# GOVT. OF NCT OF DELHI v. UNION OF INDIA

- **Citation:** [2019] 3 S.C.R. 28
- **Court:** Supreme Court of India
- **Decided:** 2019-02-14
- **Case number:** Civil Appeal No. 2357 of 2017
- **Bench:** A. K. Sikri, Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/govt-of-nct-of-delhi-v-union-of-india-33581
- **Pages:** 172

## Headnote

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,
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
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
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
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
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
[2019] 3 S.C.R. 28
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Minister as Head on the other hand, for the smooth functioning of
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
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
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
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
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
"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 powe

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SUPREME COURT REPORTS
[2019] 3 S.C.R.
GOVT. OF NCT OF DELHI
v.
UNION OF INDIA
(Civil Appeal No. 2357 of 2017)
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,
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
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
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
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
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
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Minister as Head on the other hand, for the smooth functioning of
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
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
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
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
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
"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 -
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
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of the GNCTD alone is legal - Held: ACB is not empowered to
investigate into the offences of Central Government employees under
the Prevention of Corruption Act - Such investigation is carried
out by CBI - Therefore, it obviates the duality and conflict of
jurisdiction as well - As per Notifications dated 23.7.2014 and
21.5.2015, the jurisdiction of ACB is limited to the employees of
GNCTD only - Code of Criminal Procedure, 1973 - s.2(s) -
Prevention of Corruption Act, 1947.
Constitution of India - Seventh Schedule, List II, Entry 2 -
Term 'police' occurring therein - Meaning of - Held: It is a settled
principle that legislative entries are to be interpreted in a broad
and liberal manner consistent with imputing to them the widest
amplitude and as including all ancillary and subsidiary matters -
The scope of the term 'Police' as occurring in Entry 2 of List II
cannot, therefore, be artificially restricted or limited to only
constitution of the Police force, but would take within its fold the
legislative (and, therefore, executive) power to exercise supervision
and control over the functioning of the Police so constituted,
including by way of issuance of executive directions delineating
the powers, functions and jurisdiction of different wings/sections
of the Police - Entry 2 List II would also include the determination
as to the nature and scope of investigations to be done by the Police
- Therefore, while establishing the ACB as a Police Station, it would
be permissible to circumscribe and limit the investigation sphere of
the ACB.
Constitution of India - Seventh Schedule, List II, Entry 1 -
Notification dated 23.7.2014 and 21.5.2015 - By these Notifications,
the jurisdiction of ACB was limited to the employees of GNCTD -
Validity of these notifications challenged on the ground that s.2(s)
empowers the State Government to notify a police station and the
impugned notification was issued by the Central Government and
post 69th Amendment, the Central Government is not the State
Government for exercising power under s.2(s) - Held: No doubt,
s.2(s) of the Cr.P.C. contemplates establishment of the police station
by the State Government - However, the Cr.P.C. also lays down the
procedure for making arrest, conducting investigation and submitting
final reports - It does not contain any provision which prescribes
what offences would be investigated by which police force - These
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provisions do not provide how parallel jurisdiction of two police
stations is to be demarcated - In fact, parallel jurisdiction to
investigate is not contemplated by Cr.P.C. as that would result in
chaos and anarchy and would frustrate the very purpose of
investigation - Therefore, the Government which has competence
over Entry 2 List II would have power to segregate and demarcate
the jurisdiction to investigate as between two police forces - Thus,
the impugned notifications are valid - This conclusion becomes
inevitable when Cr.P.C. is read with the Delhi Police Act, 1978 and
other cognate enactments - Entry 1 of List II, subject matter whereof
is 'public order', also stands excluded from the purview of GNCTD
and is the exclusive domain of the Parliament/ Central Executive -
The term 'public order' includes cognizance of offences, search,
seizure and arrest, followed by registration of reports of offences
(FIRs), investigation, prosecution, trial and in the event of
conviction, execution of sentences as well - All these aspects are to
be construed conjointly - Code of Criminal Procedure, 1973 - s.2(s)
- Interpretation of Statutes.
Commission of Inquiry Act, 1952 - s.2(a) - Whether the
GNCTD is an 'appropriate Government' under the Commission of
Inquiry Act, 1952 - Held: s.3(8) of the General Clauses (GC) Act
defines Central Government - s.3(60) of the GC Act, on the other
hand, defines State Government - The GC Act also defines
'Government', 'State' and 'Union Territory' - No doubt, definition
of State as contained in s.3(58) includes Union Territory - In respect
of Union Territory, the State Government would mean the Central
Government - The expression 'State Government' occurring in s.2(a)
of the COI Act which defines 'Appropriate Government' would not
mean GNCTD, a Union Territory - General Clauses Act -
ss.3(8) and 3(60).
Electricity Act, 2003 - s.108 - Whether under s.108 of the
Electricity Act, 2003 and under s.12 of the Delhi Electricity Reforms
Act, 2000, the power to issue directions to the State Commission is
with the GNCTD - Held: Under s.2(5)(b) of the Electricity Act, 2003,
Appropriate Government is the State Government having jurisdiction
under this Act in all those cases which do not come within the domain
of 'Central Government' - Insofar as NCTD is concerned, it has
its own Commission, namely, DERC - DER Act also stipulates powers
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of Government in Part IV thereof - General powers of the
Government, inter alia, include giving directions to the DERC in
matters of policy involving public interest, as the Government may
issue from time to time - These powers are akin to the powers given
under s.108 of the Electricity Act, 2003 - Insofar as DER Act is
concerned, it is an enactment enacted by Legislative Assembly of
NCTD - It operates within the NCTD - Under this Act, Delhi
Government has power to issue directions to the DERC in matters
of policies involving public interest - When such powers are
conferred specifically to Delhi Government under DER Act, it cannot
be said that insofar as s.108 of the Electricity Act, 2003 is concerned,
the expression 'State Government' therein would mean the Central
Government - Delhi Electricity Reforms Act, 2000 - s.12.
Stamp Act, 1899 - Whether the GNCTD had the power to
revise the minimum rates of Agricultural Land (Circle Rates) under
the provisions of Stamp Act, 1899 - GNCTD issued the notification
dated August 4, 2015 revising the rates of Agricultural Land (Circle
Rates) under the provisions of Indian Stamp Act, 1899 and Delhi
Stamp (Prevention of Under-Valuation of Instruments) Rules, 2007
- Before issuing this notification, matter was not placed before the
LG for his views or concurrence - Held: Notification dated August
4, 2015 revising the rates of agricultural land (circle rates) is
traceable to Entry 63 of List II and not to Entry 18 of List II - Said
notification is issued under the provisions of 1899 Act and 2007
Rules - Circle rates are fixed for the purpose of payment of stamp
duty - Therefore, they do not pertain to 'land' namely rights in or
over land, land tenures etc. or transfer of alienation of agricultural
land etc. - Stamp duty is not a duty on instrument but it is in reality
a duty on transfer of property - In that sense, the occasion for levy
of stamp duty is the document which is executed as distinguished
from the transaction which is embodied in the document - However,
even when the executive wing of Delhi Government takes a decision,
the LG is also empowered to form its opinion 'on any matter' which
may be different from the decision taken by his Ministers - Any
matter does not mean each and 'every matter' or 'every trifling
matter' but only those rare and exceptional matters where the
difference is so fundamental to the governance of the Union Territory
that it deserved to be escalated to the President - Therefore, the LG
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is not expected to differ routinely with the decision of Council of
Minister - At the same time, the proviso recognises that there may
be contingencies where LG and his Ministers may differ - In such
circumstances, LG is supposed to refer the matter to the President
for decision and act according to the decision given thereon by the
President - It means that final say, in case of difference between
LG and Council of Ministers, is that of the President - Such a scheme
of things clearly contemplates that the Council of Ministers is
supposed to convey its decisions to the LG to enable the LG to form
his view thereupon - The decision cannot be implemented without
referring the same to the LG in the first instance - More pertinently,
the decision here touches upon the governance of the UT -
Therefore, views of LG should have been taken before issuing
Notification dated August 4, 2015 - Constitution of India - Schedule
7 List II Entry 63 - Delhi Stamp (Prevention of Under-Valuation of
Instruments) Rules, 2007 - Notification dated August 4, 2015.
Constitution of India - Art.239AA, clause (4) and its proviso
- LG, role of - Normally, and generally, the LG is expected to honour
the wisdom of the council of ministers - He is also expected to clear
the files expeditiously and is not supposed to sit over it unduly - He
is under duty to bear in mind expediency and urgency of the subject
matter of the decisions taken by the GNCTD, where ever situation
so demands - That in fact is the facet of good governance -
Likewise, the executive is also expected to give due deference to the
unique nature of the role assigned to the LG in the Constitutional
scheme - By and large, it demands a mutual respect between the
two organs - Both should realise that they are to serve the people
of NCTD - Mutual cooperation, thus, becomes essential for the
effective working of the system.
Code of Criminal Procedure, 1973 - s.24 - Power to appoint
the Special Public Prosecutor - Whether it is the LG or the GNCTD
which has the power to appoint the Special Public Prosecutor under
s.24, Cr.PC. - Held: Special Public Prosecutor is appointed as per
the provisions of s.24(8) of Cr.P.C. which is to the effect that power
to appoint Special Public Prosecutor is conferred both upon the
Central Government and the State Government - Insofar as NCTD
is concerned, the 'State Government' means the LG for the purposes
of s.24(8) of Cr.P.C. - In respect of Entries 1 and 2 of List III, the
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GNCTD has legislative competence under Art.239AA of the
Constitution and that the LG under Art.239AA(4) of the Constitution
shall act on the aid and advice of the Council of Ministers -
Constitution of India - Art.239AA.
Disposing of the appeals, the Court
HELD:
Per A.K Sikri, J.
1: Whether the exclusion of 'Services' relatable to Entry
41 of List II of the Seventh Schedule from the legislative and
executive domain of the NCTD, vide Notification dated May 21,
2015, is unconstitutional and illegal?[Para 70][113-G-H]
1.1 It is undisputed that the matter pertains to the
'Services' which consists of Indian Administrative Service, Indian
Police Service. Likewise, DANICS and DANIPS are common
services catering to the requirement of various Union Territories
including NCTD. These are All India Services and the cadre in
question is Union Territory Cadre which is common to all Union
Territories and Delhi is one of them. Therefore, the Cadre does
not pertain to GNCTD itself. This cadre is administered by the
Central Government through Ministry of Home Affairs. Insofar
as allocation of personnel belonging to the said services is
concerned, it is the Central Government through Ministry of
Home Affairs which has to pass the necessary orders. Similarly,
Central Government is empowered to transfer such personnel
from one Union Territory to other. [Para 84][125-F-H; 126-A-B]
1.2 Entry 41 of List II deals with 'State Public Services'
and 'State Public Service Commission'. State Public Service
Commission does not exist in NCTD. When dealing with All
India Services and DHANICS Services etc., it is also doubtful to
mention it as State Public Service. The issue, however, is to see
as to whether it is within the powers of GNCTD to assign such
officers to particular departments, once they are allocated to the
NCTD by the joint cadre authority. As per Rule 2(c) of Indian
Administrative Services (Cadre) Rules, 1954, State includes a
Union Territory. Rule 7 deals with posting and, inter alia,
stipulates that in the case of joint cadre, posting shall be by the
State Government concerned. In the context of Article 312 of
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the Constitution, this Court has held in Prem Kumar Jain case
that Union Territories are States for the purpose of the said
Article. [Paras 86, 87][126-D-G]
Prem Kumar Jain and Others (1976) 3 SCC 743 : [1976]
Suppl. SCR 166 - relied on.
1.3 Similar is the position in respect of DANICS. Rule 11
of DANICS Rules, 2003 empowers Administrator of the
administration concerned i.e. Union Territory, to make these
postings. On the other hand, in the context of NCTD, the
Administrator, namely, LG is supposed to function in this behalf
on the aid and advice of the Council of Ministers. Therefore, it
becomes equally doubtful as to whether it falls within the
discretionary powers of the L.G. This leads to a very peculiar
situation. The appellant has endeavoured to assume the
executive power in respect of 'services' by relying upon Entry
41 of List II, which may be doubtful. That situation may give
discretionary powers to the L.G. On the other hand, it also cannot
be said that once the manpower is allocated to Union Territory of
Delhi, the GNCTD should not have any power to deal with such
employees. In such a scenario, and to avoid any conflict of
exercise of powers between the LG on the one hand (as
representative of the Central Government) and the Council of
Ministers with Chief Minister as Head on the other hand, for the
smooth functioning of the system, it is necessary to carve out a
just and fair mechanism. The transfers and postings of Secretaries,
HODs and other officers in the scale of Joint Secretary to the
Government of India and above can be done by the Lieutenant
Governor and the file submitted to him directly. For other levels,
including DANICS officers, the files can be routed through the
Chief Minister to Lieutenant Governor. In case of difference of
opinion between the Lieutenant Governor and the Chief Minister,
the view of the Lieutenant Governor should prevail and the
Ministry of Home Affairs can issue a suitable notification in this
regard. However, for Grade IV, III, II and I DASS officials, there
is an existing delegation of powers where for Grades IV and III,
all transfers and postings are done by the Secretary (Services);
for Grades II and I, the transfers and postings are done by the
Chief Secretary. For greater transparency, a Civil Services Board
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can be formed which can be headed by the Secretary (Services)
for Grades IV and III officials; by the Chief Secretary for Grades
II and I level officers. [Paras 88-90][126-G-H; 127-A-G]
1.4 Insofar as disciplinary authorities are concerned, the
same are already prescribed as per the CCA (CCS) Rules and
the Rules applicable for different services including IAS &
DANICS. The appointing and disciplinary authority is the
President of India, as per the powers delegated by the President
from time to time. Vigilance matters would get covered by the
applicable disciplinary rules in terms of officers competent to
initiate and take vigilance action. In the interest of good
governance and smooth Governmental function, efforts should
be made by both the Chief Minister as well as the LG for a
harmonious working relation. [Paras 91, 92][128-B-C]
2. Whether the exclusion of the jurisdiction of the AntiCorruption Branch (ACB) of the NCTD to investigate offences
committed under the Prevention of Corruption Act by the officials
of the Central Government and limiting the jurisdiction of the
ACB to the employees of the GNCTD alone is legal?[Para
92][128-D]
2.1 By Notification dated August 01, 1986, the
Administrator declared ACB of Delhi Administration as a Police
Station under Section 2(s) of Cr.P.C. for the purpose of certain
corruption related offences under the IPC and the Prevention of
Corruption Act, 1947. As per this notification, the ACB had
"jurisdiction all over the whole of Union Territory of Delhi". In
supersession of this notification by Notification dated November
08, 1993, the GNCTD through the Lieutenant Governor declared
the ACB of NCTD at Old Secretariat as a police station under
Section 2(s) of the Cr.P.C. for offences under the Prevention of
Corruption Act, 1988. Thereafter, two Notifications dated July
23, 2014 and May 21, 2015 came to be issued by the Central
Government as per which the jurisdiction of ACB is limited to
the employees of GNCTD only. The issue is limited, viz., whether
ACB is empowered to register cases in respect of Central
Government employees as well? The challenge laid by the
appellant to these Notifications is predicated on Entry 2 of List
II. Even after conferment of the status of quasi-State upon Delhi
(which though in constitutional term remains Union Territory),
Article 239AA (which gives such a status) itself excludes Entry 2
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from the domain of NCTD. Thus, in respect of 'Police', NCTD
does not have either legislative or executive power. [Paras 93,
106, 107][128-E-G; 138-D-F]
Ukha Kolhe v. State of Maharashtra [1964] 1 SCR 926
- referred to.
2.2 It is a settled principle that legislative entries are to
be interpreted in a broad and liberal manner consistent with
imputing to them the widest amplitude and as including all ancillary
and subsidiary matters. The scope of the term 'Police' as occurring
in Entry 2 of List II cannot, therefore, be artificially restricted or
limited to only constitution of the Police force, but would take
within its fold the legislative (and, therefore, executive) power
to exercise supervision and control over the functioning of the
Police so constituted, including by way of issuance of executive
directions delineating the powers, functions and jurisdiction of
different wings/sections of the Police. In essence, the impugned
notifications, to the extent they are in the nature of administrative
directions to the Police, are directly relatable to Entry 2 of List
II and as such squarely within the competent of the Government
of India. Even to the extent the executive power being exercised
qua the Police may correspond to the functions of the Police as
set out in the Cr.P.C., the nature of the power would not for this
reason stand altered or relatable to Entry 2 of List III. It is not
metaphorsis from List II to List III. In substance, issuance of an
administrative/executive direction to the Police is an exercise of
executive power relatable to the legislative entry pertain to Police.
Additionally, various provisions of the Delhi Police Act, 1978 also
demonstrate that power of control and supervision is invested
with the Administrator. This includes defining the limits and extent
of the police station and administrative control over police
stations. Moreover, Entry 2 List II would also include the
determination as to the nature and scope of investigations to be
done by the Police. Therefore, while establishing the ACB as a
Police Station, it would be permissible to circumscribe and limit
the investigation sphere of the ACB. [Paras 108, 109][138-G-H;
139-A-E]
2.3 No doubt, Section 2(s) of the Cr.P.C. contemplates
establishment of the police station by the State Government.
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However, the Cr.P.C. also lays down the procedure for making
arrest, conducting investigation and submitting final reports. It
does not contain any provision which prescribes what offences
would be investigated by which police force. Section 156 of the
Cr.P.C. merely provides that officers in the police station will
investigate those cognizable cases which can be tried by the court
having jurisdiction over the local area concerned would have
power to inquire into or try. These provisions do not provide
how parallel jurisdiction of two police stations is to be demarcated.
In fact, parallel jurisdiction to investigate is not contemplated by
Cr.P.C. as that would result in chaos and anarchy and would
frustrate the very purpose of investigation. This leads to hold
that the Government which has competence over Entry 2 List II
would have power to segregate and demarcate the jurisdiction to
investigate as between two police forces. Hence the impugned
notifications are valid. This conclusion becomes inevitable when
Cr.P.C. is read with the Delhi Police Act, 1978 and other cognate
enactments. [Para 110][139-F-H; 140-A]
2.4 Entry 1 of List II, subject matter whereof is 'public
order', also stands excluded from the purview of GNCTD and is
the exclusive domain of the Parliament/Central Executive. The
term 'public order' includes cognizance of offences, search,
seizure and arrest, followed by registration of reports of offences
(FIRs), investigation, prosecution, trial and in the event of
conviction, execution of sentences as well. All these aspects
have to be construed conjointly. In fact, there was a specific
rationale in excluding Entries 1, 2 and 18 of List II from the
jurisdiction of the Government of NCTD. The Balakrishnan
Committee report which recommended exclusion of these Entries
(and which part of the Report stands accepted by providing so
specifically in Article 239AA of the Constitution) was of the view
that duties and responsibilities pertaining to the Police and
maintenance of public order be vested solely in the Central
Government so that 'there is no confusion or overlap of the
jurisdiction in regard to the focal point of control and coordination'.
This rationale behind the said exclusion directly flows from the
unique position occupied by the NCTD as the nation's capital
and seat of the Central Government. [Paras 111, 112][140-B-E]
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Stainislaus v. State of Madhya Pradesh and Others
(1977) 1 SCC 677: [1977] 2 SCR 611; Zameer Ahmed
Latifur Rehman Sheikh v. State of Maharashtra and
Others (2010) 5 SCC 246 : [2010] 4 SCR 1042 - relied
on.
2.5 Insofar as Notification dated November 08, 1993 is
concerned, whereby ACB of NCTD at Old Secretariat as police
station was created by the Lieutenant Governor, the same has
not been challenged. No doubt, there was no elected Government
at that time. Fact remains that this Notification has held the field
even thereafter throughout. The impugned Notifications are only
a modification to the aforesaid Notification dated November 08,
1993 to a limited extent whereby it is clarified that this earlier
Notification shall be applicable to 'the officers and employees of
that Government only (GNCTD)'. Thus, the only effect is that the
ACB is not empowered to investigate into the offences of Central
Government employees under the Prevention of Corruption Act.
Admittedly, this investigation is carried out by the CBI.
Therefore, it obviates the duality and conflict of jurisdiction as
well. Thus, the validity of Notifications dated July 23, 2014 and
May 21, 2015 is upheld. [Paras 114, 115][141-D-F]
3. Whether the GNCTD is an 'appropriate Government'
under the COI Act?[[Para 115] [141-G-H]
Section 3(8) of the General Clauses (GC) Act defines
Central Government. Section 3(60) of the GC Act, on the other
hand, defines State Government. The GC Act also defines
'Government', 'State' and 'Union Territory'. No doubt, definition
of State as contained in Section 3(58) includes Union Territory.
In Section 3(60) of the GC Act, it is specifically provided that in
respect of Union Territory, the State Government would mean
the Central Government. The expression 'State Government'
occurring in Section 2(a) of the COI Act would not mean GNCTD,
a Union Territory. [Paras 129-132, 135][147-H; 148-A, D, F; 149B; 156-D]
Goa Sampling Employees' Association v. General
Superintendence Co. of India (1985) 1 SCC 206
: [1985] 2 SCR 373 - relied on.
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State (NCT of Delhi) v. Navjot Sandhu Alias Afsan Guru
(2005) 11 SCC 600 : [2005] 2 Suppl. SCR 79; Nabam
Rebia and Bamang Felix v. Deputy Speaker, Arunachal
Pradesh Legislative Assembly & Ors. (2016) 8 SCC 1 :
[2016] 6 SCR 1 - referred to.
4. Whether, under Section 108 of the Electricity Act, 2003
and under Section 12 of the Delhi Electricity Reforms Act, 2000,
the power to issue directions with the State Commission is with
the Government of NCT of Delhi?[Para 136][156-F]
4.1 Electricity Act, 2003 defines 'Appropriate Government'
in Section 2(5). As can be seen from clause (b), Appropriate
Government is the State Government having jurisdiction under
this Act in all those cases which do not come within the domain of
'Central Government'. This definition contained in Section 2(5)
of the Electricity Act is materially different from definition of
Appropriate Government in Section 2(a) of the COI Act. Another
important and distinguishing aspect is that in respect of Delhi,
the DER Act has also been enacted by the State Legislative
Assembly of NCT of Delhi to which President has accorded his
consent. Under this Act, Delhi Electricity Regulatory Commission
(DERC) has been established to exercise the powers conferred
on, and to perform the functions assigned to it under the said
Act. It acts as a quasi-judicial body which is clear from Section
10 of the DER Act. Section 11 stipulates various functions which
DERC is supposed to perform which include determination of
tariff for electricity, wholesale, bulk, grid or retail, as the case
may be; and to determine the tariff payable for the use of
transmission facility etc. In essence, such powers are almost the
same powers which are given to Central Electricity Regulatory
Commission (CERC). Thus, insofar as NCTD is concerned, it
has its own Commission, namely, DERC. General powers of the
Government, inter alia, include giving directions to the DERC in
matters of policy involving public interest, as the Government
may issue from time to time. These powers are akin to the powers
given under Section 108 of the Electricity Act. [Paras 143,
144][159-B, E-H; 160-A, B]
4.2 DER Act is an enactment enacted by Legislative
Assembly of NCTD. It operates within the NCTD. Government
here means GNCTD i.e. LG who is supposed to act on the aid
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and advice of the Council of Ministers. Under this Act, Delhi
Government has power to issue directions to the DERC in matters
of policies involving public interest. When such powers are
conferred specifically to Delhi Government under DER Act, it
cannot be said that insofar as Section 108 of the Electricity Act,
2003 is concerned, the expression 'State Government' therein
would mean the Central Government. If such an interpretation
is given, there would clearly be a conflict of jurisdiction in the
NCTD insofar as working of Electricity Act/DER Act are
concerned. As a result, the decision of the Delhi High Court on
this aspect is set aside. It was within the jurisdiction of GNCTD
to issue notification dated June 12, 2015. [Para 146][160-D-G]
5. Whether the Revenue Department of the GNCTD had
the power to revise the minimum rates of Agricultural Land (Circle
Rates) under the provisions of Indian Stamp Act, 1899?[Para
146][160-H]
5.1 The GNCTD had issued the notification dated August
4, 2015 revising the rates of Agricultural Land (Circle Rates)
under the provisions of Indian Stamp Act, 1899 and Delhi Stamp
(Prevention of Under-Valuation of Instruments) Rules, 2007.
Before issuing this notification, matter was not placed before the
LG for his views or concurrence. Insofar as Entry 91 of List I is
concerned, subject matter thereof is within the exclusive domain
of the Centre/Parliament. It deals with 'rates of stamp duty in
respect of wills of exchange, cheques, promissory notes, bills of
lading, letters of credit, policies of insurance, transfer of shares,
debentures, proxies and receipts'. It follows that insofar as
instruments mentioned in Entry 91 of List I are concerned, rates
of stamp duty of such documents are within the exclusive domain
of the Union. In respect of other instruments, it is the State
which has the necessary jurisdiction to fix the rates of stamp duty.
[Paras 147, 157][161-A-B; 165-C-D]
State of Gujarat & Ors. v. Akhil Gujarat Pravasi V.S.
Mahamandal & Ors. (2004) 5 SCC 155 : [2004]
3 SCR 956 - referred to.
5.2 Notification dated August 4, 2015 revising the rates of
agricultural land (circle rates) is traceable to Entry 63 of List II
and not to Entry 18 of List II. Circle rates are fixed for the purpose
of payment of stamp duty. Therefore, they do not pertain to 'land'
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namely rights in or over land, land tenures etc. or transfer of
alienation of agricultural land etc. Stamp duty is not a duty on
instrument but it is in reality a duty on transfer of property. In
that sense, the occasion for levy of stamp duty is the document
which is executed as distinguished from the transaction which is
embodied in the document. Even after accepting the said plea of
the GNCTD, the High Court set aside the said notification on
the ground that this decision of the Council of Ministers was
without seeking views/concurrence of the LG. [Paras 158,
159][165-E-H; 166-A]
5.3 It becomes clear from the proviso to clause (4) of Article
239AA that even when the executive wing of Delhi Government
takes a decision, the LG is also empowered to form its opinion
'on any matter' which may be different from the decision taken
by his Ministers. Any matter does not mean each and 'every
matter' or 'every trifling matter' but only those rare and
exceptional matters where the difference is so fundamental to
the governance of the Union Territory that it deserved to be
escalated to the President. Therefore, the LG is not expected to
differ routinely with the decision of Council of Minister. Difference
should be on cogent and strong reasons. However, this limitation
pertains to LG's exercise of power. At the same time, the proviso
recognises that there may be contingencies where LG and his
Ministers may differ. In such circumstances, LG is supposed to
refer the matter to the President for decision and act according
to the decision given thereon by the President. However,
normally, and generally, the LG is expected to honour the wisdom
of the council of ministers. He is also expected to clear the files
expeditiously and is not supposed to sit over it unduly. Likewise,
the executive is also expected to give due deference to the unique
nature of the role assigned to the LG in the Constitutional scheme.
By and large, it demands a mutual respect between the two organs.
Both should realise that they are here to serve the people of
NCTD. Mutual cooperation, thus, becomes essential for the
effective working of the system. [Para 163][159-B, E-H; 160-AB]
6: Whether it is the Lieutenant Governor or the GNCTD
which has the power to appoint the Special Public Prosecutor
under Section 24 of the Cr.PC.?[Para 163][172-C]
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As per the provisions of Section 24(8) of Cr.P.C., power to
appoint Special Public Prosecutor is conferred both upon the
Central Government and the State Government. The High Court
has held that under Section 24(8) of Cr.P.C., State Government
is empowered to appoint Special Public Prosecutor. However, as
NCTD is a Union Territory, by virtue of Section 3(60) of the GC
Act, it is the Central Government which should be the State
Government. Further, since by notification dated March 20, 1974,
administrator is empowered to exercise powers and the
expression 'State Government' would mean the LG. At the same
time, the High Court has also observed that power to appoint
Public Prosecutor is relatable to Entries 1 and 2 of List III in
respect of which GNCTD has legislative competence. Therefore,
the LG must appoint Special Public Prosecutor on the aid and
advice of Council of Ministers. As per Sections 3(8), 3(58) and
3(60) of the GC Act, the expression 'State Government' for the
purposes of a Union Territory means the President and includes
the Administrator in terms of Article 239A of the Constitution.
Insofar as NCT of Delhi is concerned, the 'State Government',
means the LG for the purposes of Section 24(8) of Cr.P.C. The
High Court rightly held that in respect of these entries, the
Government of NCT of Delhi has legislative competence under
Article 239AA of the Constitution and that the LG under Article
239AA(4) of the Constitution shall act on the aid and advice of
the Council of Ministers. The LG, while appointing the Special
Public Prosecutor, is to act on the aid and advice of the Council
of Ministers. [Paras 164, 166, 170, 172][172-D; 173-E-F;
176-C-E]
Samsher Singh vs. State of Punjab (1974) 2 SCC 831 :
[1975] 1 SCR 814; NDMC v. State of Punjab (1997) 7
SCC 339 : [1996] 10 Suppl. SCR 472; Rai Sahib Ram
Jawaya Kapur & Ors. v. State of Punjab AIR 1995 SC
549; Bir Singh v. Delhi Jal Board and Others (2018)
10 SCC 312 - referred to.
Per Ashok Bhushan, J. (Partly dissenting)
1. Article 239AA has been inserted by Constitution 69th
Amendment, 1991 with effect from 1st February, 1992.
Legislative powers to Legislative Assembly for Union Territory
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was an accepted principle even before 69th Constitution
(Amendment) Act. The Government of Union Territories Act,
1963 was enacted by Parliament in reference to Article 239A
brought by Constitution 14th Amendment, 1962. Article 239A
empowered the Parliament by law to create a body to function as
a Legislature for the Union Territory. Such Union Territory
constituted under Government of Union Territories Act, 1963
had Legislative power as provided by the Parliament itself under
Section 18 of the Act, 1963. Thus, the expression "insofar as any
such matter is applicable in relation to Union Territories" is a
known concept which was occurring in Section 18 of the Act of
1963 also. [Paras 26, 27, 28][190-E-F]
2. For Reorganisation of the administrative set up of Union
Territory of Delhi, the Government of India appointed a
Committee, namely, Balakrishnan Committee, which submitted
its report on 14.12.1989 to the Home Ministry. The Report of
the Balakrishnan Committee was the basis for enacting 69th
Constitution Amendment. In the Statement of Objects and
Reasons of the 69th Constitution Amendment, the Report of
Balakrishnan Committee was specifically referred to and relied
on. Balakrishnan Committee Report while elaborating the
expression "insofar as any such matters are applicable in relation
to Union Territories" noticed that apart from entries specifically
excluded, there were other entries, which ipso facto fell outside
the purview of the Delhi Legislative Assembly. Entry 41 of List
II of VIIth Schedule of the Constitution was specifically
considered in the Balakrishnan Committee Report and the
Report opined that the said entry is not applicable to the Union
Territory.