Document Fragment View

Matching Fragments

"(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.
(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.

Provided that if any such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent, such law shall prevail in the National Capital Territory:

Provided further that nothing in this sub-clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending varying or repealing the law so made by the Legislative Assembly."

16. Bare reading of the aforementioned clause suggest that the Legislative Assembly of National Capital Territory of Delhi has power to make laws for National Capital Territory of Delhi with respect to the matters in List II or in the Concurrent List, except which are in Entries 1, 2 and 18 of List-II and Entries 64, 65 and 66, in so far as they relate to Entries 1, 2 and 18 of the said list. As such it is competent for the Legislative Assembly of NCT of Delhi make any law in respect to all matters in entry 11-A of List II as well. True scope of Entry 11-A in List-III will be examined in subsequent part of this judgment.

38. In Narottam Das's case (supra) it was also held that a Court without power and jurisdiction would bean anomaly as it would not be able to discharge the functions of administration of justice. It is a fundamental principle of construction of a Constitution that everything necessary for the exercise of powers is included to the grant of power. Everything necessary for the effective execution of power or jurisdiction must, therefore, be taken to be conferred, by the Constitution with the power to constitute and organise a Court. In case the arguments put forth on behalf of the respondents are accepted, the result would be that the Parliament by virtue of powers conferred under Article 241 of the Constitution, having constituted a High Court for a Union Territory and declared to be a Court in such territory to be High Court for all or any of the purpose of the Constitution, would not be able to function till appropriate powers are conferred upon it either by the Parliament or by the Delhi Legislature by enacting law under Item 11-A of List-III. We do not think that such a result was in the contemplation of the Parliament while making the "administration of justice" a subject in the Concurrent List as Entry 11-A, by conferring on the State Legislatures also the power to legislate on the subject and also on the subject of constitution and organisation of all courts. An effective power, which is included within the ambit of entry 11-A of List III, is the law making power on the subject on all courts, except Supreme Court and the High Courts. State Legislatures can, therefore, bring into existence other Courts with general jurisdiction to administer justice on all matters coming before it within certain territorial and pecuniary limits, subject of course to the condition that such general jurisdiction may be expressly or impliedly taken away by the provisions of the other laws.

40. We, in this case, are concerned with special provision, which has been mae with respect to Delhi under Article 239AA and reliance was placed on behalf of the respondents to the first proviso to Sub-clause (c) of Clause (3) that if any provision of law 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 and if such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent, such law made by the Legislative Assembly shall prevail in National Capital Territory. It was urged that since amendments had earlier been carried out to Sub-section (3) of Section 5 of the Delhi High Court Act, 1966 by the Parliament, the impugned legislature made by the Legislative Assembly of National Capital Territory of Delhi, which had ben reserved for the consideration of the President and had also received his assent is to prevail by virtue of first proviso to Sub-clause (c) of Clause (3) of Article 239AA. Learned Attorney General submitted that the Presidential assent cannot cure the basic defect of lack of legislative competence. If the Delhi Legislative Assembly had no legislative competence to pass the impugned legislation, Presidential assent is of no avail. The question of repugnancy can arise only when Parliament and the State Legislature have passed legislation, in respect of one or more entires in the Concurrent List. The Delhi High Curt Act, 1966 was passed by the Parliament, in exercise of its legislative power under Entry 78 of List I of the Seventh Schedule of the Constitution. The said Act was not passed in respect of any entry in the Concurrent List. In fact, Entry 11-A of List III was not in existence when the Parliamentary legislation was passed, therefore, the question of repugnancy does not arise. Field of legislation with regard to constitution and organisation of High Courts was an occupied field by the Parliamentary legislation, namely, the Delhi High Court Act, 1966, therefore; also the Delhi Legislative Assembly had no competence to enact the impugned legislation.