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Delhi-Centre turf war case triggers ugly Jaising, Rohatgi exchange • Bench just about keeps peace

Item 72, listed as the last case before justices JS Khehar and Arun Mishra at Court No.3, was the one which everyone was waiting for.

But when it was finally taken up at 1 pm, little did anyone expect that Justice Khehar would recuse himself from hearing it, and as a result, refrain from saying anything on its getting listed the next day, as urged by Delhi Government's counsel, Indira Jaising.

The case, Government of National Capital Territory of Delhi vs Union of India, required the Supreme Court's urgent intervention to decide whether Delhi is a Union Territory or a State.

The urgency was prompted by the Delhi Government's compulsion to obtain a stay over the delivery of the judgment by the Delhi high court on the merits of the same case, which it had reserved after hearing it for the past 15 months.

The reason the Delhi Government sought the Supreme Court's intervention to stay the high court's judgment, before it is delivered was because of the Delhi Government's belated discovery that the high court has no jurisdiction to hear the case because Delhi is a state, and the dispute between a state and the Centre can only be heard and decided by the Supreme Court.

In the case before the Delhi high court (civil writ petition 5888 of 2015), the Delhi Government is the petitioner, and when it filed it in the high court, it apparently believed that the high court had the jurisdiction to hear it.

It is therefore anybody's guess what what prompted the Delhi Government to doubt the jurisdiction of the Delhi high court to hear the matter, after the conclusion of the hearing on merits.

In the Supreme Court, the Delhi Government has filed two petitions, which are unusual. One is the SLP (c) 16107 and 16108, listed together tomorrow at Court No 2 which are against the undelivered judgment of the Delhi high court in the case.

The second, which is not listed yet, is the Original Suit No.2, filed by the Delhi Government against the UOI, under Article 131 of the Constitution. Article 131 confers original jurisdiction on the Supreme Court, to the exclusion of any other court, in any dispute between the Government of India and one or more States.

The admission of this petition by the Supreme Court will implicitly accept the Delhi Government's claim that it ought to be considered a State for the purposes of Article 131.

Jaising vs Rohatgi feud

One wonders whether this is the reason that the Attorney General Mukul Rohatgi went back on his consent that the case could be listed on Tuesday, which he had given to Indira Jaising earlier.

Today, as the AG's reluctance to own his consent to Jaising on the question of listing of the petition and the suit became clear, Jaising became furious, and said: "I did not expect this behaviour from the AG "

The AG retorted: " I did not expect this from you".

As the ugly exchange between them unfolded Justice Khehar stepped in and tried to lighten the mood by telling the AG: "If you had given your consent to the woman, obviously you can't go back."

The timely remark diffused the situation and made everyone laugh, except for Rohatgi and Jaising.

The AG was heard saying that procedures matter, and it is the chief justice who could be approached for directions as to the listing of the case tomorrow.

Tuesday's hearing of the case at Court No. 2 as item 45, therefore, promises the potential of another explosive story for Wednesday's papers.

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