whether a power exists cannot be derived from whether and how often it has been exercised.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No 2357 of 2017
Government of NCT of Delhi Appellant
Versus
Union of India Respondent
2
J U D G M E N T
Dr. Dhananjaya Y Chandrachud, CJI

(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,
44 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
44 1952 SCR 889
PART L
90
which such owners should be compensated for their
loss. While certain powers may be granted in
order to be exercised in favour of certain persons
who are intended to be benefited by their exercise,
and on that account may well be regarded as
coupled with a duty to exercise them when an
appropriate occasion for their exercise arises, the
power granted to a legislature to make a law with
respect to any matter cannot be brought under that
category, It cannot possibly have been intended
that the legislature should be under an
obligation to make a law in exercise of that
power, for no obligation of that kind can be
enforced by the court against a legislative
body.
(emphasis supplied)
140. Similarly, in State of Haryana v. Chanan Mal,
45 while upholding the
constitutional validity of the Haryana Minerals (Vesting of Rights) Act, 1973, after
noticing the declaration made in Section 2 of the Mines and Minerals (Regulation
and Development) Act, 1957, as envisaged by Entry 54 of the Union List, it was
held that exercise and existence of power cannot be conflated:
24. In the two cases discussed above no provision
of the Central Act 67 of 1957 was under
consideration by this Court. Moreover, power to
acquire for purposes of development and regulation
has not been exercised by Act 67 of 1957.
The existence of power of Parliament to
legislate on this topic as an incident of exercise
of legislative power on another subject is one
thing. Its actual exercise is another. It is difficult
to see how the field of acquisition could become
occupied by a Central Act in the same way as it had
been in the West Bengal case even before
Parliament legislates to acquire land in a State.
Atleast until Parliament has so legislated as it was
shewn to have done by the statute considered by
this Court in the case from West Bengal, the field is
free for State legislation falling under the express
provisions of entry 42 of List III.
(emphasis supplied