| 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 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 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 provisions do not provide how parallel jurisdiction of two police stations is to be demarcated – In fact, parallel jurisdiction to investigate is not contemplated by Cr.P.C. as that would result in chaos and anarchy and would frustrate the very purpose of investigation – Therefore, the Government which has competence over Entry 2 List II would have power to segregate and demarcate the jurisdiction to investigate as between two police forces – Thus, the impugned notifications are valid – This conclusion becomes inevitable when Cr.P.C. is read with the Delhi Police Act, 1978 and other cognate enactments – Entry 1 of List II, subject matter whereof is ‘public order’, also stands excluded from the purview of GNCTD and is the exclusive domain of the Parliament/ Central Executive – The term ‘public order’ includes cognizance of offences, search, seizure and arrest, followed by registration of reports of offences (FIRs), investigation, prosecution, trial and in the event of conviction, execution of sentences as well – All these aspects are to be construed conjointly – Code of Criminal Procedure, 1973 – s.2(s) – Interpretation of Statutes.Commission of Inquiry Act, 1952 – s.2(a) – Whether the GNCTD is an ‘appropriate Government’ under the Commission of Inquiry Act, 1952 – Held: s.3(8) of the General Clauses (GC) Act defines Central Government – s.3(60) of the GC Act, on the other hand, defines State Government – The GC Act also defines ‘Government’, ‘State’ and ‘Union Territory’ – No doubt, definition of State as contained in s.3(58) includes Union Territory – In respect of Union Territory, the State Government would mean the Central Government – The expression ‘State Government’ occurring in s.2(a) of the COI Act which defines ‘Appropriate Government’ would not mean GNCTD, a Union Territory – General Clauses Act – ss.3(8) and 3(60).Electricity Act, 2003 – s.108 – Whether under s.108 of the Electricity Act, 2003 and under s.12 of the Delhi Electricity Reforms Act, 2000, the power to issue directions to the State Commission is with the GNCTD – Held: Under s.2(5)(b) of the Electricity Act, 2003, Appropriate Government is the State Government having jurisdiction under this Act in all those cases which do not come within the domain of ‘Central Government’ – Insofar as NCTD is concerned, it has its own Commission, namely, DERC – DER Act also stipulates powers of Government in Part IV thereof – General powers of the Government, inter alia, include giving directions to the DERC in matters of policy involving public interest, as the Government may issue from time to time – These powers are akin to the powers given under s.108 of the Electricity Act, 2003 – Insofar as DER Act is concerned, it is an enactment enacted by Legislative Assembly of NCTD – It operates within the NCTD – Under this Act, Delhi Government has power to issue directions to the DERC in matters of policies involving public interest – When such powers are conferred specifically to Delhi Government under DER Act, it cannot be said that insofar as s.108 of the Electricity Act, 2003 is concerned, the expression ‘State Government’ therein would mean the Central Government – Delhi Electricity Reforms Act, 2000 – s.12. Stamp Act, 1899 – Whether the GNCTD had the power to revise the minimum rates of Agricultural Land (Circle Rates) under the provisions of Stamp Act, 1899 – GNCTD issued the notification dated August 4, 2015 revising the rates of Agricultural Land (Circle Rates) under the provisions of Indian Stamp Act, 1899 and Delhi Stamp (Prevention of Under-Valuation of Instruments) Rules, 2007 – Before issuing this notification, matter was not placed before the LG for his views or concurrence – Held: Notification dated August 4, 2015 revising the rates of agricultural land (circle rates) is traceable to Entry 63 of List II and not to Entry 18 of List II – Said notification is issued under the provisions of 1899 Act and 2007 Rules – Circle rates are fixed for the purpose of payment of stamp duty – Therefore, they do not pertain to ‘land’ namely rights in or over land, land tenures etc. or transfer of alienation of agricultural land etc. – Stamp duty is not a duty on instrument but it is in reality a duty on transfer of property – In that sense, the occasion for levy of stamp duty is the document which is executed as distinguished from the transaction which is embodied in the document – However, even when the executive wing of Delhi Government takes a decision, the LG is also empowered to form its opinion ‘on any matter’ which may be different from the decision taken by his Ministers – Any matter does not mean each and ‘every matter’ or ‘every trifling matter’ but only those rare and exceptional matters where the difference is so fundamental to the governance of the Union Territory that it deserved to be escalated to the President – Therefore, the LG is not expected to differ routinely with the decision of Council of Minister – At the same time, the proviso recognises that there may be contingencies where LG and his Ministers may differ – In such circumstances, LG is supposed to refer the matter to the President for decision and act according to the decision given thereon by the President – It means that final say, in case of difference between LG and Council of Ministers, is that of the President – Such a scheme of things clearly contemplates that the Council of Ministers is supposed to convey its decisions to the LG to enable the LG to form his view thereupon – The decision cannot be implemented without referring the same to the LG in the first instance – More pertinently, the decision here touches upon the governance of the UT – Therefore, views of LG should have been taken before issuing Notification dated August 4, 2015 – Constitution of India – Schedule 7 List II Entry 63 – Delhi Stamp (Prevention of Under-Valuation of Instruments) Rules, 2007 – Notification dated August 4, 2015.Constitution of India – Art.239AA, clause (4) and its proviso – LG, role of – Normally, and generally, the LG is expected to honour the wisdom of the council of ministers – He is also expected to clear the files expeditiously and is not supposed to sit over it unduly – He is under duty to bear in mind expediency and urgency of the subject matter of the decisions taken by the GNCTD, where ever situation so demands – That in fact is the facet of good governance – Likewise, the executive is also expected to give due deference to the unique nature of the role assigned to the LG in the Constitutional scheme – By and large, it demands a mutual respect between the two organs – Both should realise that they are to serve the people of NCTD – Mutual cooperation, thus, becomes essential for the effective working of the system.Code of Criminal Procedure, 1973 – s.24 – Power to appoint the Special Public Prosecutor – Whether it is the LG or the GNCTD which has the power to appoint the Special Public Prosecutor under s.24, Cr.PC. – Held: Special Public Prosecutor is appointed as per the provisions of s.24(8) of Cr.P.C. which is to the effect that power to appoint Special Public Prosecutor is conferred both upon the Central Government and the State Government – Insofar as NCTD is concerned, the ‘State Government’ means the LG for the purposes of s.24(8) of Cr.P.C. – In respect of Entries 1 and 2 of List III, the GNCTD has legislative competence under Art.239AA of the Constitution and that the LG under Art.239AA(4) of the Constitution shall act on the aid and advice of the Council of Ministers – Constitution of India – Art.239AA. |
