New Delhi: Delhi continues to remain a union territory under the Constitution with the Lieutenant Governor (LG) as its administrative head, Delhi High Court today ruled, 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 (ACB) 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 v. 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.

Delhi LG has wider discretionary power than Governor: HC

New Delhi:The Lieutenant Governor (LG) of Delhi has wider discretionary power than the Governor of a state and he can act on his own judgement without seeking the aid and advice of the Council of Ministers, the Delhi High Court today said.

“(In) the LG of National Capital Territory of Delhi, the discretion provided is wider than the discretion that may be exercised by the Governor of a State under Article 163(1) in view of the expression except in so far as he is, by or under any law, required to act in his discretion employed in clause (4) of Article 239AA,” a bench of Chief Justice G Rohini and Justice Jayant Nath said.

Dealing with the executive powers of the LG, it held, “Power of the LG to act in his discretion is not confined to the Constitution merely. The LG while exercising such powers and discharging such functions which any law requires to be done in his discretion acts on his own judgment without seeking the aid and advice of the Council of Ministers.”

The court gave its ruling while dismissing the AAP government’s plea challenging the Centre’s notification giving absolute power to the LG in administration of Delhi.

Dealing with the discretionary powers of the Governor and LG under the Constitution, the bench said, “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.”

Referring to the recent five-judge Constitution bench judgement of the Supreme Court in Arunachal Pradesh case in which the duties and responsibilities of the Governor, under the Constitution have been interpreted, the high court said that the Governor can exercise some function which are to be done “only on the basis of the aid and advice rendered to him” under the provisions of the Constitution. (

Holding that the LG can take any action in his wisdom in case of difference of opinion between the Council of Ministers and him, the bench said under the provision of the Constitution, the LG may refer the matter to the President for decision and act according to the decision given.

It said, “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.

“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.”

It said that the discretion conferred on the LG under the provision of the Constitution to refer the matter to the President in case of a difference of opinion between the Chief Minister and LG is not available to the Governor.

The Delhi government had contended that since there is an elected Assembly with the Council of Ministers headed by the Chief Minister in NCT of Delhi, the status of the LG is similar to that of a Governor in the matter of discharge of executive functions.

BJP hails Delhi HC verdict on administrative head

Puducherry:BJP’s Puducherry unit today welcomed the Delhi High Court ruling in favour of the Lt Governor of Delhi in a case relating to the tussle between AAP government and Centre over the administration of the national capital.

President of Puducherry BJP, V Saminathan told PTI that the verdict is “equally and automatically applicable to Union Territory of Puducherry also,” as there has been a “tussle” between the Chief Minister V Narayanasamy and Lt Governor Kiran Bedi.

He said it was a matter of concern that Narayanasamy had gone on record stating that all files should be routed through the Ministers to Bedi,he said.

The verdict given by Delhi High court was most welcome and would pave the way for its automatic application for Puducherry also, he added.

There are clear constitutional provisions for the role of Lt Governor in the Union Territory, Saminathan said.

He felt that the Chief Minister should join hands with the Lt Governor for smooth and tussle free administration.

Elected govt doesn’t mean rulers: Jung

New Delhi:Terming the Delhi High Court verdict as “historic”, Lieutenant Governor Najeeb Jung said today, “When we get elected, it doesn’t mean we are rulers and instead we will have to work and confine ourselves to our roles and jobs which are in the framework of the Constitution”.

Jung’s remarks came hours after the Delhi High Court held that the LG is the administrative head of the National Capital Territory and the AAP government’s contention that he is bound to act on the advice of the Council of Ministers was “without substance”.

He said that today’s judgment of the Delhi High Court is a “historic” and in view of this, he has come out to address his first press conference in the last three years.

“When we get elected, we are not rulers of this country.

You, me and nobody is the ruler. We will have to work and confine ourselves to our works and jobs which are in the framework of the Constitution,” Jung told reporters here.

Asked why he did not speak to media when AAP leaders, including the CM, “attacked” him on several issues, the Lt Governor quoted an Urdu couplet – “Waqt aane pe bata denge tujhe aye aasman, Hum abhi se kya batayen kya hamare dil mein.” (When the time comes, we shall show thee, O heaven/For why should we tell thee now, what lurks in our hearts?)

He said that there was no aggression on his part and he did not try to interfere in the functioning of an elected government but as Delhi is a Union territory, they (AAP) will have to seek the LG’s nod as per the Constitution.

“In Delhi, there was a chief commissioner’s rule in 1920.

The power of commissioner was handed over to the Lt Governor.

In 1989, the central government had formed Balakrishanan committee and there was a debate on its report in Parliament.

“The report favours that Delhi should remain Union territory and should not be made full statehood. In the report, Balakrishnan said that as we will have Assembly, but we should keep it (Delhi) union territory,” Jung said.

The Lt Governor said that he was the delegate of President of India.

On prospects of better relations with the Kejriwal government, Jung said, “We did not start tussle with them (AAP government). We just tried to make them (files and notifications sent by government for his nod) correct as per the Constitution. If they have any problem, we send back to government asking it to correct them as per the Constitution.”

Asked about the Commission of Inquiry to probe alleged CNG-fitness scam and revision of stamp duty for agricultural land, the LG said that the Kejriwal government should reply to people what is its relevance now.

“I think judges appointed as Chairman of the Commission of Inquiry by the government may be getting 3-6 lakh salary.

They should give answer to people. Besides, the government’s order of revising stamp duty has also been set aside by the Court,” he further said.

Deputy Chief Minister Manish Sisodia said that it will challenge the order in the Supreme Court and questioned why the Constitution was amended to have a legislative assembly if the city was to be run by the LG.

“We respectfully disagree with the High Court verdict,” Deputy Chief Minister Manish Sisodia said, adding there was a “big difference” between any other Union Territory and the national capital and alleged that on the “pretext of rules”, various decisions aimed at curbing corruption have been stalled.

Jung warns of action against SDM for issuing prohibitory order

New Delhi:Delhi Lt Governor Najeeb Jung today termed as “illegal” the order of SDM banning public meetings and protest near the Chief Minister’s residence and said strict action would be taken against him for violating the law.

He said that only officers of DCP rank and above can issue order under Section 144 of CrPC under the Police Act.

North DCP Madhur Verma has also asked the SDM to withdraw his order pointing that it was “unnecessary interference” in the working of police.

Sub Divisional Magistrate (SDM) B K Jha yesterday issued an order under Section 144 of the CrPC, restricting demonstrations, making of speech by any political party for 30 days outside Chief Minister Arvind Kejriwal’s residence on Flag Staff Road in North Delhi’s Civil Line area.

“The order is illegal because under police commissioner system, the SDM cannot issue an order under Section 144 of CrPC. We will pull up the magistrate.

“He is liable for action for violating the law,” Jung told reporters here.

“If LG is sitting in his office, he imposes Section 144. Tell me can I do it? Despite the fact that the police commissioner reports to me, I cannot impose Section 144 in a particular area. Under Police Act, a Deputy Commissioner of Police can do it,” the Lt Governor further said.

In view of “serious and law and order problems”, Jha, a DANICS officer, had imposed ban on public meetings, dharnas, slogans near the CM’s residence.

“It has been reported that various political parties and pressure groups may hold protests, demonstrations, dharnas, processions etc on political and others issues in front, near or around the residence of the chief minister, GNCTD (Government of National Capital Territory of Delhi), which may create serious law & order problems…,” the SDM said.

“These protests need to be prohibited in order to “prevent public nuisance, obstruction to traffic and persons, danger to inhuman lives or safety and public property,” the SDM (Civil Lines) had said in his order.

Asking Jha to withdraw his yesterday’s order, Madhur Verma said that “a letter has been written to SDM Civil Lines to withdraw his order as it amounts to unnecessary interference in the working of Delhi Police and is beyond the domain of powers of SDM in Delhi.

Verma, the officer whose North Delhi police district covers Chief Minister’s residence, said that order issued by SDM Civil Lines, on August 2 is in violation of Ministry of Home Affairs’ order, dated July 1, 1978, according to which powers and duties of Executive Magistrate and District Magistrate under section 144 CrPC within Delhi are given to Commissioner of Delhi Police.

HC verdict not a defeat or victory for anyone: Jung

New Delhi:Lt Governor Najeeb Jung today said the High Court’s ruling that he is the “administrative head” of Delhi was neither a victory for him nor a defeat for Chief Minister Arvind Kejriwal, noting its crux is to govern the city as per the provisions in the Constitution.

Jung, addressing a rare press conference, said a number of decisions including Delhi Government’s directions to power regulator DERC, appointment of government representatives to BSES board and certain orders relating to tax will have to be “corrected” as they did not have his concurrence.

The Lt Governor, who had a long running battle with the AAP government on a host of jurisdictional issues, said he always wanted to protect the provisions of the Constitution and did not agree to AAP government’s decisions when he found they were at variance with the laid down norms.

“It is not a victory of anyone. It is not a win for Najeeb Jung and loss for Arvind Kejriwal. The court order is a kind of clarification that incorrect things will have to be corrected,” he said.

The LG, who has been targeted by the Kejriwal Government over his decisions, said, “My DNA is such that I don’t get affected by abusive language.”

Jung said the verdict clarified that matters related to services will have to be handled by the LG and that the Centre’s concurrence was not necessary on certain issues and he can take calls on them.

In a huge setback for the Kejriwal Government, the High Court held that the LG is the administrative head of the National Capital Territory and the AAP Government’s contention that he is bound to act on the advice of Council of Ministers was “without substance”.

A bench of Chief Justice G Rohini and Justice Jayant Nath dismissed AAP Government’s plea challenging the Centre’s May 21, 2015, notification giving absolute powers to LG in appointing bureaucrats in the national capital.

The court also quashed several notifications issued by Kejriwal after returning to power last year, saying they were illegal as they were issued without concurrence of LG.

The bench, in its 194-page judgement, said the AAP Government’s contention that the LG is bound to act on the aid and advice of Council of Ministers cannot be accepted. MORE PTI BUN MPB

Jung said Kejriwal may have animosity against him but he does not have any such thing against the Delhi Chief Minister.

Asked about AAP government’s decision to challenge the High Court verdict in Supreme Court, Jung said, “They do not have a case.”

On the slugfest between his office and AAP government, the LG said, “My office has never used abusive language against anybody.”

“We did not start the slugfest. Whenever we get any papers, (we) validate it with constitutional statutes. We had sent to the Centre all 14 bills sent to me by AAP. They are looking into it.”

On the five bills relating to enhancing salaries of MLAs, Ministers, Speaker, Deputy Speaker and Leader of Opposition in the House, he said following communication on them by the Centre, he had sought certain clarifications but the AAP government has not responded.

“Any bill that has financial implication or chance of repugnance with a central law should get prior approval,” Jung said.

He said he had declared as “unconstitutional” only a few orders. “I do report to the Centre, but (it is) wrong to say we act against interest of Delhi government.”

“Don’t think the stalemate has affected governance in Delhi. 99 per cent matters that came to us were cleared,” he said, adding “Kejriwal and Najeeb Jung are immaterial. What matters is constitutional norms.” PTI