRS
NOTIFICATION
New Delhi, the 21st May, 2015
S.O. 1368(E).—Whereas article 239 of the Constitution provides
that every Union Territory shall be administered by the President
F acting, to such extent as he thinks fit, through an administrator to
be appointed by him with such designation as he may specify;
And whereas article 239AA inserted by ‘the Constitution (Sixty-
ninth Amendment) Act, 1991’ provides that the Union Territory of
Delhi shall be called the National Capital Territory of Delhi and
G the administrator thereof appointed under article 239 shall be
designated as the Lieutenant Governor;
And whereas sub-clause (a) of clause (3) of article 239AA states
that the Legislative Assembly shall have power to make laws for
the whole or any part of the National Capital Territory with respect
H to any of the matters enumerated in the State List or in the
GOVT. OF NCT OF DELHI v. UNION OF INDIA 179
[ASHOK BHUSHAN, J.]

Concurrent List in so far as any such matter is applicable to Union A
Territories except matters with respect to Entries 1, 2 and 18 of
the State List and Entries 64, 65 and 66 of that List in so far as
they relate to the said Entries 1, 2 and 18; and whereas Entry 1
relates to ‘Public Order’, Entry 2 relates to ‘Police’ and Entry 18
relates to ‘Land’.
B
And whereas sub-clause (a) of clause (3) of article 239AA also
qualifies the matters enumerated in the State List or in the
Concurrent List in so far as any such matter is applicable to Union
Territories. Under this provision, a reference may be made to
Entry 41 of the State List which deals with the State Public
Services, State Public Service Commission which do not exist in C
the National Capital Territory of Delhi.
Further, the Union Territories Cadre consisting of Indian
Administrative Service and Indian Police Service personnel is
common to Union Territories of Delhi, Chandigarh, Andaman and
Nicobar Islands, Lakshadweep, Daman and Diu, Dadra and Nagar D
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 E
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. F

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 G
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 H
180 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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 -
B “(i) subject to his control and further orders, the Lieutenant
Governor of the National Capital Territory of Delhi, shall in
respect of matters connected with ‘Public Order’, ‘Police’,
‘Land’ and ‘Services’ as stated hereinabove, exercise the
powers and discharge the functions of the Central Government,
C to the extent delegated to him from time to time by the President.
Provided that the Lieutenant Governor of the National Capital
Territory of Delhi may, in his discretion, obtain the views of the
Chief Minister of the National Capital Territory of Delhi in
regard to the matter of ‘Services’ wherever he deems it
D appropriate.
2. In the Notification number F. 1/21/92-Home (P) Estt. 1750
dated 8th November, 1993, as amended vide notification dated
23rd July, 2014 bearing No. 14036/4/2014-Delhi-I (Pt. File), for
paragraph 2 the following paragraph shall be substituted, namely:—
E “2. This notification shall only apply to officials and employees
of the National Capital Territory of Delhi subject to the
provisions contained in the article 239AA of the Constitution.”
after paragraph 2 the following paragraph shall be inserted,
namely:—
F
“3. The Anti-Corruption Branch Police Station shall not take
any cognizance of offences against Officers, employees and
functionaries of the Central Government”.
3. This Notification supersedes earlier Notification number
S.O. 853(E) [F. No. U-11030/2/98- UTL] dated 24th September,
G 1998 except as respects things done or omitted to be done before
such supersession.
[F. No. 14036/04/2014-Delhi-I (Part
File)]
RAKESH SINGH, Jt. Secy.”
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 181
[ASHOK BHUSHAN, J.]

5. The Government of India, Ministry of Home Affairs issued A
above notification on the premise that Entry 41 of List II which deals
with “State public services; State Public Service Commission” is not
available to the Legislative Assembly of the National Capital Territory
of Delhi which has been expressly stated so in the notification. The
Government of NCT of Delhi (hereinafter referred to as “GNCTD”)
B
aggrieved by the notification has filed Writ Petition (C)No.5888 of 2015
in Delhi High Court. The Delhi High Court vide its judgment dated
04.08.2016 has decided Writ Petition (C)No.5888 of 2015 along with
other writ petitions. The conclusion of the judgment dated 04.08.2016 of
the Delhi High Court are summarised in paragraph No.302. The Delhi
High Court in paragraph No.302(v) laid down following: C
“302(v) The matters connected with “Services” fall outside the
purview of the Legislative Assembly 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 D
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. E
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 F
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 Ashok Bhushan). After the G
judgment of the Constitution Bench, the matter has been placed before
this Bench for deciding all these appeals.
7. Before this Bench elaborate submissions have been made by
several eminent counsel. The submissions made before us have been
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182 SUPREME COURT REPORTS [2019] 3 S.C.R.

A elaborately noticed by Justice A.K. Sikri which need no repetition in this
order. The Constitution Bench having answered the reference vide its
judgment dated 04.07.2018, we are required to decide these appeals as
per the opinion of the Constitution Bench. Article 145 clause (3) of the
Constitution of India provides as follows:
B “Article 145(3) The minimum number of Judges who are to sit for
the purpose of deciding any case involving a substantial question
of law as to the interpretation of this Constitution or for the purpose
of hearing any reference under Article 143 shall be five:
Provided that, where the Court hearing an appeal under any of
C the provisions of this chapter other than Article 132 consists of
less than five Judges and in the course of the hearing of the appeal
the Court is satisfied that the appeal involves a substantial question
of law as to the interpretation of this Constitution the determination
of which is necessary for the disposal of the appeal, such Court
shall refer the question for opinion to a Court constituted as required
D by this clause for the purpose of deciding any case involving such
a question and shall on receipt of the opinion dispose of the appeal
in conformity with such opinion.”
8. The expression “shall on receipt of the opinion dispose of the
appeal in conformity with such opinion” occurring in proviso to Article
E 145 clause (3) obliges this Bench to dispose of the appeal in conformity
with such opinion. We, thus, need to find as to what is the opinion of the
Constitution Bench in accordance with which the appeal is to be disposed
of. On first question as noted above, what is opinion of the Constitution
Bench has to be ascertained to apply the same in deciding the appeal.
F 9. Shri Rakesh Dwivedi, learned senior counsel and Shri Maninder
Singh, learned Additional Solicitor General(as he then was) submitted
that the majority judgment of the Constitution Bench authored by Justice
Dipak Misra, C.J. (as he then was) has neither considered the submission
that Entry 41 of List II of the VIIth Schedule of the Constitution is not
G available to Legislative 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
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 183
[ASHOK BHUSHAN, J.]

submitted before us that emphasis before the Constitution Bench was A
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
B
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 C
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
opinions have noted that the controversy in individual appeals need not
to be dwelled upon by the Constitution Bench as the Constitution Bench
is to answer only the constitutional issues. In the opinion of Justice Dipak D
Misra, C.J. (as he then was) following was stated in paragraph 13:
“13. Having prefaced thus, we shall now proceed to state the
controversy in brief since in this batch of appeals which has been
referred to the Constitution Bench, we are required to advert to
the issue that essentially pertains to the powers conferred on the E
Legislative Assembly of the National Capital Territory of Delhi
and the executive power exercised by the elected Government of
NCT of Delhi. The facts involved and the controversy raised in
each individual appeal need not be dwelled upon, for we only
intend to answer the constitutional issue.” F
12. In paragraph 486 of the judgment (in my opinion) following
was stated:
“486. These appeals, thus, have been placed before this
Constitution Bench. At the outset, it was agreed between the
learned counsel for the parties that this Constitution Bench may G
only answer the constitutional questions and the individual appeals
thereafter will be decided by appropriate regular Benches.”
13. The submissions which are being pressed before us by Shri
Rakesh Dwivedi as well as Shri Maninder Singh were also pressed before
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184 SUPREME COURT REPORTS [2019] 3 S.C.R.

A the Constitution Bench, the specific submission was that the power of
Legislative Assembly of Delhi on subject matter provided in List II and
III of Seventh Schedule is limited by very same Article when it implies
“in so far as any such matter is applicable to Union Territories”. It is
useful to notice that in paragraph 39 of the judgment of Justice Dipak
Misra, C.J. (as he then was) following has been noticed:
B
“39. The respondents also contend that although Article 239-AA
confers on the Legislative Assembly of Delhi the power to legislate
with respect to subject-matters provided in List II and List III of
the Seventh Schedule, yet the said power is limited by the very
same Article when it employs the phrase “insofar as any such
C matter is applicable to Union Territories…” and also by specifically
excluding from the legislative power of the Assembly certain entries
as delineated in Article 239-AA(3)(a). This restriction, as per the
respondents, limits the power of the Legislative Assembly to
legislate and this restriction has to be understood in the context of
D 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
E 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.
F 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”.
G
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 constitutional scheme and the status
of the Lieutenant Governor of Delhi is not that of a Governor of a
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 185
[ASHOK BHUSHAN, J.]

State, rather he remains an Administrator, in a limited sense, A
working with the designation of Lieutenant Governor.”
15. Discussion being confined only to Legislative power conferred
on the Delhi Legislative Assembly it is useful to notice the opinion
expressed by the Constitution Bench in the above regard. In paragraph
Nos. 217 and 219 following has been laid down: B
“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. C
219. Thus, it is evident from clause (3) of Article 239-AA that
Parliament has the power to make laws for NCT of Delhi on any
of the matters enumerated in the State List and the Concurrent
List and at the same time, the Legislative Assembly of Delhi also
has the legislative power with respect to matters enumerated in D
the State List and the Concurrent List except matters with respect
to entries which have been explicitly excluded from Article 239-
AA(3)(a).”
16. In the above paragraphs Constitution Bench held that the power
of the Legislative Assembly to make laws of NCT of Delhi is with respect E
to matters enumerated in State List and the Concurrent List except in so
far as matters with respect to and which relate to entries 1,2 and 18 of
the State List. What is noticed in paragraph No. 217 is what is stated in
general terms in Article 239AA(3)(a) of the Constitution. The Constitution
Bench has not bestowed its consideration on the purpose and intent of
expression “with respect to any of the matters enumerated in the State F
List or in the Concurrent List in so far as any such matter is applicable to
Union Territory of Delhi”. The reason is not far to seek. Individual issues
which had arisen in different appeals were not touched by the Constitution
Bench leaving it open to be decided by the regular Bench after
constitutional questions are answered. Whether the “services” are within G
legislative competence of Delhi Legislative Assembly is one of the issues
which has directly arisen in C.A.No.2357 of 2017. Thus, there is no
opinion of Constitution Bench as to whether Entry 41 of List II is available
to Legislative Assembly of Delhi or not except a general statement that
Legislative Assembly of Delhi shall have power to make laws with respect
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186 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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:
B “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
C 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
D extracted above has noticed the submissions of the counsel for the
respondents that words “insofar as any such matter is applicable to Union
Territories ...” in Article 239AA(3)(a) restrict the Legislative power of
the Legislative Assembly of Delhi to only those entries which are only
applicable to Union Territories and not all. The elaborate discussion on
its answer is not found in the majority opinion expressed by Justice Dipak
E Misra, C.J. (as he then was). The submission having been made before
the Constitution Bench which submission was considered in other two
opinions expressed by Dr. Justice D.Y. Chandrachud and myself, it is
useful to notice as to what has been said in other two opinions in the
Constitution Bench.
F 19. Dr. Justice D.Y. Chandrachud in his opinion has dealt with the
submission under the separate heading as indicated at Serial No.K(v) in
the Index in the beginning of the judgment which is to the following
effect:
“K(v) “Insofar as any such matter is applicable to Union
G Territories”
20. In pages 736 and 737 of the judgment of Dr.Justice D.Y.
Chandrachud, the said submission has been considered in paragraph
Nos. 461, 462 and 463 and following has been laid down:
“461. Article 239-AA(3)(a) permits the Legislative Assembly of
H the NCT to legislate on matters in the State List, except for Entries
GOVT. OF NCT OF DELHI v. UNION OF INDIA 187
[ASHOK BHUSHAN, J.]

1, 2 and 18 (and Entries 64, 65 and 66 insofar as they relate to the A
earlier entries) and on the Concurrent List, “insofar as any such
matter is applicable to Union Territories”. In forming an
understanding of these words of Article 239-AA(3)(a), it has to
be noticed that since the decision in Kanniyan right through to
the nine-Judge Bench decision in NDMC, it has been held that the
B
expression “State” in Article 246 does not include a Union
Territory. The expression “insofar as any such matter is applicable
to Union Territories” cannot be construed to mean that the
Legislative Assembly of NCT would have no power to legislate
on any subject in the State or Concurrent Lists, merely by the use
of the expression “State” in that particular entry. This is not a C
correct reading of the above words of Article 239-AA(3)(a). As
we see below, that is not how Parliament has construed them as
well.
462. Section 7(5) of the GNCTD Act provides that salaries of
the Speaker and Deputy Speaker of the Legislative Assembly D
may be fixed by the Legislative Assembly by law. Section 19
provides that the Members of the Legislative Assembly shall
receive salaries and allowances 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 E
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 F
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) G
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.
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188 SUPREME COURT REPORTS [2019] 3 S.C.R.

A Similarly, it can also be stated that the definition of the expression
State in Section 3(58) of the General Clauses Act (which includes
a Union Territory) will not necessarily govern all references to
“State” in the Constitution. If there is something which is repugnant
in the subject or context, the inclusive definition in Section 3(58)
will not apply. This is made clear in the precedent emanating from
B
this Court. In certain contexts, it has been held that the expression
“State” will not include Union Territories while in other contexts
the definition in Section 3(58) has been applied. Hence, the
expression “insofar as any such matter is applicable to Union
Territories” is not one of exclusion nor can it be considered to be
C so irrespective of subject or context.”
21. Dr. Justice D.Y. Chandrachud while considering the expression
“in so far as any such matter is applicable to Union Territories” as
occurring in Article 239AA(3) has held that the ability of the Legislative
Assembly is circumscribed by the above expression. In Paragraph No.
D 316 of the Constitution Bench judgment, he has observed following:-
“316. Clause (3) of Article 239-AA defines the legislative powers
of the Legislative Assembly for the NCT. Sub-clause (a)
empowers the Legislative Assembly for the NCT to enact law
with respect to any of the matters contained in the State or
E Concurrent Lists of the Seventh Schedule to the Constitution. The
ability of the Legislative Assembly is circumscribed “insofar as
any such matter is applicable to Union Territories”. The Legislative
Assembly can hence enact legislation in regard to the entries in
the State and Concurrent Lists to the extent to which they apply
to a Union Territory. Of equal significance is the exception which
F has been carved out: Entries 1, 2 and 18 of the State List (and
Entries 64, 65 and 66 insofar as they relate to Entries 1, 2 and 18)
lie outside the legislative powers of the Legislative Assembly of
NCT……………………………….”
22. Dr. Justice D.Y. Chandrachud, thus, held that expression
G “State” is by itself not conclusive of whether a particular provision of
the Constitution would apply to Union Territories. His Lordship opined
that the expression “insofar as any such matter is applicable to Union
Territories” is not one of exclusion nor can it be considered to be so
irrespective of subject or context.
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 189
[ASHOK BHUSHAN, J.]

23. I had also dealt with the above submission in paragraph Nos. A
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 B
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 C
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 D
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 List or in the Concurrent List except the
excluded entries. One of the issues is that power to make laws in E
State List or in Concurrent List is hedged by phrase “insofar as
any such matter is applicable to Union Territories”.
552. A look at the entries in List II and List III indicates that there
is no mention of Union Territory. A perusal of Lists II and III
indicates that although in various entries there is specific mention F
of word “State” but there is no express reference of “Union
Territory” in any of the entries. For example, in List II Entries 12,
26, 37, 38, 39, 40, 41, 42 and 43, there is specific mention of word
“State”. Similarly, in List III Entries 3, 4 and 43 there is mention
of word “State”. The above phrase “insofar as any such matter is
applicable to Union Territory” is inconsequential. The reasons are G
twofold. On the commencement of the Constitution, there was no
concept of Union Territories and there were only Part A, B, C
and D States. After Seventh Constitutional Amendment, where
First Schedule as well as Article 2 of the Constitution were
amended which included mention of Union Territory both in Article H
190 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 1 as well as in First Schedule. Thus, the above phrase was used
to facilitate the automatic conferment of powers to make laws
for Delhi on all matters including those relatable to the State List
and Concurrent List except where an entry indicates that its
applicability to the Union Territory is excluded by implication or
any express constitutional provision.”
B
24. In the above paragraphs the opinion is expressed that all
matters including those relatable to the State List and Concurrent List
are available to Legislative Assembly of Delhi except where an entry
indicates that its applicability to the Union Territory is excluded by
implication or by any express constitutional provision. The conclusion is,
C thus, that all entries of List II and List III are available to Legislative
Assembly for exercising Legislative power except when an entry is
excluded by implication or by any express provision.
25. The majority opinion delivered by Justice Dipak Misra, C.J.
(as he then was) having not dealt with the expression “insofar as any
D such matter is applicable to Union Territories”, it is, thus, clear that no
opinion has been expressed in the majority opinion of the Constitution
Bench, hence the said issue is required to be elaborately answered for
deciding C.A.No.2357 of 2017.
26. As noted above, Article 239AA has been inserted by
E 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,
F 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-
G
(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,
H as may be specified in the law.
GOVT. OF NCT OF DELHI v. UNION OF INDIA 191
[ASHOK BHUSHAN, J.]

(2) Any such law as is referred to in clause (1) shall not be deemed A
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 empowered the Parliament by law to create a
body to function as a Legislature for the Union Territory. Such Union B
Territory constituted under Act, 1963 had Legislative power as provided
by the Parliament itself under Section 18 of the Act, 1963. Section 18 of
the Act, 1963 is as follows:
“18. Extent of legislative power.(1) Subject to the provisions
of this Act, the Legislative Assembly of the Union territory may C
make laws for the whole or any part of the Union territory with
respect to any of the matters enumerated in the State List or the
Concurrent List in the Seventh Schedule to the Constitution in so
far as any such matter is applicable in relation to Union territories.
(2) Nothing in sub-section (1) shall derogate from the powers D
conferred on Parliament by the Constitution to make laws with
respect to any matter for the Union territory or any part thereof.”
28. Thus, the expression “insofar as any such matter is applicable
in relation to Union Territories” is a known concept which was occurring
in Section 18 of the Government of Union Territories Act, 1963 also. E
29. For understanding the reasons and objects for circumscribing
the Legislative powers of the Delhi Legislative Assembly by qualifying
with the expression “insofar as any such matter is applicable in relation
to Union Territories”, we need to look into the Statement of Objects and
Reasons of the Constitution 69th (Amendment) Act and other relevant F
materials throwing light on the object and purpose of 69th Constitutional
amendment.
30. It is to be noted that for Reorganisation of the administrative
set up of Union Territory of Delhi, the Government of India has appointed
a Committee, namely, Balakrishnan Committee, which had submitted its
G
report on 14.12.1989 to the Home Ministry. The Report of the
Balakrishnan Committee was the basis for enacting 69th Constitution
Amendment. In the Statement of Objects and Reasons of the 69th
Constitution Amendment, the Report of Balakrishnan Committee has
been specifically referred to and relied on. It is useful to notice the
H
192 SUPREME COURT REPORTS [2019] 3 S.C.R.

A Statement of Objects and Reasons of Constitution 69th Amendment,
which are as follows:-
“Statement of Objects and Reasons
The question of reorganisation of the administrative set-up in the
Union Territory of Delhi has been under the consideration of the
B 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
C 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
D 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
E 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
F NCT of Delhi vs. Union of India (supra) speaking through Justice
Dipak Misra, C.J. (as he then was) has also referred to and relied on the
Balakrishnan’s Committee Report. In Paragraph No. 16 of the judgment,
several paragraphs of the Balakrishnan Committee Report have been
extracted by the Constitution Bench. The Constitution Bench has further
G held that Balakrishnan Committee’s Report serve as an enacting history
and corpus of public knowledge relative to the introduction of Articles
239-AA and 239-AB and would be handy external aids for construing
Article 239-AA and unearthing the real intention of Parliament while
exercising its constituent power. In Paragraph No. 206 of the judgment,
following has been observed:-
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 193
[ASHOK BHUSHAN, J.]

“206. It is perceptible that the constitutional amendment conceives A
of conferring special status on Delhi. This has to be kept in view
while interpreting Article 239-AA. Both the Statement of Objects
and Reasons and the Balakrishnan Committee Report, the relevant
extracts of which we have already reproduced in the earlier part
of this judgment, serve as an enacting history and corpus of public
B
knowledge relative to the introduction of Articles 239-AA and
239-AB and would be handy external aids for construing Article
239-AA and unearthing the real intention of Parliament while
exercising its constituent power.”
32. Balakrishnan’s Committee Report in Para No. 6.7.4 has noted
the limitation on the Legislative power of the Delhi Legislative Assembly C
because of the difference between the Constitutional Status of Union
Territory and that of the State. Para No. 6.7.4 is to the following effect:-
“6.7.4 As regards the Legislative Assembly to be created for
Delhi. It should have full legislative power in relation to matters
assigned to it. Subject to the specific exclusion of certain subjects D
set out in paragraphs 6.7.8 and 6.7.12 below, such powers should
cover matters in the State List and the Concurrent List of the
Constitution in so far as such matters are applicable in relation to
Union territories. This last limitation is necessary because of the
difference between the constitutional status of a Union territory E
and that of a State. The exercise of such legislative powers should,
of course, be subject to the provisions of the Constitution and the
relevant laws of Parliament.”
33. Balakrishnan Committee Report while elaborating the
expression “insofar as any such matters are applicable in relation to F
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 G
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
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194 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 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
B 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 mentions “State public services:
State ‘Public Services Commission”. Obviously, this Entry is not
C applicable to Union territories because it mentions only “State”
and not “Union territories”. This view is reinforced by the fact
that this Constitution divides public services in India into two
categories, namely, services in connection with the affairs of the
Union and services in connection with the affairs of the State as
is clear from the various provisions in Part XIV of the Constitution.
D There is no third category of services covering the services of the
Union territories. The obvious reason is that the administration of
the Union territory is the constitutional responsibility of the Union
under article 239 and as such comes under “affairs of the Union”.
Consequently, the public services for the administration of any
E Union territory should form part of the public services in connection
with the affairs of the Union.
8.1.3 It is not, therefore, constitutionally possible to bring the
subject matter of the services in the Union territory within the
scope of the Legislative Assembly or the Council of Ministers of
F the proposed Delhi Administration. On the same reasoning it is
not possible to provide for a separate Public Service Commission
for a Union territory like Delhi because State Public Service
Commission in Entry 41 aforesaid means only the body set up for
the States.”

G 35. Balakrishnan Committee Report further opined that services
in connection with the administration of the Union Territory of Delhi will
be part of the services of the Union even after the setting up of a
Legislative Assembly with a Council of Ministers. Following was stated
in Paragraph No. 9.3.4 on the heading “SERVICES”:-

H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 195
[ASHOK BHUSHAN, J.]

“SERVICES A
9.3.4 By virtue of the provisions in the Constitution, services in
connection with the administration of the Union territory of Delhi
will be part of the services of the Union even after the setting up
of a Legislative Assembly with a Council of Ministers. This
constitutional position is unexceptionable and should not be B
disturbed. There should, however, be adequate delegation of
powers to the Lt. Governor in respect of specified categories of
services or posts. In performing his functions under such delegated
powers the Lt. Governor will have to act in his discretion but
there should be a convention of consultation, whenever possible,
with the Chief Minister.” C

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 D
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 E
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 F
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 G
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. A Constitution Bench of this Court
had occasion to consider various aspects of the services in Union Territory H
196 SUPREME COURT REPORTS [2019] 3 S.C.R.

A of Delhi in Bir Singh Vs. Delhi Jal Board and Others, (2018) 10
SCC 312. The above Constitution Bench judgment was delivered on
30.08.2018, i.e. subsequent to Constitution Bench judgment in Govt. of
NCT of Delhi vs. Union of India (supra). The Constitution Bench of
this Court speaking through Justice Ranjan Gogoi (as he then was) has
noticed details of all Central Civil Services, Union Territories Services in
B
reference to NCT of Delhi, although with reference to question of
applicability of reservation in services. Services in reference to NCT of
Delhi has been noticed in paragraph Nos. 64 to 66 under the heading
“National Capital Territory of Delhi”, which is to the following effect:-
“National Capital Territory of Delhi
C
64. In case of National Capital Territory of Delhi, especially, to
make the picture even clearer, a reference may be made to “Delhi
Administration Subordinate Service Rules, 1967”. Rule 3 of the
aforesaid Rules is to the following effect:

D “3. Constitution of service and its classification.—(1) On and
from the date of commencement of these Rules, there shall be
constituted one Central Civil Service, known as the
Subordinate Service of the Delhi Administration.
(2) The Service shall have four Grades, namely—
E Grade I
Grade II
Grade III
Grade IV
F (3) The posts in Grade I shall be Central Civil posts, Class II
Group “B” (Gazetted) and those in Grades II, III and IV shall
be Central Civil posts Group “C” (Non-Gazetted).
(4) Members of the service shall, in the normal course be eligible
for appointment to various Grades of the service to which they
G belong and not to the other service.”
(emphasis supplied)
65. Subordinate services in the National Capital Territory of Delhi
are, therefore, clearly Central Civil Services. The affidavit of the
Union of India also points out this feature by stating that,
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 197
[ASHOK BHUSHAN, J.]

“The posts in CCS Group C are in the subordinate services. The A
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 B
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. C
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). D
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 clearly Central Civil
Services. What has been held by the Constitution Bench also reinforces E
that there are no State Public Services in the NCT, Delhi. Learned
counsel appearing for the appellant has placed much reliance on the
Delhi Fire Services Act, 2007 to buttress his submission that by the
aforesaid Act, State Services namely Delhi Fire Services has been
created, which clearly means that Entry 41 of List II is applicable to F
Delhi Legislative Assembly. The Delhi Fire Services Act, 2007 has been
passed to provide for the maintenance of a fire service and to make
more effective provisions for the fire prevention and fire safety measures
in certain buildings and premises in the National Capital Territory of
Delhi and the matter connected therewith.
G
39. We may first notice that the word “services” used in the Act
has been used in a manner of providing services for fire prevention and
fire safety measures. The word “services” has not been used in a sense
of constitution of a service. It is to be noted that fire service is a municipal
function performed by local authority. Delhi Municipal Council Act,
H
198 SUPREME COURT REPORTS [2019] 3 S.C.R.

A 1957 contains various provisions dealing with prevention of fire etc.
Further fire services is a municipal function falling within the domain of
municipalities, which has been recognised in the Constitution of India.
Article 243(W) of the Constitution deals with functions of the
municipalities in relation to matters listed in the 12th Schedule. Entry 7
of the 12th Schedule provides for “Fire Services” as one of the functions
B
of the municipalities. The nature of the enactment and the provisions
clearly indicate that Delhi Fire Services Act falls under Entry 5 of List II
and not under Entry 41 of List II.
40. The distribution of Legislative powers of State and the
Parliament is provided under Articles 245 and 246 of the Constitution.
C Article 246 which provides for subject-matter of laws made by Parliament
and by the Legislatures of States provides as follows:
“Article 246. Subject matter of laws made by Parliament
and by the Legislatures of States.-(1) Notwithstanding anything
in clauses (2) and (3), Parliament has exclusive power to make
D laws with respect to any of the matters enumerated in List I in the
Seventh Schedule (in this Constitution referred to as the “Union
List”).
(2) Notwithstanding anything in clause (3), Parliament and, subject
to clause (1), the Legislature of any State also, have power to
E 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
F 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
G 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
H
GOVT. OF NCT OF DELHI v. UNION OF INDIA 199
[ASHOK BHUSHAN, J.]

List II in the Seventh Schedule”. The expression used in Article A
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
B
aware about the functioning of the Union Territories and extent and
controls of powers to be given to the Union Territories by constitutional
amendment.
42. I 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 C
“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 D
exercise those Executive powers, which have been delegated to it. Issue
No. 1 is answered accordingly.
43. In view of my above answer to Issue No.1, Civil Appeal No.
2357 of 2017 – Govt. Of NCT of Delhi Vs. Union of India stands disposed
of upholding the judgment of the Delhi High Court dismissing the Writ E
Petition (C) No. 5888 of 2015. The other appeals are disposed of as per
order proposed by my esteemed Brother Justice A.K. Sikri. Contempt
Petition (C) No. 175 of 2016 is closed. The parties shall bear their own
costs.

F
Devika Gujral Appeals disposed of.

G

H