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The Centre on Monday told the Supreme Court that it has filed a fresh plea seeking reference to a larger bench of nine or more judges a matter involving a constitutional issue related to the control of services in the national capital.
The Delhi government, represented by senior advocate A M Singhvi, opposed the Centre's plea before a bench comprising Chief Justice of India D Y Chandrachud and Justice P S Narasimha, saying, "this will only create delay and such tactics cannot be allowed".
Solicitor General Tushar Mehta, appearing for the Centre, said at the outset "there are no facts to be controverted. But, I have filed an IA (interim application) stating that this matter (Delhi-Centre case) may have to be referred to a larger bench".
Singhvi opposed the submission, saying it amounted to seeking a review of the apex court order which had said the matter did not require reference to a larger bench and the only issue remaining between the parties was the dispute pertaining to control over services in Delhi.
"What action has to be taken on IA can be decided when the Constitution bench assembles to hear it," the CJI said, adding that it can be raised at the time of hearing.
The CJI also informed the lawyers that one of the judges of the five-judge Constitution Bench, Justice Krishna Murari, was unwell, indicating that the proposed hearing on December 6 may get postponed.
The application filed by the Centre said that it is seeking reference of appeal to a larger bench of this court for a holistic interpretation of Article 239AA of the Constitution, which is Central to the determination of issues involved herein.
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It is submitted that the issue pertains to the administration of the India's capital and, therefore can doubtlessly be said to be a question of constitutional interpretation as narrated in detail hereunder, the Constitution Bench could not be assisted on some of the vital issues going to the root of the matter as a result of which a judicial interpretation is given which may defeat the very object and intent of special provisions made for national capital territory of Delhi, it said.
The Centre's application said that the top court has a very wide jurisdiction and no technicality comes in the way of this court doing substantial justice between the parties more particularly when the party on the one side is Union of India and the issue involved concerns administration of its national capital.
The Centre said, It is submitted that the judgement of the Constitution Bench (2018 verdict) has given rise to an anomaly wherein though the Parliament undeniably enjoys the legislative supremacy, yet the council of ministers of GNCTD would now enjoy the executive supremacy, which effectively means that as regards the executive powers, Delhi despite being a Union territory and not a full fledged state, has been elevated to the status of a State, which is in teeth of the nine-judge bench verdict (1997 judgement).
Giving the background of Delhi, while seeking reference of the matter to larger bench, the application said that Delhi has been the capital of India after its establishment by the British as capital in 1911 and both in pre-constitutional era and post-constitutional era, the attempt has been given the capital of the nation a unique status and retain the control of the Centre in all legislative and executive functioning.
In view of Article 239AA read with the Government of National Capital Territory of Delhi Act, 1991, Delhi continues to be Union territory, however with a legislature. This fact is also recognized and held by a bench of nine judges of this court in NDMC versus state of Punjab (1997 verdict), it said.
It added that the scheme of governance introduced by the 69th Amendment Act and Government of NCT of Delhi Act remained virtually unchanged from the year 1993 until 2015, despite the fact that at various junctures during this period different political parties continued to cooperate for the governance of NCT of Delhi, balancing the interest of popular representation with maintaining the integrity of the seat of the Union government.
Only after the initiation of the present litigation before the Delhi High Court was this position of equilibrium altered by way of judicial intervention, the details of which are given, it said, adding that it is seeking further reference of the matter to a larger bench having a coram, equivalent to or larger than the bench that rendered the decision in 1997 in NDMC versus state of Punjab.
It said that the interpretation of Article 239AA based upon the principle of representative governance, misses a very fundamental fact.
The question is not one of the representative governance at all. The question is the choice between the one representative government namely Union government or another representative government namely government of UT, it said.
On September 27, the top court said a Constitution Bench headed by Justice D Y Chandrachud (now the CJI) would commence hearing the matter from November 9 on a day-to-day basis.
The other members of the five-judge bench are justices M R Shah, Krishna Murari, Hima Kohli and P S Narasimha.
On May 6, the top court had referred the issue of control of services in Delhi to the Constitution Bench.
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