New Delhi: The Supreme Court today refused to entertain a Delhi government plea that the high court be asked to first decide the preliminary issue as to whether it has the jurisdiction over disputes between the Centre and the state or is it “exclusively” triable by the top court.
The top court also asked the Delhi government, which had moved the high court seeking judgment on a scope of its powers under Article 239 AA of the Constitution, to approach it only after the Delhi High Court decides all the issues including the preliminary issue as to whether it has the jurisdiction over the dispute.
A bench of Justices Dipak Misra and UU Lalit said when the high court has heard the matter and reserved the judgement on all the issues including the preliminary issue of jurisdiction, it will be open to the Delhi government to approach it after the high court verdict on the entire issue.
Disposing off the AAP government’s appeal, the bench said the high court was a “constitutional court” and had the power to decide and interpret constitutional matters like this.
Senior advocate Indira Jaising, appearing for Delhi government, referred to constitutional provisions dealing with the powers of Delhi as a union territory.
“Delhi has an elected and responsible government and judgment of this court applies in this case that the Lt Governor has to run the administration on the aid and advice of the Chief Minister and Council of ministers,” Ms Jaising said, adding that this dispute was exclusively triable by the top court.
“Tell me why you (Delhi government) knocked the door of the Delhi High Court first. You knocked the doors of the Delhi High Court under Article 226. Now High Court has reserved the judgment and every court has the power to determine its jurisdiction. Whether it is adjudicable under Article 226 or under Article 131, the High Court can very well decide the jurisdiction,” the bench said.
Ms Jaising in her brief arguments said the high court has no power to decide the dispute of this nature between the Centre and the state and hence it be asked to decide the jurisdictional aspect as the preliminary issue.
The Supreme Court then asked the senior lawyer as to why the Delhi government did not withdraw its plea from the high court.
However, the top court agreed with the submission of the Delhi government that the dispute of the Constitutional nature between two federal entities should be decided expeditiously.
“You have come with the Special Leave Petition (SLP) in the matter when the High Court has already reserved the judgment,” the bench said, adding that high court is entitled to its views on Constitutional matters as they are “independent”.
“Had it been a (civil) suit or a writ petition, we will have issued notice instantly. What order can we pass today in this case. Why should we tell the high court that decide this issue or don’t decide it on merits”, the bench said.
Attorney General Mukul Rohatgi, appearing for the Centre, referred to an earlier order of the top court asking the Delhi High Court to finalise the matter by the end of July this year.
“High court had reserved the verdict pursuant to Supreme Court’s order. This is a misconceived SLP,” Mr Rohatgi said.
The bench also said “constitutional issues cannot be compromised. Once the matter is pending in the high court, then it shall decide the issue rightly or wrongly.”
Delhi government’s plea was listed for today’s bench as two judges of the top court — JS Khehar and L Nageshwar Rao had earlier recused from hearing it.
In its plea, Delhi government, has sought a declaration of its power and to restrain the high court from delivering the verdict on host of issues including the scope of its powers.
On July 4, the Arvind Kejriwal government had made unsuccessful efforts to ensure that its lawsuit for declaration of powers of Delhi as a state be heard along with its plea to restrain Delhi High Court from delivering verdict on a host of issues, including the scope of its powers.
Prior to this, the court had agreed to hear the Delhi government’s plea.
In its plea, Delhi government has claimed that only the top court had jurisdiction under the Constitution to deal with issues relating to the powers of States and Centre.
It has been alleged by the AAP government that it has been unable to function as most of its decisions are either annulled or changed by the Centre at the behest of Lieutenant Governor (LG) Najeeb Jung on the ground that Delhi is not a complete state.
In its appeal, the city government alleged that its power to do public services in the state has been adversely affected. It also raised a question as to whether the Union of India can take over all powers of the state government.
There is an ongoing power tussle between Delhi government and LG on various issues including the control over Anti-Corruption Branch and power to transfer or retain bureaucrats.
The high court had on May 24 reserved its verdict on the plea of AAP government seeking a stay on the proceedings on petitions arising out of its standoff with the LG over powers to appoint bureaucrats in the national capital and other issues.
The AAP government had sought a stay on proceedings on the ground that the issues involve a dispute of “federal nature” between the Centre and Delhi government and the Supreme Court had exclusive jurisdiction to deal with them.
A total of 11 cases arising out of the confrontation between the LG and Delhi government are being heard together by the high court.
Delhi government had on May 28 last year approached the high court challenging the Centre’s notification of May 21, 2015, giving the LG absolute powers to appoint bureaucrats in the city.