Supreme Court judge, Justice L Nageswara Rao, today recused himself from hearing Delhi government's appeals against the High Court verdict which held that Lieutenant Governor was the administrative head whose prior consent is needed in all administrative decisions.
Justice Rao, who was part of the bench headed by Justice A K Sikri, said he cannot hear the case and posted the matter for further hearing on November 25.
Senior advocate Gopal Subramaniam, appearing for Delhi government, said an application has been filed challenging the LG's decision to scrap the appointment of lawyers for the AAP government.
He said this application should be listed urgently as the government was facing difficulties in the court.
Attorney General Mukul Rohatgi said this matter will come under the pending appeals, as the decision of the Delhi High Court allowing the AAP Government to appoint prosecutors is also under challenge.
The bench, however, said that all interim applications will be take up together.
On September 9, the apex court had refused to grant an interim stay on the Delhi High Court's August 4 verdict and sought response within six weeks from the Centre on seven appeals of AAP dispensation.
It had also declined to stay the decision of LG Najeeb Jung to set up a three-member committee to scrutinise over 400 files and past orders of the elected city government.
The court had said it was an important issue where a decision from the apex court was needed.
Earlier, the Delhi Government had sought an urgent hearing on the appeals after which it was fixed for today.
On September 2, the Delhi government had informed Supreme Court that it had filed seven different pleas challenging the Delhi HC order and withdrawn its civil suit seeking declaration of the national capital as a full State.
The high court had on August 4 held that Delhi will continue to remain a Union Territory under the Constitution with the LG as its administrative head.
It had also held that the special constitutional provision Article 239AA dealing with Delhi does not "dilute" the effect of Article 239 which relates to Union Territory and hence, concurrence of the LG in administrative issues was "mandatory".
The Delhi government had on February 2 told the apex court
that it has exclusive executive powers in relation to matters falling within the purview of the Legislative Assembly and neither the Centre nor the President or the LG can encroach upon these.
The apex court, however, had said that it is correct that the elected government should have some powers but whether it will be as per the Delhi High Court verdict or as it is being perceived by the Delhi government needed to be looked into.
The city government had told the bench that the Government of National Capital Territory of Delhi (GNCTD), except for public order, land and police, possesses exclusive powers in relation to all other entries in state and concurrent lists and neither the central government nor the President or the LG has any role or power with regard to all other matters.
"We are seeking only the special status as contemplated under Article 239AA of the Constitution. It's a narrow issue but requires interpretation. We need to see what are the limitation and amplitude of the LG's power under the Article 239AA," it had said.
The Constitution has given a face and identity to a government in Delhi after inclusion of Article 239AA and the executive decisions taken and implemented by it cannot be reversed by the LG, it had contended.
The government, through its counsel and senior advocate Gopal Subramaniam, had said that the LG cannot exercise its power with respect to services as it does not fall under the purview of the Centre under the state list.
"In Delhi's case, Article 239AA (3) preserves Parliament's legislative powers over all subjects in state and concurrent lists. However, no such power is reserved for the Centre/ President," he had said.
"The GNCTD Act explicitly limits the discretion of the LG, and any delegation in that behalf to him by the President only to matters falling outside the purview of Delhi's legislature. Also, the Act says these are matters on which the the LG is 'required to act' on the aid and advice of the Council of Ministers. These features are absent in the earlier laws of 1951 and 1963," he said.
The AAP government had said that since the law rules out the LG's discretion on all matters that fall within the purview of the elected government, there is no occasion for him to differ or have an opinion on these matters.
The apex court had on December 14 observed that the Delhi government should have some powers otherwise it cannot function while hearing the appeals of the city government.
On September 9, the apex court had refused to grant an interim stay on the verdict of the Delhi High Court of August 4 last year.
