Delhi continues to remain a Union Territory under the Constitution with the Lieutenant Governor as its administrative head, Delhi High Court ruled on Thursday, dealing a body blow to the Arvind Kejriwal government, which has been on warpath with the Centre over powers.
The special constitutional provision Article 239AA dealing with Delhi does not "dilute" the effect of Article 239 which relates to the union territory and hence, concurrence of the LG in administrative issues is "mandatory", the bench headed by Chief Justice G Rohini said.
The bench, also comprising Justice Jayant Nath, did not accept AAP government's contention that the LG is bound to act only on the aid and advice of Chief Minister and his Council of Ministers with regard to making laws by the Legislative Assembly under the Article 239AA and termed it as "without substance".
"On a reading of Article 239 and Article 239AA of the Constitution together with the provisions of the Government of National Capital Territory of Delhi Act, 1991 and Transaction of Business of the Government of NCT of Delhi Rules, 1993, it becomes manifest that Delhi continues to be a Union Territory even after the Constitution (69th Amendment) Act, 1991 inserting Article 239AA making special provisions with respect to Delhi," the bench said in its 194-page verdict.
Giving primacy to the concurrence of LG in transaction of Legislative business, the bench said, "It is mandatory under the constitutional scheme to communicate the decision of the Council of Ministers to the LG even in relation to the matters in respect of which power to make laws has been conferred on the Legislative Assembly of NCT of Delhi under clause (3)(a) of Article 239AA of the Constitution and an order thereon can be issued only where the LG does not take a different view".
The court held that the AAP government's order for constituting a Commission of Inquiry to go into the alleged irregularities in the functioning of Delhi and District Cricket Association (DDCA) and CNG fitness scam was "illegal" as the orders were issued "without seeking the views/ concurrence" of the LG.
The court, which rejected almost all the contentions of Delhi government, however, agreed with its submission that the LG will have to act on its aid and advice in appointment of special public prosecutors.
The persistent claim of Delhi government that Centre has been creating roadblocks in functioning of its Anti-Corruption Branch by coming out with a notification which excludes Central Government employees did not find favour with the court.
It held that service matters fall outside the purview of legislative assembly and Centre's May 21, 2015 notification barring the ACB from proceeding against central government employees was "neither illegal nor unconstitutional".
"The direction in the impugned notification as reiterated in the notification dated May 21, 2015 that ACB police station shall not take any cognizance of offences against officers, employees and functionaries of the central government is in
accordance with the constitutional scheme and warrants no interference," the bench said.
The verdict came on a batch of petitions, including those filed by the BJP-led Centre and Delhi government, on the issues relating to exercise of legislative powers and executive control in the administration of National Capital Territory of Delhi.
The court did not approve of the AAP government's decision to appoint its nominees as directors on the boards of private discoms on the ground that there was "huge" corruption in their functioning.
"The appointment of nominee directors of Government of NCT of Delhi on Board of BSES Rajdhani Power Ltd, BSES Yamuna Power Ltd and Tata Power Delhi Distribution Ltd by the Delhi Power Company Ltd on the basis of the recommendations of the chief minister of Delhi without communicating the decision of chief minister to the LG for his views is illegal," it said.
It also termed as "illegal and unconstitutional" the policy decision of the city government empowering the Delhi Electricity Regulatory Commission to impose fine on discoms in the event of disruption of power supply on the ground that the LG was not on board.
The AAP government's decision to revise stamp duty rates for sale and transfer of agriculture land was also struck down.
"The notification dated August 4, 2015 issued by the Government of NCT of Delhi, Revenue Department revising the minimum rates for the purpose of chargeability of stamp duty on the instruments related to sale/transfer of agriculture land is illegal since the said notification was issued without seeking the views/concurrence of the LG as required under the constitutional scheme," it said.
The Delhi government had earlier moved the Supreme Court for a direction to restrain the high court from delivering the verdict as it lacked jurisdiction, but the apex court refused. It was contended that a dispute between a state and the Centre exclusively falls within the domain of the Supreme court.
The high court, in its judgement, rejected the contention of the Delhi government saying, "We are unable to agree with the contention of the applicant/GNCTD that the proceedings in the present batch of petitions shall remain stayed till Original Suit filed by the applicant under Article 131 of Constitution is adjudicated by the Supreme Court".
The court said, "On a conjoint reading of Article 239AA and the above noticed provisions of Government of NCT of Delhi Act, 1991 and the Rules made thereunder, it becomes manifest that Delhi continues to be a Union Territory".
The court, in its verdict, dealt with and compared the constitutional schemes dealing with powers of the Governor and the LG of Delhi and held that the latter has wider discretion in his functioning.
"However, the discretion of the Governor of a State under Article 163(1) is confined only to the Constitutional provisions, whereas under Article 239AA(4), the LG may act in his discretion with regard to all the matters in respect of which he is required to act in his discretion 'by or under any law'," the bench said.
"Further, the proviso to Article 239AA(4) enables the LG in case of difference of opinion to refer the matter to the President for decision and act according to the decision given thereon by the President. Pending such decision of the President, the LG is empowered to take such action or to give such direction if in his opinion the matter is so urgent that it is necessary for him to take immediate action," it said.
It also referred to the recent Supreme Court's decision in the Arunachal Pradesh case to make a distinction between the constitutional powers of a Governor and the LG.
"It is clear from the analysis made by the Constitution Bench in Nabam Rebia and Bamang Felix vs Deputy Speaker that even though Governor is authorized to exercise some functions under different provisions of the Constitution, the same are required to be exercised only on the basis of the aid and advice tendered by him under Article 163 unless the Governor has been expressly authorized by or under a Constitutional provision to discharge the concerned function in his own discretion," it noted.
The bench said, "In view of this fundamental difference in the powers conferred upon a Governor of State and the LG of NCT of Delhi, it is not possible to hold that the LG is bound to act only on the aid and advice of the Council of Ministers."
Referring to the Delhi's transaction of business rules, the bench said it is always open to the LG to "differ with the decision of the Council of Ministers, in which event, he has to follow the procedure as prescribed" under the rules.
Holding that Delhi being the national Capital has "special features", the court said the objective to bring Article 239AA by 69th amendment in the Constitution was "to preserve the ultimate responsibility of administration on the President".
It also rejected the contentions of AAP government that the dispute be referred to a larger bench.
The bench agreed to the Centre's submissions that the LG, acting through the Central Government, "alone is competent to appoint a Commission of Inquiry in relation to administration of Delhi which continues to be a Union Territory even after insertion of Article 239AA to the Constitution."
The bench said that the courts usually do not exercise the power of judicial review in policy matters.
"It is no doubt true that normally the courts would decline to exercise the power of judicial review in relation to policy matters. However, having regard to the fact that the policy directions impugned in the case on hand are ex facie illegal and unconstitutional, the same are liable to be set aside," it said.
"In the light of the clear and unambiguous definitions of the Central Government and State Government under Section 3(8) and Section 3(60) respectively of the General Clauses Act, 1897, we are of the view that the expression 'appropriate Government' in respect of Union Territories shall be the Central Government only," the bench said.
It noted that since there is no separate service cadre of any union territory, the services of all union territories including NCT of Delhi, were services of the Union.
Photograph: PTI Photo