GOVERNMENT OF NCT OF DELHI v. UNION OF INDIA & ANOTHER

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& ANOTHER [ASHOK BHUSHAN, J.]

exercised in a routine manner rather it is to be exercised by the LG on A appropriate reasons to safeguard the interest of the Union Territory.

114. Learned Additional Solicitor General has submitted before us that in the last few years there have been very few references by the LG in exercise of powers under proviso to sub-clause (4) of Article 239AA. Rule 14 sub-rule (2) of 1993 Rules empowers the Minister B concerned to take necessary action to give effect to the decision of the Council after decision has been communicated to the LG. The purpose of communication is to enable the LG to discharge obligation to oversee and scrutinise the decision. Although, there is no indication in the 1993 Rules as to after communication of the decisions of the Council as to what stage the decisions are to be implemented. As observed no concurrence is required on the decisions and communication is only for the purpose of enabling the LG to formulate opinion as to whether there is any such difference which may require reference. Only a reasonable time gap is to elapse, which is sufficient to the LG to scrutinise the decision. It is for the LG and the Council of Ministers to formulate an appropriate procedure for smooth running of the administration decisions which can very well be implemented by the GNCTD immediately after the decisions are communicated to LG and are “seen” by the LG. When LG has seen a decision and does not decide to make a reference, the decision has to be implemented by all means. We are, thus, of the view that the 1991 Act and 1993 Rules cover the entire gamut, manner and procedure of executive decisions taken by the Council of Ministers/ Minister their communication, and implementation and the entire administration is to be run accordingly.

115. The 1993 Rules provide that Chief Secretary and the Secretary of the Department concerned are severally responsible for the careful observance of these Rules and when either of them considers that there has been any material departure, he shall bring it to the notice of the Minister-in-charge, Chief Minister and the LG. Rule 57 is as follows: “57. The Chief Secretary and the Secretary of the Department concerned are severally responsible for the careful observance of these rules and when either of them considers that there has been any 20 material departure from these rules, he shall personally bring it to the notice of the Minister-in-charge, Chief Minister and the Lieutenant Governor.” H

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A 116. The duty of observance of 1993 Rules and other statutory provisions lay both on Council of Ministers, Chief Minister and LG. All have to act in a manner so that the administration may run smoothly without there being any bottleneck. The object and purpose of all constitutional provisions, Parliamentary enactments and the Rules framed by the President is to carry the administration in accordance with the B provisions in the interest of public in general so that rights guaranteed by the Constitution to each and every person are realised. When the duty is entrusted on persons holding high office, it is expected that they shall conduct themselves, in faithful, discharge of their duties to ensure smooth running of administration and protection of rights of all concerned.

C 117. I have perused the elaborate opinion of My Lord, the Chief Justice with which I substantially agree, but looking to the importance of the issues, I have penned my own views giving reasons for my conclusions.

118. I have also gone through the well researched and well considered opinion of Brother Justice D.Y. Chandrachud. The view D expressed by Justice Chandrachud are substantially the same as have been expressed by me in this judgment.

119. In view of the foregoing discussions we arrive on the following conclusions on the issues which have arisen before us:

E CONCLUSIONS I. The interpretation of the Constitution has to be purposive taking into consideration the need of time and Constitutional principles. The intent of the Constitution framers, the object and reasons of a Constitutional Amendment always throw light on the Constitutional provisions. For F adopting the purposive interpretation of a particular provision the express language employed cannot be given a complete go-bye. II. The Parliament has power to make laws for NCTD in respect of any of the matters enumerated in State List and Concurrent List. The Legislative Assembly of NCTD has also legislative power with respect to matters enumerated in the State List (except excepted entries) and in G the Concurrent List. III. Executive power is co-extensive with the legislative power. Legislative power is given to give effect to legislative enactments. The Policy of legislation can be given effect to only by executive machinery. H

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& ANOTHER [ASHOK BHUSHAN, J.]

IV. When the Constitution was enforced, executive power of Union A in reference to Part C States with regard to Concurrent List was not excluded. Part C States having been substituted by 7 th Constitution Amendment as Union Territories. The word ‘State’ as occurring in proviso to Article 73 after 7th Constitution Amendment cannot be read as including Union Territory. Reading the word ‘Union Territory’ within the word B ‘State’ in proviso to Article 73 shall not be in consonance with scheme of Part VIII (Union Territories) of the Constitution. V. Executive power of the Union is co-extensive on all subjects referable to List II and III on which Legislative Assembly of NCTD has also legislative powers. C VI. The “aid and advice” given by Council of Ministers as referred to in sub-clause (4) of Article 239AA is binding on the LG unless he decides to exercise his power given in proviso to sub-clause (4) of Article 239AA. VII. The Legislative Assembly of NCTD being representing the D views of elected representatives, their opinion and decisions have to be respected in all cases except where LG decides to make a reference to the President. VIII. The power given in proviso to sub-clause (4) to LG is not to be exercised in a routine manner rather it is to be exercised by the LG E on valid reasons after due consideration, when it becomes necessary to safeguard the interest of the Union Territory. IX. For the Executive decisions taken by the Council of Ministers/ Ministers of GNCTD, proviso to sub-clause (4) gives adequate safeguard empowering the LG to make a reference to the President in the event there is difference of opinion between decisions of the Ministers and the LG, but the Constitutional Scheme does not suggest that the decisions by the Council of Ministers/Ministers require any concurrence of the LG. X. The scheme as delineated by 1991 Act and 1993 Rules clearly indicates that LG has to be kept informed of all proposals, agendas and decisions taken. The purpose of communication of all decisions is to keep him posted with the administration of Delhi. The communication of all decisions is necessary to enable him to go through so as to enable him to exercise the powers as conceded to him under proviso to sub-clause

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A (4) as well as under 1991 Act and 1993 Rules. The purpose of communication is not to obtain concurrence of LG. XI. From persons holding high office, it is expected that they shall conduct themselves in faithful discharge of their duties so as to ensure smooth running of administration so that rights of all can be protected.

B 120. We having answered the constitutional issues raised before us in the above manner let these matters be now placed before the appropriate Bench for hearing after obtaining orders from Hon’ble the Chief Justice.

C Nidhi Jain Matter to be placed before appropriate regular Bench.