Ministers or both for certain Union Territories. In 1991, Article 239AA was inserted through the 1991 Constitution Amendment to accord NCTD a sui generis status from the other Union Territories, including the Union Territories to which Article 239A applies. Parliament could not have envisaged when the 1956 Constitution Amendment was adopted that Union Territories would have been accorded diverse governance models. Therefore, the argument of the Union on legislative intent by drawing upon the omissions in the Seventh Amendment is not persuasive.
(c) Existence of power and exercise of power
138. It is not in contention that presently, a Public Service Commission for NCTD does not exist. However, the existence of power and the exercise of the power are two different conceptions, and should not be conflated. It is settled law that whether a power exists cannot be derived from whether and how often it has been exercised.
139. In State of Bihar v. Maharajadhiraja Sir Kameshwar Singh,[1] the Constitution Bench of this Court rejected the argument that the power to enact a law under Entry 42 of the Concurrent List was a power coupled with a duty. It was held that the Legislature does not have an obligation to enact a law in exercise of its power under the Seventh Schedule:
“19. It was further contended that the power to make a law under entry 42 of List III was a power coupled with a duty, because such law was obviously intended for the benefit of the expropriated owners, and where the Legislature has authorised such expropriation, it was also bound to exercise the
power of making a law laying down the principles on
- ↑ 1952 SCR 889
89
