Delhi
Bar Assocaition Vs. Union of India & Ors. [2008] INSC 937 (15 May 2008)
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL
ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 437 OF 2000 Delhi Bar Association
(Regd.) ....... Petitioner vs.
Union of India & Ors. ... Respondents WITH
WRIT PETITION (CIVIL) NO. 451 OF 2000 (Som Nath vs. Union of India &
Ors.), WRIT PETITION (CIVIL) NO. 741 OF 1989 (Delhi Judicial Service Association (Regd.) vs. Union of India &
Ors.) and TRANSFERRED CASE (CIVIL) NO. 38 OF 1996 (New Delhi Bar
Association & Anr. vs. Union of India & Ors.) P.P. NAOLEKAR, J.:
1. The Delhi High Court was
constituted in 1966. Even after the constitution of the Delhi High Court, the
region of Delhi
had only one district civil court and one session court. Over the years, with
growth in the population of the city, the amount of litigation has seen a
constant upward spiral. The very high volume of litigation both on the civil
side and on the criminal side has led to a huge backlog of cases and great delays
in dispensation of justice, putting the common man and the layman-litigant to
great inconvenience.
2. This rather dismal state of
affairs in the Delhi courts has not gone unnoticed and at various stages,
suggestions and requests have been made to the Union 2 Government for division
of the region of Delhi into smaller judicial districts with civil and criminal
courts in each district to handle the volume of litigation, to help reduce the
backlog of cases and to dispense justice with greater efficacy. The steps taken
in this direction will be discussed in greater detail in the latter section of
facts.
3. There have been a few petitions
on the question of backlog of cases and delay in dispensation of justice. The
case filed by the Delhi Judicial Service Association [WP(C) No.741 of 1989],
among others, prayed this Court to direct the Delhi Government for creating
additional posts in the Delhi Judicial Service. This Court, while passing
orders in that matter, directed the Delhi High Court to form a Committee under
its aegis, which would look into the feasibility of division of Delhi into
smaller judicial districts. On the basis of the report prepared by the
Committee, this Court passed an order on 01.05.2000 directing the Delhi
Government to take concrete steps towards the creation of judicial districts
and further directed the Delhi High Court to appoint two of its Judges to
oversee the process of implementation.
4. In pursuance of this order, the
Delhi Government, through the Lt.
Governor of the National Capital
Territory of Delhi, issued a notification in the Official Gazette dated
28.06.2000 under the provisions of Section 19 of the Punjab Courts Act, 1918 as
extended to the region of Delhi.
5. The instant WP(C) No.437 of
2000 has been filed by the Delhi Bar Association, claiming to be the largest
association of its nature in the country, questioning the propriety of such
notification and issuance thereof by the Lt. Governor without it 3 being
deliberated upon by the Legislative Assembly of Delhi, and thereby questioning
the validity of its operation.
6. The facts and the chronology of
events leading up to the first WP(C) No.
741 of 1989 (Delhi Judicial
Service Association vs. Union of India & Ors.) and the facts leading up to
the second Writ Petition in WP(C) No. 437 of 2000 are as follows.
7. WP(C) No.741 of 1989 was filed
by the Delhi Judicial Service Association praying the court to issue a mandamus
directing the Government to increase the number of available posts in Delhi
Higher Judicial Service and Delhi Judicial Service, to streamline the process
of filling up of any vacancies in the posts and to conduct the whole process
with greater transparency. While hearing the petition, a number of orders were
passed by this Court at various instances on matters relating to creation of
posts and criterion for promotion.
8. During the pendency of the
petitions, there were deliberations at various levels between the Delhi High
Court, the Union Government and the Delhi Administration regarding the
possibility of division of Delhi into smaller judicial districts and the
constitution of courts in these districts. Since there was a connection between
the question of division of Delhi into smaller judicial districts and the
issues that were being heard in WP(C) No.741 of 1989, the Delhi High Court,
which was one of the respondents in the petition, considered it fit to file an
additional affidavit on its behalf bringing to light the deliberation on
division of Delhi into smaller judicial districts. The chronology of events
leading up to the additional affidavit being filed is enumerated below.
4
9. There had been attempts towards
the division of Delhi into smaller constituent judicial districts.
Characteristics of such an expectation are contained in the letter dated
21.05.1979 sent by the then Chief Justice of Delhi High Court to the Union Law
Minister requesting some official action towards the division of Delhi into
five judicial districts. The letter says that historically Delhi has been one
civil district for the purposes of civil work and one sessions division for
criminal work as once upon a time Delhi was the district of Punjab. Even after
Delhi became a Union Territory, it continued to be so till the High Court was
constituted in 1966. Initially there used to be only one District &
Sessions Judge with one or two Additional and a few Sub Judges. With increase
in the population of Delhi and consequent litigation, there has been a
tremendous increase in the number of judicial officers dealing with civil and
criminal cases.
Administratively as well as
judicially, one District & Sessions Judge cannot effectively control such
large number of judicial officers. Therefore, it was suggested that in view of
the enormous amount of litigation pending in Delhi, the Union Territory should
be divided into five districts on the analogy of its division into five areas
for police administration. Just as there is Superintendent of Police for each
police district, there should be District & Sessions Judge for each civil
district and sessions division. This should be called Central, East, West,
North and South. The benefits of such re- organisation were said to be obvious.
First, it will bring courts nearer to the place where the litigants reside or
the cause of action arises. Secondly, it will allow the Bar of these five areas
to locate themselves near the courts. Thirdly, it will redress the great
injustice that is caused to the Delhi Judicial Service and the Delhi Higher
Judicial Service by 5 denying them the normal higher judicial posts which would
have been available if they are divided into several districts in the State.
10. Vide letter dated 26.03.1982,
the Union Government intimated the High Court of Delhi and the Delhi
Administration of its agreement to the possibility of dividing Delhi into five
judicial districts for the purposes of effective administration of justice. In
pursuance of this communiqui, the then Chief Justice of Delhi High Court
constituted a Committee to look into the modalities for implementation of such
a scheme.
This move towards division of
Delhi into five judicial districts and the possibility of streamlining of the
judicial set-up in the Delhi region was put on the back- burner when the Union
Law Minister intimated the Delhi High Court vide his letter dated 05.10.1984
that the Government of India was not in favour of division of Delhi into
judicial districts.
11. A few years later, the Delhi
High Court reiterating the importance of the move to divide Delhi into smaller
judicial districts, sent a letter dated 09.04.1990 through Registrar addressed
to the Government of India conveying the desire of the then Chief Justice and
the Judges of the High Court to impress upon that the decision of the
Government of India conveyed vide letter dated 26.03.1982 in respect of
division of Delhi into five districts may be implemented at the earliest as
recommended by the Delhi High Court vide its letter dated 21.05.1979.
12. On 07.05.1990, the Union Law
Minister intimated the Delhi High Court of the decision of the Union Government
not to go ahead with any move towards bifurcation of Delhi into any smaller
judicial districts due to protest and prolonged agitation by 6 lawyers.
However, the letter also informed the High Court that it may after consultation
with the Bar Council of Delhi and various Bar Associations that have a stake in
the matter, send a proposal for division of Delhi into smaller districts, if
necessary, to the Government for reconsidering their decision.
13. By communication dated
31.01.1991 from the then Union Law Minister to the then Chief Justice, his
attention was drawn to the views expressed by the Lt.
Governor that Delhi be divided
into separate judicial districts.
14. On 12.04.1991, the Delhi High
Court informed the Union Law Minister, after a Full Court meeting on
06.04.1991, that they were of the opinion that no further consultation with the
Bar Associations was necessary and reiterated their stance on the division of
Delhi into five judicial districts and recommended that the same be done at the
earliest possible time as it has already been recommended by the High Court
vide letters dated 21.05.1979 and 09.04.1990.
15. In the meantime, the
Government of India sent a letter dated 17.10.1991 wherein it was suggested
that effective decentralization of the courts could be done through creating
independent courts in various parts of Delhi without actually constituting
separate districts. The High Court conveyed to the Union government its opinion
on the new proposal i.e., such dispersion of courts is an untenable proposition
and reiterated its earlier requests for division into judicial districts.
7
16. When the Government repeated
the proposal, the then Chief Justice of Delhi High Court sent a letter to the
Lt. Governor dated 07.12.1992 enclosing therewith the resolutions passed by the
Full Court dated 31.03.1990, 06.04.1991, 25.01.1992, 28.03.1992 and 02.12.1992
regarding the division of Delhi into five separate judicial districts. In the
letter, it was reiterated that the Delhi High Court has consistently been of
the view that the Union Territory of Delhi should be divided into five separate
judicial districts and insisted on issuance of the notification for dividing
Delhi into five separate judicial districts at the very earliest and if possible
by 31.12.1992. It was mentioned in the letter that the High Court is keen to
expedite the decentralization process of courts in Delhi.
17. Vide letter dated 06.07.1993,
the Union Government sought views of the Delhi Administration on division of
Delhi into nine districts along the lines of already existing police
headquarters and revenue district divisions. The same was forwarded to the
Delhi High Court by the Delhi Administration.
18. On 19.07.1993, the Delhi Bar
Association went on strike against the division of Delhi, and the Full Court
again considered the matter and it was decided to constitute a Committee
consisting of Chief Justice with four Judges of the High Court to look into the
problem and examine the matter in depth as a whole.
19. Vide letter dated 07.12.1993,
the Union Minister of Law enquired if the High Court of Delhi was amenable to
empowering Additional District Judges to discharge the functions of District
Judges in their respective areas. Shortly thereafter on 8 21.02.1994, the Union
Minister of State for Law requested for the views of the Delhi High Court on
the modalities for implementing the decision to bifurcate Delhi into five
district courts and other related matters. In response to all these letters, no
opinions were offered as the matter was sub judice in WP(C) No. 766 of 1994
filed by some lawyers seeking a mandamus for creation of the five judicial
districts.
20. On 26.02.1999, the first
meeting of the Committee constituted to work on the modalities for the creation
of nine judicial districts was held under the chairmanship of the Chief
Secretary of the National Capital Territory of Delhi. The Committee noted that
while appreciating the urgency of establishment of nine judicial districts, the
Chief Secretary desired that before the proposal is implemented in its right
perspective, the Registrar, High Court of Delhi and the District & Sessions
Judge, Delhi should also facilitate the Government while affording their
valuable views so far as the involvement of legal implications in the proposal
especially with regard to the amendment of relevant laws, rules and
regulations, etc. along with necessary details for minimum staff which would be
required to augment the new judicial set-up in the National Capital Territory
of Delhi. It was noted that the District & Sessions Judge and the
Registrar, High Court of Delhi had expressed some of their views in this regard
and assured the Committee to furnish the details at the earliest.
21. On 23.04.1999, again a meeting
of the Committee was held under the Chairmanship of the Chief Secretary in
pursuance of the order dated 13.4.1999 of the High Court of Delhi in WP(C) No.
4386 of 1998 (Indian Council of Indian Aid and 9 Advice vs. Government of NCT
of Delhi & Ors.). It was decided that the proposed nine judicial districts
should be located as follows:
Sl. Area District Courts No. of
Courts No.
----- --------------------------
------------------------ ----------------
-
Karkardooma East & North
East Two
-
Rohini North West One
-
Tis Hazari North and Central
Two
-
Saket South One
-
Raja Garden
West One
-
Dwarka South West One
-
Patiala House New Delhi One
22. On 31.08.1999, a meeting was
held at Raj Niwas between the Chief Justice of Delhi High Court and the Lt.
Governor of NCT of Delhi. The relevant portion of the Minutes of the meeting
read as under:
"First of all, the issues
relating to the division of Delhi into 5 Judicial Districts was briefly
discussed in the meeting. It was pointed out by the Chief Secretary that the
Hon'ble High Court of Delhi in the recent past, had reiterated the earlier view
of establishing only 5 Judicial Districts, while the Govt. of NCT of Delhi had
been of the opinion that nine Judicial Districts may be established in
consonance with the nine Police/Revenue Districts already functioning in the
city.
It was observed by the Hon'ble the
Chief Justice that as a long term planning, the High Court was also in
agreement in principle for establishment of nine Judicial Districts, but to
start with, it would be preferred that five Judicial Districts be established
and, in the meanwhile, expeditious efforts be made for the procurement of lands
and constructing court buildings in different parts of the city towards the
ultimate aim of nine Judicial Districts. ...".
The Minutes further noted that a
Committee headed by the Law Secretary would look into the aspect of various
amendments which may be required in different enactments in this regard and
that an exercise had earlier been undertaken by the High Court for the purpose
of consideration of bifurcation of districts and consequential amendments along
with draft notifications were prepared. It was decided that the draft
notifications and the report 10 prepared earlier to consider the bifurcation
would also be considered by the Committee and the recommendations of the
Committee shall be forwarded to the High Court within a period of 10-15 days.
23. The Committee submitted its
report on 03.04.2000 regarding division of Delhi into separate judicial
districts. The Committee recommended that the best course for the immediate
creation of nine judicial districts in the National Capital Territory of Delhi
would be to request the Lt. Governor of Delhi to initially divide the National
Capital Territory of Delhi into nine civil districts in terms of Section 19 of
the Punjab Courts Act, 1918 and only thereafter to initiate the process for
separate sessions divisions.
24. On 20.04.2000, this Court
while hearing WP(C) No.741 of 1989 (Delhi Judicial Service Association (Regd.)
vs. Union of India & Ors.) called for the above report dated 03.04.2000 of
the Committee and after perusing the same passed the following directions:
"Report as to the division of
Delhi into separate judicial Districts dated 3.4.2000 has been given to the Acting
Chief Justice, Delhi High Court. This report is prepared by a Committee of
officers of various ranks both under the High Court and of the Government of
NCT of Delhi.
Two copies of this report are
being given to Mr. Goburdhan. He may pass over this report to the Lt. Governor
and Chief Secretary and other officers concerned after making necessary copies.
Court buildings are to come up at
Rohini, Saket and Dwarka. Mr.
Goburdhan has filed status report
regarding finances and construction of buildings there.
We direct that a meeting be held
by the Acting Chief Justice, Delhi High Court, which shall be attended by the
Chief Secretary, Secretary (Law, Justice &
Legal Affairs), Divisional
Commissioner-cum-Secretary (Revenue), Chief Engineer (Civil), PWD, all of the
Government of NCT of Delhi and also by the 11 Additional Secretary, Department
of Justice in the Ministry of Law, Justice &
Company Affairs. All these
officers shall meet the Acting Chief Justice of the Delhi High Court in the
High Court premises on or before 26.4.2000, when all aspects of the matter
shall be discussed. A report be submitted to the Court by the Registrar of the
Delhi High Court as well as by Mr. Goburdhan, learned counsel appearing for NCT
of Delhi. Counsel for the parties shall intimate the respective officers with
regard to the meeting with the Acting Chief Justice of the Delhi High Court.
Registrar of the Delhi High Court shall also intimate the date and time to all
the officers. Report submitted to this court shall indicate the Division of
Courts, time schedule and when the vacancies are to be filled up.
These directions are issued
peremptorily and there shall be no excuse for not convening the meeting. List
the matter on 28.4.2000. Report shall be submitted by the counsel for the High
Court and by counsel for the NCT of Delhi and they shall be assisted by the
officers so as to answer all the queries."
25. Pursuant to the directions
issued by the Court, the Acting Chief Justice of Delhi High Court fixed a
meeting of the Full Court on 26.04.2000 to consider the matter.
The Full Court on 26.04.2000 held
its meeting and delved upon the agenda item : "To consider the matter
regarding division of Delhi into separate judicial districts. - Report of the
Committee dated 03.04.2000" and resolved that "Report of the
Committee dated 03.04.2000 regarding division of Delhi into separate judicial
districts, adopted.
Necessary follow up action be
taken."
26. On 01.05.2000, this Court by
its detailed order taking into consideration the report of the Committee dated
03.04.2000, the minutes of the meeting dated 25.04.2000 and that of Full Court
Meeting dated 26.04.2000 gave the following directions regarding division of
Delhi into separate districts for implementation of the scheme of division of
Delhi into separate judicial districts:
"1. Delhi High Court will
send a request to the Government of NCT of Delhi within 15 days from today for
the purpose of issuance of requisite notifications for implementation of the
scheme of division of Delhi into separate judicial districts.
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2. Government of NCT of Delhi will
then take necessary steps for issuing the notifications which shall be done on
or before 30.6.2000 on the basis of the requisition given by the High Court.
Within the period Government of NCT of Delhi and Central Government shall
further consider the report of the Committee, which has been accepted by the
High Court for creation of further posts in the Delhi Higher Judicial Service
and Delhi Judicial Service.
3. High Court thereafter will make
necessary appointments of the District Judges and other officers on the basis
of the report and issue necessary notifications within 15 days from 30.6.2000.
4. On 16.8.2000 five districts,
which would cover nine civil districts as per the report, shall start
functioning.
5. Again within 15 days from today
High Court will make recommendations to the Government of NCT of Delhi for
consequential amendments to the statements as may be required by reason of
creation of sessions divisions in Delhi.
6. Government of NCT of Delhi and
the Central Government shall then take decision on such recommendations for
amendment of the statutes. If it is found that for some reasons such amendments
cannot be made, reasons for such rejection shall be communicated to the High
Court within eight weeks of the receipt of such recommendations from the High
Court. If the amendments are approved and if the matter is being delayed, the
Central Government may consider the necessity for promulgation of an
ordinance/ordinances so that the recommendations can be given effect to
expeditiously. The Central Government as well as the Government of NCT of Delhi
will report to the High Court on a regular basis as to the steps taken in this
connection."
The Court also gave directions in
regard to construction of district court building for separate judicial
districts/sessions divisions and other aspects.
27. On 28.06.2000, a notification
was issued by the Lt. Governor of the National Capital Territory of Delhi in
exercise of the powers conferred by sub-section (1) of Section 19 of the Punjab
Courts Act, 1918 (Punjab Act 6 of 1918) as extended to the National Capital
Territory of Delhi, dividing the National Capital Territory of Delhi and
creating nine civil districts. The Notification dated 28.06.2000 reads as
under:
13 (TO BE PUBLISHED IN THE DELHI
GAZETTE PART IV - EXTRAORDINARY) GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF
DELHI (Law, Justice & Legislative Affairs Department) No.
F.6/10/2000-Judl./694-704. Dated the 28th June, 2000 NOTIFICATION No.
F.6/10/2000-Judl. - In exercise of the powers conferred by sub-section (1) of
Section 19 of the Punjab Courts Act, 1918 (Punjab Act 6 of 1918) as extended to
the National Capital Territory of Delhi and all other powers enabling him in
this regard, the Lt. Governor of the National Capital Territory of Delhi hereby
divides the National Capital Territory of Delhi and creates the following nine
Civil Districts, namely:- Sl.No. Name of the Civil District created
-
New Delhi
-
South
-
North
-
North-West
-
Central
-
East
-
North-East
-
West
-
South-West
The territorial limits of the above Civil Districts shall be co-terminus with
the existing nine Revenue Areas known as Revenue Districts.
This notification shall come into
force with effect from the 16th August, 2000.
By order and in the name of the
Lt. Governor of the National Capital Territory of Delhi, Sd/- (Anoop Kumar
Mendiratta) Joint Secretary (Law, Jus. & L.A.) Copy forwarded to:
14 xxx xxx xxx"
28. On 03.07.2000, the High Court
issued the notification fixing the places of the newly nine civil districts.
29. On 26.07.2000, the Delhi Bar
Association filed the instant petition [WP (C) No. 437 of 2000] under Article
32 of the Constitution of India in this Court challenging issuance of the
notification dated 28.06.2000 and prayed for the following directions:
"(a) quash and set aside the
impugned Notification i.e. Gazette Notification No.
108 dated 28.6.2000, issued by the
Government of National Capital Territory of Delhi;
(b) prohibit the respondents from
bifurcating Delhi into nine districts, as per the aforesaid notification;"
30. In WP(C) No. 451 of 2000 also
which has been filed by a litigant Som Nath under Article 32 of the
Constitution, a challenge has been made to the notification dated 28.06.2000.
31. We propose to dispose of WP(C)
No. 437 of 2000 and WP(C) No. 451 of 2000 by this common judgment, and delink
WP(C) No. 741 of 1989 - filed by Delhi Judicial Service Association - relating
to creation of additional posts in the Judicial 15 Service and send back TC(C)
No. 38 of 1996 - filed by the New Delhi Bar Association - relating to Patiala
House Complex, to Delhi High Court.
32. It is urged by Shri Arun
Jaitley, learned senior counsel appearing for the Delhi Bar Association that
there was no specific explicit administrative decision to divide Delhi into
nine judicial districts in order to create nine separate courts in the Union
Territory of Delhi and that at no point of time there was a consensual decision
taken by the Chief Justice of Delhi High Court and the Lt. Governor of Delhi
agreeing to have nine judicial districts. The subject of correspondence between
the Registrar, High Court of Delhi and the Secretary, Government of NCT of
Delhi was in fact in favour of division of Delhi into five judicial districts
and it is not clear as to when and how this figure of five was converted into a
figure of nine in the absence of consensual decision either by the High Court
or by the Government of NCT. Before arriving at such a decision, the
authorities concerned were required to apply their mind to certain salient
features before creation of judicial districts such as the interest of the
litigant and his convenience, adequate number of cases per Judge which could be
placed before the courts for adjudication, the future requirements, providing
comfortable and convenient accommodation to the Judges, transport/connectivity,
etc. From the material placed on record, it is obvious that such exercise has
not been done at all. It is further urged that in the absence of executive or
administrative order to bifurcate Delhi into nine judicial districts, this
Court by its order dated 1.5.2000 erroneously directed the High Court of Delhi
peremptorily to convene a meeting and fix a time schedule for bifurcation of
Delhi into nine judicial districts.
16
33. Countering the argument, it is
urged by Shri P.P. Rao, learned senior counsel appearing for the Delhi High
Court that it is not correct to say that no consensual decision to bifurcate
Delhi into nine judicial districts was taken by the authorities. The decision
taken by the authorities to create nine districts and issuance of the
notification to create nine districts has been arrived at after due
consideration of all relevant aspects.
Proposal in regard to bifurcation
and reorganization of courts had engaged the attention of the High Court, the
Government of India and the Delhi Government since 1979 and thereafter the
decision was taken.
34. It is urged by Shri D.N.
Goburdhun, learned counsel appearing on behalf of NCT of Delhi that the
decision taken for bifurcation of Delhi into nine districts was a policy
decision after elaborate consultation between the Chief Secretary, Hon'ble the
Law Minister and the Chief Justice of Delhi High Court. The Government is the
best judge to determine the choice of and to formulate policy. The policy
matters are best left for the executive/legislatures as normally it is in their
domain. The court would not interfere and strike down a policy matter which is
beneficial to the public at large. The policy decision which is in public
interest for the consumers of justice, who are paramount recipients of justice
delivery system, cannot be faulted with on the basis of some irregularities and
normally the policy decisions taken by the authorities after due deliberation
and taking into consideration all relevant aspects would not be subject to
judicial review. The matters of Government policy are best left to the
Government to decide. It was urged by him that the policy decision taken is the
result of prolonged threadbare discussion and application of mind to the
relevant aspects and is not open to challenge.
17
35. The arguments of Shri A.
Sharan, learned Additional Solicitor General are directed mainly towards challenge
to WP(C) No. 741 of 1989 under Article 32 of the Constitution. Since we are not
deciding this matter, we need not dwell upon submissions made by him in this
petition.
36. From the facts narrated
hereinabove, it appears to us that the Government of India, the High Court and
the Delhi Government were considering the reorganization of courts since 1979.
Vide communication dated 26.3.1982, the Government of India conveyed its
agreement to divide Delhi into separate districts. The High Court throughout has
been insisting on the division of Delhi into separate judicial districts. By
communication dated 31.1.1991 from the then Union Law Minister to the then
Chief Justice, his attention was drawn to the views expressed by the Lt.
Governor that Delhi be divided into separate judicial districts. On 6.7.1993,
the Government of India sought the views of the Chief Secretary, Delhi
Government on the division of Delhi into nine judicial districts. Before the
decision was taken, various details in this regard were considered at different
times. The Delhi Government has been consistently insisting on the division of
Delhi into nine judicial districts. In a meeting between the Chief Justice and
the Lt. Governor held on 31.08.1999, in principle it was agreed to divide Delhi
into nine judicial districts. A Committee was constituted to, inter alia, work
out the modalities and study and advise on the notifications that may be
required to be issued and the amendments that may be required in any Act and in
any existing notifications. The Committee submitted its report on 03.04.2000.
The entire matter was placed before the Full Court in its meeting held on
26.4.2000 and the Full Court after considering the relevant aspects and the
report of the Committee dated 03.04.2000 approved the 18 bifurcation of Delhi
into nine judicial districts and directed necessary follow-up action to be
taken as recommended by the Committee. The need of bifurcation has been
stressed upon and very succinctly dealt with in the order of this Court dated 01.05.2000
passed in WP(C) No. 741 of 1989 (Delhi Judicial Service Association (Regd.) v.
Union of India through the Secretary and Others, (2000) 9 SCC 562), when the
Court said in para 6 as under:
"Needless to say that the
working of courts at Tis Hazari and Patiala House (New Delhi Courts) with
reference to the accommodation for the Judges, litigant public, witnesses and
members of the Bar and supporting services like stamp vendors, etc. are almost
at the stage of collapse. A visit to these court complexes is an appalling
experience. Situation is alarming to say the least. Everyone realizes so.
Jammed court rooms, crowded and
dark corridors, overflowing toilets, insanitary conditions, it is almost
nauseating to visit these courts. There is certainly a limit up to which
services can be provided for all concerned. Tis Hazari Court Complex was built
in 1956 keeping in view at that time the quantum of litigation and population
of Delhi. Today Delhi of 1956 is not the same in the year 2000. With the
phenomenal rise in the quantum of litigation, new avenues of justice delivery
system, tremendous increase in number of courts and lawyers with the
corresponding increase in staff and office accommodation, Tis Hazari Court
Complex has practically ceased to be functional and the impasse will continue
until the burden is shifted to newly- constructed spacious court complexes with
modern facilities and conveniences. All this is necessary for efficient
administration of justice. In Patiala House Court Complex things are no better.
Patiala House was never built as a
court complex. Over three decades ago New Delhi Courts, which were functioning
at Parliament Street, were temporarily housed in Patiala House. No thought was
ever given thereafter to construct a proper court complex for New Delhi Courts.
Immediate and urgent steps are needed to spread out the courts all over Delhi.
In the absence of proper provisions for bifurcation of courts it is paradoxical
that while there are no courtrooms and space for other services in Tis Hazari
and Patiala House Court Complexes, over 40 rooms are lying vacant in
Karkardooma. The matter for bifurcation of courts in Delhi is pending for the
last many years but no steps were being taken for one reason or the other which
we need not now go into. It must, however, be understood that consumer of
justice is litigant for whom the courts are established.
When it comes to litigant, who is
consumer of justice, the need of the Judges and the lawyers takes a back
seat."
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37. From the aforesaid, it is
apparent that before the decision was taken, all authorities for arriving at
the policy decision were consulted and thus it cannot be said that the policy
decision taken by the Government was arbitrary or without consideration of the
relevant material.
38. In State of Maharashtra and
Another v. Lok Shikshan Sanstha and Others, (1971) 2 SCC 410, the petitioner
moved an application for opening a new school which was rejected by the
authority. The rejection was challenged by the petitioner by filing a writ petition
in the High Court. The High Court allowed the petition and directed the
authorities to grant permission to the petitioner to start school. Reversing
the judgment, this Court said :
"9. ... So long as there is
no violation of any fundamental rights and if the principles of natural justice
are not offended, it was not for the High Court to lay down the policy that
should be adopted by the educational authorities in the matter of granting
permission for starting schools. The question of policy is essentially for the
State and such policy will depend upon an overall assessment and summary of the
requirements of residents of a particular locality and other categories of
persons for whom it is essential to provide facilities for education. If the
overall assessment is arrived at after a proper classification on a reasonable
basis, it is not for the courts to interfere with the policy leading up to such
assessment."
In M.P. Oil Extraction and Another
v. State of M.P. and Others, (1997) 7 SCC 592, this Court said that unless a
policy decision is absolutely capricious, unreasonable and arbitrary and based
on mere ipsi dixit of the executive authority or is violative of any
constitutional or statutory mandate, court's interference is not called for.
The executive authority of the State must be held to be within its competence
to frame a policy for the 20 administration of the State. Policy decision is in
the domain of the executive authority of the State and the court should not
embark on the adequacy of public policy and should not question the efficacy or
otherwise of such policy so long it falls within the constitutional limitations
and does not offend any provision of the statute.
In Ugar Sugar Works Ltd. v. Delhi
Administration and Others, (2001) 3 SCC 635, a challenge was made to the
executive policy regulating trade in liquor in Delhi. This Court held that it
is well settled that the courts, in exercise of their power of judicial review,
do not ordinarily interfere with the policy decisions unless such policy framed
could be faulted on the grounds of mala fide, unreasonableness, arbitrariness,
unfairness, etc. However, if the policy cannot be faulted on any of these
grounds, the mere fact that it would hurt business interests of a party, does
not justify invalidating the policy. The courts are not expected to express
their opinion as to whether at a particular point of time or in a particular
situation any such policy should have been adopted or not. It is best left to
the discretion of the State.
In Dhampur Sugar (Kashipur) Ltd.
v. State of Uttaranchal and Others, (2007) 8 SCC 418, the petitioner company
owned a factory in the State of Uttaranchal. The company was engaged in the
manufacture, sale and supply of sugar. One IGL submitted an application for grant
of a licence for power-driven crusher for manufacturing rab from sugarcane. The
application was rejected as per the licensing policy of the Government
whereunder a new licence to khandsari unit could not be granted in the reserved
area of the existing sugar mills. However, the State Government modified its
earlier sugar policy and the Government was empowered to relax the limitation
in certain cases. When new 21 policy came into force, the IGL unit submitted a
fresh application for grant of licence.
The said application was allowed
by the licensing authority observing that the new unit would not adversely
affect adequate and sufficient supplies of sugarcane to the sugar mills in the
reserved area and thus relaxation under the policy can be given. While
considering the policy decision, this Court observed that "a court of law
is not expected to propel into 'the unchartered ocean' of government policies.
Once it is held that the Government has power to frame and reframe, change and
rechange, adjust and readjust policy, the said action cannot be declared
illegal, arbitrary or ultra vires the provisions of the Constitution only on
the ground that the earlier policy had been given up, changed or not adhered
to. It also cannot be attacked on the plea that the earlier policy was better
and suited to the prevailing situation."
39. From the aforesaid decisions
of this Court, it is apparent that the policy decision taken by the Government
cannot be faulted with unless it suffers from unreasonableness, arbitrariness
or unfairness or it is beyond the legislative powers of the State or is beyond
the constitutional limits. In the present case, not only the policy decision
taken by the NCT of Delhi is founded on prolonged and in-depth deliberation
between the NCT of Delhi, the Lt. Governor and the Delhi High Court which is
directly concerned with the division of Delhi into judicial districts, but is
also a result of directions issued by this Court by its order dated 01.05.2000.
40. It is further urged by Shri
Arun Jaitley, learned senior counsel appearing for the Delhi Bar Association
that the direction issued by this Court on 1.5.2000 requesting the High Court
of Delhi peremptorily to convene a meeting and fix a time 22 schedule for
bifurcation of Delhi into nine judicial districts, was erroneous. It is
contended that the Court while giving such direction had exceeded its power by
acting as an advisory to the Delhi Government in WP(C) No. 741 of 1989 and
directing the Delhi Government to issue a notification what is supposedly an
essential legislative function. It is urged that this Court has acted as an
advisory and directed the Delhi Government to perform an act which is otherwise
a policy consideration. In All India Judges' Association v. Union of India and
Others, (1992) 1 SCC 119, this Court had directed the Union of India to take
appropriate measures in regard to uniformity in pay scales, age of retirement,
amenities and facilities to judicial officers, conveyance and so on. Some State
Governments had sought review of the directions on considerations of policy and
contended that the directions given by the Court in the matters which also fall
under the policy decisions of the State, do amount to by-passing the
constitutionally permissible modes and amount to usurpation of the essential
functions of the legislature or executive.
This Court while disposing of
review petitions vide order dated 24.08.1993 reported in (1993) 4 SCC 288 (All
India Judges' Association and Others v. Union of India and Others), has held in
paras 14 and 15 as under:
"14. ... By giving the
directions in question, this Court has only called upon the executive and the
legislature to implement their imperative duties. The courts do issue
directions to the authorities to perform their obligatory duties whenever there
is a failure on their part to discharge them. The power to issue such mandates
in proper cases belongs to the courts. ... The further directions given,
therefore, should not be looked upon as an encroachment on the powers of the
executive and the legislature .... They are directions to perform the along
overdue obligatory duties.
23
15. The contention that the
directions of this Court supplant and bypass the constitutionally permissible
modes for change in the law, we thinks, wears thin if the true nature and
character of the directions are realised. ... The directions issued are mere
aids and incidental to and supplemental of the main direction and intended as a
transitional measure till a comprehensive national policy is evolved.
These directions, to the extent
they go, are both reasonable and necessary."
In the third round of litigation,
after the report of Justice Shetty Commission, this Court again made certain
directions relating to the working conditions of the members of the subordinate
judiciary throughout the country, reported in (2002) 4 SCC 247.
41. Thus, we are of the view that
by giving directions by its order dated 01.05.2000, this Court did not exceed
its jurisdiction and did not encroach upon the essentially executive or
legislative function of different authorities.
42. Shri Ranjit Kumar, learned
senior counsel appearing for the petitioner in WP(C) No. 451 of 2000, has
challenged the propriety, competence and validity of notification dated
28.06.2000 issued by the Lt. Governor under Section 19 of the Punjab Courts
Act, 1918. It is submitted that Delhi is not a State but a Union Territory
under Schedule I of the Constitution of India and that the definition of `State
Government' not being provided under the Punjab Courts Act the same should be
taken from the General Clauses Act, 1897. The definition of `State Government'
applicable in Delhi is the definition under the Bengal General Clauses Act,
1899 which has been extended to the State of Delhi by SRO 862 issued by the Central
Government in exercise of powers conferred upon it under Section 2 of Part C
States (Law) Act, 1950 and, therefore, the 24 notification issued by the Lt.
Governor appointed as an administrator under Article 239 representing the
National Capital Territory of Delhi was without jurisdiction. The notification
should have been issued by the competent authority of the Union of India.
43. It is the contention of Shri
P.P. Rao, learned senior counsel appearing for the Delhi High Court that the
notification issued by the Lt. Governor is in accordance with law and there was
no lack of competence in the Lt. Governor to issue the notification after the
introduction of Article 239AA in the Constitution. The notification has been
issued under Section 19 of the Punjab Courts Act, 1918. Section 19 of the
Punjab Courts Act, 1918, reads as under:
"19. Civil Districts (1) For
the purposes of this Part the State Government shall divide the territories
under its administration into civil districts.
(2) The State Government may alter
the limits or the number of these districts."
44. The Punjab Courts Act does not
define as to who shall be the State Government. The Bengal General Clauses Act,
1899 refers to the General Clauses Act, 1897. Section 5a of the Bengal General
Clauses Act, 1899 reads as under:
"5a. Application of certain
definitions in Section 8 of Act 10 of 1897 to all Bengal & West Bengal
Acts. - The definitions in section 3 of the General Clauses Act, 1897 of the
expression "British India", "Central Act", "Central
Government", "Chief Controlling Revenue Authority", "Chief
Revenue Authority", "Constitution", "Gazette",
"Government", "Government securities", "High
Court", "India", "Indian Law", "Indian
State", "merged territories", 25 "Official Gazette",
"Part A State", "Part B State", "Part C State",
"Province", "Provincial Act", "Provincial
Government", "State", "State Act" and "State
Government" shall apply also unless there is anything repugnant in the
subject or context to all Bengal and West Bengal Acts as extended to
Delhi."
By virtue of Section 5a of the
Bengal General Clauses Act, 1899, the definition of `State Government', that is
applicable to the State of Delhi, is the definition under the General Clauses
Act, 1897. The definition of `State Government' under the General Clauses Act,
1897 is as follows:
"3.
Definitions. - In this Act, and in all Central Acts and Regulations made after
the commencement of this Act, unless there is anything repugnant in the subject
or context, -- xxx xxx xxx (60) "State Government", --
-
as respects
anything done before the commencement of the Constitution, shall mean, in a Part
A State, the Provincial Government of the corresponding Province, in a Part B
State, the authority or person authorized at relevant date to exercise executive
government in the corresponding Acceding State, and in a Part C State, the
Central Government;
-
as respects anything done
after the commencement of the Constitution and before the commencement of the
Constitution (Seventh Amendment) Act, 1956, shall mean in a Part A State, the
Governor, in a Part B State, the Rajpramukh, and in a Part C State, the Central
Government;
-
as respects
anything done or to be done after the commencement of the Constitution (Seventh
Amendment) Act, 1956, shall mean, in a State, the Governor, and in a Union
Territory, the Central Government;
and shall, in relation to
functions entrusted under Article 258A of the Constitution to the Government of
India, include the Central Government acting within the scope of the authority
given to it under that Article;"
26 It is submitted on behalf of
the petitioners that based on the above definition, the authority that acts as
the State Government in a Union Territory is the Central Government and not the
Lt. Governor.
45. Delhi is a Union Territory and
after introduction of Article 239AA in the Constitution, the Union Territory of
Delhi is called the National Capital Territory of Delhi. Every Union Territory
is administered by the President acting to such extent as it thinks fit through
an Administrator to be appointed by him. The Lt. Governor has been appointed as
an Administrator to administer the National Capital Territory of Delhi.
Under this Article, it has been
provided that there shall be a Legislative Assembly for the National Capital
Territory. After the introduction of this Article, the National Capital
Territory of Delhi has been administered by the President through the
Administrator appointed under Article 239. Thus, the Lt. Governor is the
Administrator for the National Capital Territory of Delhi and shall be
representing and authorized to act for and on behalf of the National Capital
Territory of Delhi. After the introduction of this Article, the Bengal General
Clauses Act, 1899 would not have any application as the Punjab Courts Act, 1918
has been made applicable to the National Capital Territory of Delhi. Thus, the
State in Section 19 of the Punjab Courts Act shall be read as the National
Capital Territory of Delhi which is represented and administered by the Lt.
Governor who has been empowered to
issue a notification on behalf of the National Capital Territory of Delhi to
divide the territory under his administration into civil districts. The Lt.
Governor of Delhi being the representative of the National Capital Territory of
Delhi was competent to divide the territory of Delhi under his administration
into civil districts.
27
46. It is further urged by Shri
Ranjit Kumar, the learned senior counsel that after the introduction of Article
239AA by the Sixty-ninth Amendment Act, 1991 w.e.f.
01.02.1992 in the Constitution,
the person authorized to make any law or regulation in relation to
administration of justice is the Legislative Assembly of Delhi and not the Lt.
Governor. It is urged that under
Article 239AA(3)(a), power to make laws or rules or regulations with respect to
any of the matters enumerated in the State List or in the Concurrent List under
Schedule VII of the Constitution is with the Legislative Assembly 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. Relevant portion of Article 239 and 239AA is as under:
"239. Administration of Union
territories.-- (1) Save as otherwise provided by the Parliament by law, every
Union territory shall be administered by the President acting, to such extent
as he thinks fit, through an administrator to be appointed by him with such
designation as he may specify.
xxx xxx xxx 239AA. Special
provisions with respect to Delhi.-- (1) As from the date of commencement of the
Constitution (Sixty-ninth Amendment) Act, 1991, the Union territory of Delhi
shall be called the National Capital Territory of Delhi (hereafter in this Part
referred to as the National Capital Territory) and the administrator thereof
appointed under article 239 shall be designated as the Lieutenant Governor.
xxx xxx xxx (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.
xxx xxx xxx 28 (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."
From the commencement of Article
239AA, the Legislative Assembly of the National Capital Territory of Delhi has
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 under the Constitution of India in so far as 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 Entries 1, 2 and 18. Thus, the Legislative Assembly of the National Capital
Territory has authority to make laws in regard to the Entries in the State List
or in the Concurrent List except Entries 1, 2 and 18 and the matters enumerated
in Entries 64, 65 and 66 so far as they relate to the said Entries. Under
clause (4) of Article 239AA, there shall be a Council of Ministers with the
Chief Minister at the head who shall aid and advise the Lieutenant Governor to
exercise his functions in relation to matters which fall within the ambit of
the Legislative Assembly to make laws except the functions which are required
to be undertaken under any law by the Lt. Governor exercising his own
discretion.
29
47. Administration of justice and
constitution of courts is provided under Entry 11A of the Concurrent List and
this is a matter also under the jurisdiction of the Legislative Assembly upon
which the Assembly is competent to make laws. Entry 11A of the Concurrent List
reads as under:
"Administration of Justice;
constitution and organization of all courts except the Supreme Court and the
High Courts."
Further, it has been submitted
that under the Government of National Capital Territory of Delhi Act, 1991, the
discretionary powers of the Lt. Governor are clearly enumerated and these
discretionary powers specifically exclude those matters that fall within the
jurisdiction of the Legislative Assembly. It is contended that in the instant
case the subject matter of the notification, i.e. the organization of courts is
within the jurisdiction of the Legislative Assembly and therefore does not fall
within the purview of the discretionary powers of the Lt. Governor. Section 41
of the Government of National Capital Territory of Delhi Act, 1991, reads as
under:
"41. Matters in which
Lieutenant Governor to act in his discretion. - (1) The Lieutenant Governor
shall act in his discretion in a matter-- (i) which falls outside the purview
of the powers conferred on the Legislative Assembly but in respect of which
powers or functions are entrusted or delegated to him by the President; or (ii)
in which he is required by or under any law to act in his discretion or to
exercise any judicial or quasi-judicial functions.
(2) If any question arises as to
whether any matter is or is not a matter as respects which the Lieutenant
Governor is by or under any law required to act in his discretion, the decision
of the Lieutenant Governor thereon shall be final.
30 (3) If any question arises as
to whether any matter is or is not a matter as respects which the Lieutenant
Governor is required by any law to exercise any judicial or quasi-judicial
functions, the decision of the Lieutenant Governor thereon shall be
final."
For these reasons, it is submitted
that the impugned notification dated 28.06.2000 has been improperly and
invalidly issued by an authority having no competence and is, therefore, non
est in law and any action taken in furtherance of the notification issued is
also null and void.
48. To counter this argument, it
is urged by Shri P.P. Rao, learned senior counsel appearing for the Delhi High
Court, that the introduction of the Government of National Capital Territory of
Delhi Act, 1991 does not in any way affect the operation of the Punjab Courts
Act, 1918; that the operation of the Punjab Courts Acts, 1918 was extended to
Delhi; that the operation of Article 239AA does not hinder the operation of the
Punjab Courts Act; and that the Punjab Courts Act being in operation in Delhi,
the notification for organization of civil courts is in consonance and under
the authority of Section 19 of the Punjab Courts Act, 1918. It is further
submitted that there is no requirement under the Punjab Courts Act, which has
provisions relating to the organization of civil courts, to place the
notification issued by the Lt. Governor before the State Legislative Assembly.
49. The Delhi Legislative Assembly
by virtue of Article 239AA(3)(a) and the Seventh Schedule of the Constitution
has been vested with the power to make laws on all 31 matters contained in the
entries of the State List and Concurrent List. Therefore, the Delhi Legislative
Assembly has the power to make laws with respect to Entry 11A of the Concurrent
List. The phrase "administration of justice" has been interpreted and
given meaning in The State of Bombay v. Narottamdas Jethabhai and Another, AIR
1951 SC 69 (para 5), as necessarily including the power to try suits and
proceedings of a civil as well as criminal nature, irrespective of who the
parties to the suit or proceedings or what its subject-matter may be. This
power must necessarily include the power of defining, enlarging, altering,
amending and diminishing the jurisdiction of the Courts and defining their
jurisdiction territorially and pecuniarily.
50. In the instant case the
notification has been issued by the Lt. Governor.
The notification clearly specifies
that in exercise of the powers conferred under sub- section (1) of Section 19
of the Punjab Courts Act, 1918, as extended to the National Capital Territory
of Delhi, the National Capital Territory of Delhi has been divided and nine
civil districts, mentioned therein, have been created. A plain reading of the
notification makes it absolutely clear that the import of the notification is
to divide the National Capital Territory of Delhi into nine civil districts.
The notification neither defines, enlarges, alters, amends or diminishes the
jurisdiction of the courts which are in existence nor has impinged upon the
existing courts' territory or pecuniary jurisdiction.
The notification simply divides
Delhi into nine civil districts. Therefore, the notification merely deals with
and is confined to geographical division of the district boundaries and nowhere
deals with jurisdiction of the courts or defines the courts' jurisdiction
territorially or pecuniarily. The impugned notification issued by the Lt.
Governor dated 28.06.2000 covers the subject, namely, division of the territory
of U.T. of Delhi under his 32 administration into civil districts. The impugned
notification does not cover the subject under Entry 11A of the Concurrent List,
namely, administration of justice, constitution and organization of all courts
except the Supreme Court and the High Court. The powers exercised by the Lt.
Governor are referable to Section 19 of the Punjab Courts Act, 1918.
The impugned notification would
fall under the discretionary powers of the Lt. Governor under Section 41 of the Government
of National Capital Territory of Delhi Act, 1991 which provides that he
shall act in his discretion in a matter outside the purview of the powers
conferred on the Legislative Assembly but in respect of which powers or
functions are entrusted to him or delegated to him by the President or when he
is required under any law to act in his discretion.
51. The enforcement of the
Government of National Capital Territory of Delhi Act, 1991 from 01.02.1992
does not hinder the continuing application of the Punjab Courts Act, 1918 to
Delhi. The notification issued on 28.6.2000 itself mentions that the Punjab
Courts Act, 1918, is being extended to the National Capital Territory of Delhi
and none of the parties to the present petition have denied this position. The
Punjab Courts Act, 1918 has been extended to the National Capital Territory of
Delhi and there is no notification, order or legislation brought to our notice
whereby application of the Punjab Courts Act, 1918 to the National Capital Territory
of Delhi has been repealed or curtailed.
Therefore, in the absence of any
provision in the Government of National Capital Territory of Delhi Act or in
the absence of any other notification, order or legislation, the Punjab Courts
Act, 1918, has continuous application to Delhi along with the laws made by the
Delhi Legislative Assembly. Further, the Delhi High Court
Act, 1966 is an enactment by Parliament whereunder from 31.10.1966 the High
Court has been 33 established for the U.T. of Delhi which has been referred to
as High Court of Delhi. The territorial jurisdiction of the High Court includes
the territory of U.T. of Delhi. All original, appellate and other jurisdictions
which had been exercised in regard to this territory by the High Court of
Punjab shall be exercised by the High Court of Delhi. The Punjab Courts Act,
1918, though only extended to Delhi, has the status of a central legislation
directly enacted for Delhi. When a provincial Act or an Act which may be
treated as a provincial Act was extended to the territory by a legislature, it
would be deemed to be the enactment of such legislature. This principle has
been clearly recognised by this Court in the case of Mithan Lal etc. v. State
of Delhi, AIR 1958 SC 682. It is, thus, clear that on the extension of the
Punjab Courts Act, 1918, to the U.T. of Delhi, it becomes a Central Act or an
Act of Parliament as it is made by virtue of powers of Parliament to legislate
for the U.T. of Delhi by virtue of clause (4) of Article 246 of the
Constitution of India. Therefore, the Punjab Courts Act, 1918 assumes the
position of central legislation enacted specifically for Delhi and is the law
operative in the NCT of Delhi. Hence, the notification issued by the Lt.
Governor under Section 19 of the Punjab Courts Act, 1918 has been authorized by
a central legislation. Further, any legislation passed by the State Legislative
Assembly is always subordinate to the laws of Parliament. Article 239AA(3)(b)&(c)
limits the power of the State Legislature which reads as under :- "(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 34 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:"
Therefore, from the aforesaid
constitutional provisions, it is clear that in the NCT of Delhi the laws made
by the Delhi Legislative Assembly are always subordinate to the laws of
Parliament whether prior or post in time. This has been reiterated by a
Constitution Bench of nine Judges of this Court in New Delhi Municipal Council
v.
State of Punjab and Others, (1997)
7 SCC 339, wherein the Court held that Delhi Legislative Assembly is inferior
to Parliament in hierarchy. The 9-Judge Bench in para 136 at page 402 has held
as under:
"By the Constitution
Sixty-Ninth (Amendment) Act, 1991, Article 239- AA was introduced in Part VIII
of the Constitution. This article renamed the Union Territory of Delhi as the
"National Capital Territory of Delhi" and provided that there shall
be a Legislative Assembly for such National Capital Territory.
The Legislative Assembly so
created was empowered by clause (3) of the said article "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 insofar 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
insofar as they relate to the said Entries 1, 2 and 18".
Clause (3) further provided that
the power conferred upon the Legislative Assembly of Delhi by the said article
shall not derogate from the powers of Parliament "to make laws with
respect to any matter for a Union Territory or any part thereof". It
further provided that in the case of repugnancy, the law made by Parliament
shall prevail, whether the parliamentary law is earlier or later to the law
made by the Delhi Legislative Assembly. Parliament is also empowered to amend,
vary or repeal any law made by the Legislative Assembly. Article 239- 35 AA
came into force with effect from 1.2.1992. Pursuant to the article, Parliament
enacted the Government
of National Capital Territory of Delhi Act, 1991. It is not only provided
for constitution of a Legislative Assembly but also its powers as contemplated
by Article 239-AA. This Act too came into force on 1.2.1992. The subordinate
status of the Delhi Legislature is too obvious to merit any emphasis."
52. The power to legislate to the
Legislative Assembly of Delhi shall not supersede the powers of Parliament to
make laws with respect to any matter for Union Territory or any part thereof. If any provision 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 such earlier law shall prevail and the law made by the
Legislative Assembly shall, to the extent of repugnancy, be void. The Punjab
Courts Act, 1918, being the central legislation, will have the primacy over any
legislation made by the Delhi Legislative Assembly on the subject and even if
the Delhi Legislative Assembly has a power to make law on the subject which is
covered under the impugned notification, Section 19 of the Punjab Courts Act,
1918 shall prevail on the subject and a notification issued thereunder shall
not be invalidated merely because the subject matter also falls within the
Concurrent List.
53. For the reasons aforesaid, we
are of the view that the notification issued by the Lt. Governor dividing Delhi into nine civil
districts was validly issued and as a consequence thereof, WP (C) No. 437 of
2000 and WP (C) No.451 of 2000 are dismissed.
36
54. WP(C) No. 741 of 1989 is de-linked
and TC(C) No. 38 of 1996 is sent back to Delhi High Court to decide it on its
own merits.
..................................J.
(B.N. AGRAWAL)
..................................J.
(P.P. NAOLEKAR)
...............................
....J.
(D.K. JAIN) New Delhi;
May 15, 2008.
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