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."
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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.
