Government of National Capital Territory of Delhi and Ors.

Vs.

Union of India and Ors.

(CASE BRIEF)

Issues

1. Whether the Lt. Governor is bound to act only by the aid and advice of the Council of Ministers in the
exercise of his functions in relation to matters with respect to which the Legislative Assembly of NCT of
Delhi has power to make laws?

2. Whether it is necessary to refer the issue to a larger Bench in the light of the judgments of the co-
ordinate Benches of this Court in O.P. Pahwa v. State of Delhi (supra), Delhi High Court Bar Association
v. Union of India (supra) and United RWAS Joint Action v. Union of India (supra)?

3. Whether the subject matter of the disputes in the petitions are exclusively triable by the Supreme Court
of India by virtue of Article 131.

Issue 1

Case of Govt. of NCT of Delhi:

 The Govt. of NCT of Delhi claimed that by virtue of Article 239AA constituting a Legislative
Assembly for NCTD and conferring upon it exclusive legislative competence in respect of
subjects mentioned in clause (3), Delhi has been given special status.
 It was further claimed that consequent to the aforesaid Constitutional conferment of legislative
power, the Lt. Governor is bound to act only on the aid and advice tendered to him by the Council
of Ministers of the GNCTD with regard to those subjects in respect of which exclusive legislative
competence is conferred on the Legislative Assembly of NCTD. Reliance was placed on the
decision of the Constitution Bench in Samsher Singh v. State of Punjab; reiterated and applied in
Rajendra Singh Verma v. Lt. Governor; MANU/SC/1071/2011 : (2011) 10 SCC 1.
 It was contended that the proviso to Article 239AA(4)1 operates only in case of conflict of
opinion between Council of Ministers and the Lt. Governor in the event of

1
(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 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 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 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
 1. inconsistency between law made by Parliament and the law made by Delhi Legislative
Assembly
2. Lt. Governor exercising power on reserved subjects or in situations requiring him to
consult the Chief Minister/Council of Ministers (Rule 45 of the Transaction of Business
Rules).
 As per Section 41 of GNCTD Act, 1991, the discretion of the Lt. Governor extends only to
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 discretion or to exercise any judicial or quasijudicial functions and
therefore the Lt. Governor cannot exercise discretionary powers in any other matter.
 Further, it was contended that Article 239 of the Constitution is not applicable to NCT of Delhi
since Article 239AA does not incorporate by reference Article 239, Article 239AA being not
only a self-contained code but also a special provision that confers on Delhi the status of National
Capital Territory

Case of Union of India

 Even after the insertion of Article 239AA in the constitution, Delhi remains under the overall
control of the Central Government and continues to be a Union Territory. Thus, Article 239
continues to be applicable to it and the Lt. Governor continues to act as Administrator.
 Clause (3) of Article 239AA2 of the Constitution makes it clear that the Parliament will have
legislative supremacy with respect to any laws made in Delhi. As a natural corollary, the Central
Government will also have executive supremacy over the NCT of Delhi.

action or to give such direction in the matter as he deems necessary. (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 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 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 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.

2
(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 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.
(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) 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 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 received his assent, such law shall prevail in the National Capital Territory:
  The learned ASG relied upon the judgments of the Supreme Court in R.S.Nayak v. A.R.Antulay;
(1984) 2 SCC 183 Shrimant Shamrao Suryavanshi & Anr. v. Prahlad Bhairoba Suryavanshi by
LRs & Ors.; (2002) 3 SCC 676 and T.M.A. PAI Foundation v. State of Karnataka; (2002) 8 SCC
481, to contend that the report of the Balakrishnan Committee on the basis of which Article
239AA has been inserted in the Constitution can be looked into for the purpose of seeing the real
intention of Parliament in enacting the said provision.
 The discretion conferred on the Lt. Governor under the proviso to Article 239AA(4) of the
Constitution to refer the matter to the President in case of a difference of opinion between the
Chief Minister and Lt. Governor is not available under Articles 74 and 163 of the Constitution
dealing with the powers of the President and the Governor
 The scope of "aid and advise" in Article 239AA (4) of the Constitution is not comparable to the
scope of "aid and advise" received by the Governor of a State under Article 162 of the
Constitution as (Devji Vallabhbhai Tandel v. Administrator Goa, Daman & Diu; (1982) 2 SCC
222.)

The Court held :

 Relying on R.S. Nayak v. A.R. Antula, T.M.A. Pai Foundation v. State of Karnataka and Shrimant
Shamrao Suryavanshi & Anr. v. Prahlad Bhairoba Suryavanshi by LRs & Ors, held that on
comparison of the language of Article 163(1) read with the language of Article 239AA(4) clearly
shows the difference between the position of the Governor of a State on the one hand and the Lt.
Governor of NCTD on the other hand.
 Every decision taken by the Council of Ministers shall be communicated to the Lt. Governor for
his views and that 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.
 It was mandatory under the constitutional scheme to communicate the decision of the Council of
Ministers to the Lt. Governor even in relation to the matters in respect of which power to make
laws have been conferred on the Legislative Assembly of NCTD under clause (3) (a) of Article
239AA of the Constitution and an order thereon can be issued only where the Lt. Governor does
not take a different view.

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 advice of the Council of Ministers was held to be untenable and was not accepted.

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 repealing the law so made by the
Legislative Assembly.
Issue 2

Case of Govt. of NCT of Delhi

It was contended by that since it has been authoritatively held by two Coordinate Benches i.e. Om
Prakash Pahwa v. State of Delhi (supra) and United RWAs Joint Action v. Union of India of this Court
that the Lt.Governor of GNCTD is bound by the aid and advice tendered by the Council of Ministers, it is
not open to this Bench to hold otherwise.

Case of Union of India

Relying on the decision of another Co-ordinate Bench of this Court in Delhi High Court Bar Association
v. Union of India, it was contended that the decisions in Om Prakash Pahwa v. State of Delhi (supra) and
United RWAs Joint Action v. Union of India (supra) are per incuriam and are not binding.

The Court held:

In both Om Prakash Pahwa and United RWAs Joint Action, the Co-ordinate Benches had only considered
the question as to whether the Lt.Governor of NCTD while passing the orders impugned therein was
required to exercise the functions under the respective statutes i.e. Motor Vehicles Act and CAG Act in
his discretion or in exercise of the executive powers of the State on the aid and advice of the Council of
Ministers. This question was answered on interpretation of the statutory provisions under which the
impugned orders were passed.

In none of the matters, the issue as to whether the Lt. Governor of NCT of Delhi while exercising the
executive functions under Article 239AA(4) is bound to act only on the aid and advice of the Council of
Ministers was considered or decided. The ratio laid in the said decisions, therefore, cannot be construed to
mean that the Lt. Governor cannot discharge any function or exercise any power without the aid and
advice of the Council of Ministers.

Issue 3

The court was of the view that the issues raised in none of the petitions involve a question of federal
nature or a dispute concerning the existence or extent of a legal right of the applicant/GNCTD.

The Court relying on the ratio laid down in State of Rajasthan v.Union of India; MANU/SC/0370/1977 :
(1977) 3 SCC 592 observed that the true construction of Article 131 of the Constitution is that a dispute
must arise between the Union of India and a State and that it cannot be which arises out of differences
between the Government in office at the Centre and the Government in office in the State. It was also
explained that the purpose of Article 131 is to provide a forum for resolution of disputes which must
involve a question based on the existence or extent of a legal right and not a mere political issue. Article
131 of the Constitution is attracted only when a dispute arises between or amongst the States and the
Union in the context of the constitutional relationship that exists between them and the legal rights
flowing therefrom.
In their opinion, the said question needs to be answered on interpretation of the legislative entries in the
light of clauses (3) and (4) of Article 239AA of the Constitution and nothing more. Hence, the court held
that the present batch of petitions were not exclusively triable by the Supreme Court of India by virtue of
Article 131 and disagreed with the contention of the applicant/GNCTD that the proceedings in the same
should remain stayed till the Original Suit filed by the applicant under Article 131 of the Constitution is
adjudicated by the Supreme Court.