Tapesh Bagati Vs Union of India

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) No._________of 2015
[Under Article 32 of the Constitution of India]
IN THE MATTER OF:Tapesh Bagati
Petitioner
VERSUS
Union of India & Ors
.Respondents
PAPER - BOOK
(FOR INDEX KINDLY SEE INSIDE)
ADVOCATE FOR THE PETITIONER: PRIYA PURI MEHRA

Petitioner
VERSUS
.Respondents
OFFICE REPORT ON LIMITATION
1.
The Petition is within time.
Yes/NO
2.
The Petition is barred by time and there is delay of______days
in filing the same against order dated__________and petition for

condonation of_____________days delay has been filed.
3.
There is delay of_________days in refilling the petition and
petition
for condonation of_________days delay in refilling has
been filed.
BRANCH OFFICER
NEW DELHI

Petitioner
VERSUS
.Respondents
CERTIFICATE
"Certified that the Special Leave Petition is confined only to the
pleadings before the Court/Tribunal whose order is challenged and the
other documents relied upon in those proceedings. No additional facts,
documents or grounds have been taken therein or retied upon in the
Special Leave Petition. It is further certified that the copies of the
documents/Annexures attached to the special leave petition are
necessary to answer the question of law raised in the petition or to
make out grounds urged in the special leave petition for consideration
of this
Court. This certificate is given on the basis of the instructions
given by the Petitioner/Person authorised by the Petitioner whose

affidavit is filed in support of the S.L.P.
Filed on: 03.09.2015
(Mrs. PRIYA PURI)
Section:____
PROFORMA FOR FIRST LISTING
The case pertains to (Please tick/ check the correct box):
[ ] Central Act: (Title):
N/A
] Section:
N/A
] Central Rule: (Title)
N.A.
] Rule No(s):
N.A.
] State Act: (Title)
N.A.
] Section:
N.A.
] State Rule: (Title)
N.A.
] Rule No(s):
N.A.
] Impugned Interim: (Date)
N.A.
] Impugned Final Order/ Decree: (Date)
] High Court: Honble Court
] Name of Judges:
] Tribunal/ Authority: (Name) N.A.
1.
Nature of matter: [
] Civil
] Criminal
2.
(a) Petitioner/Appellant No.1 Tapesh Bagati
(b) e-mail ID: hkpuriandco.@gmail.com

(c) Mobile phone number:
3.
(a) Respondent No.1:
N.A.
(b) e-mail ID:

(c) Mobile phone number:
3.
(a) Main category classification:

(b)
Sub classification:
5.
Not to be listed before: N.A.
6.
Similar/ Pending matter: N.A.
7.
Criminal Matter:
(a)
Whether accused/ convict has surrendered:

[
] Yes
] No
] N.A.
8.
(b)
FIR No.
Complaint
(c)
Police Station:
(d)
Sentence Awarded: N.A.
(e)
Sentence Undergone: N.A.
Date:
Land Acquisition Matters:

(a)
Date of Section 4 notification: N.A.
(b)
(c)(
9.
Tax Matters: State the tax effect: N.A.
10.
Special Category (first petitioner/ appellant only):

[
[
] Senior citizen > 65 years [ ] SC/ST [

] Disabled [ ] Legal Aid case
] In custody
] Woman/ child
11.
Vehicle Number (in case of Motor Accident Claim matter): N.A.
12.
Decided cases with citation: N.A.
Date:03.09.2015
AOR for petitioner(s)/ appellant(s)

PRIYA PURI
Advocate
Registration No. 1880
S. NO.
PARTICULAR(S)
PAGE NOS
1.
Listing Proforma
A1-A2
2.
Synopsis and List of Dates
B-E
3.
Writ Petition with Affidavit
1 -38
4.
Annexure P-1
Copy of the Media Report Published
in Hindustan Times, New Delhi
dated 01.04.2015.
39-44
Annexure P-2
Copy of the Media Report dated
18.05.2015 in PTI
45-52
5.
6.
7.
8.
9.
10.
11.
Annexure P-3
Copy of the Media report dated
20.06.2015 appeared in the website
FIRSTPOST.COM
53-59
Annexure P-4
Copy of the Ministry of Home Affairs
notification dated 21.05.2015.
60-63
Annexure P-5
Copy of the order no. 260, Govt. of
NCT, Service Department Services-1
Branch, Delhi Secretariat, New Delhi
dated 25.05.2015.
64-67
Annexure P-6
Copy of the order no. 261, Govt. of
NCT, Service Department Services-1
Branch, Delhi Secretariat, New Delhi
dated 25.05.2015.
Annexure P-7
Copy of the judgment dated
25.05.2015 passed by the Delhi
High Court in Bail Application No.
878 of 2015
Annexure P-8
Copy of the order dated 29.05.2015
passed by the Delhi High court Delhi
at New Delhi in W. P.(C) No.
5888/15
68-71
72-120
121-122
12.
Annexure P-9
Copy of the order dated 29.05.2015
passed by this Honble Court in
SLP(Crl.) CRL. M. P. No. 9599 of
2015.
13. Annexure P-10

Copy of the order no. 296 Govt. of NCT,
Service Department Services-1 Branch,
Delhi Secretariat, New Delhi dated
09.06.2015
14.
Annexure P-11
Copy of the order no. 297, Govt. of NCT,
Service Department Services-1 Branch,
Delhi Secretariat, New Delhi dated
09.06.2015.
15. Annexure P-12

Copy of the Press release dated
12.06.2015 by Raj Niwas
16.
126-128
129-131
132
Annexure P-13
Copy of the notification dated
17.07.2015 by the Department of
Woman and Child Development ,
Govt. of NCT, (Women empowerment
Cell)
17. Letter
123-125
133-136
137
SYNOPSIS AND LIST OF DATES

The present Petition is being filed by a citizen of India, who along
with his family resides in Delhi, in bona fide public interest. The
Petitioner is approaching this Honble Court to seek redressal of his
concerns, occasioned by the continuing conflict relating
to the
administration and governance in Delhi during the course of this

year, which has led to a breakdown of systems of governance in the
National Capital Territory of Delhi. This ongoing tussle has led to a
complete collapse of the Constitutional machinery, resulting into a
failure on the part of the administration in Delhi to effectively cater
even to the needs of basic amenities, such as water, health,
education, electricity, and sanitization, thereby curtailing the
Fundamental Rights under Article 21 of the Constitution of India
available to all residentsW of Delhi.
Delhi is a Union Territory, governed by Article 239AA of the
Constitution of India. Since the present Government has come to
power, there have been a large number of controversies regarding
the decision-making powers vis--vis the administration of Delhi
It has been held by this Honble Court that the doctrine of good
governance requires the Government to act only in the public
interest and for the welfare of its people.
The Lieutenant Governor of Delhi, appointed under Article 239AA of

the Constitution of India, has failed in his Constitutional duty as the
Administrator of Delhi under the Constitution of India, the
Government of National Capital Territory of Delhi Act, 1991, and
other legislations governing the administration of Delhi.
When key duty holders under the Constitution are failing in
discharging their duties, it is it is the duty of this Court to remind the
key duty holders about their role in working the Constitution.
Whenever there is a failure to perform a legal duty, this Honble
Court has the power to interfere to protect the Fundamental Rights
of the Petitioner and other citizens of Delhi.
In view of this continuous conflict, it is imperative that strict
compliance with Article 239-AA of the Constitution be directed.
LIST OF DATES
07.03.1952
Delhi State Legislative Assembly came into being

under the Government of Part-C States Act, 1951
01.11.1956
Delhi ceased to be a Part-C State consequent to the

States Reorganization Act, 1956 (Section 12, Part C)
and the Constitution (Seventh Amendment) Act,
1956. Delhi became a Union Territory.
1957
Delhi Municipal Corporation Act, 1957 was enacted,

constituting a Municipal Corporation for the whole of
Delhi with members elected on the basis of adult
franchise.
01.07.1963
Provisions of the Government of Union Territories

Act, 1963 which were applicable to Delhi came into
effect.
1966
Delhi Administration Act, 1966 was enacted.
1991
Article 239AA included in the Constitution, vide the

69th Amendment.
Government of National Capital Territory of Delhi Act,
1991 was enacted
Assembly for Delhi.
providing for a
Legislative
04.12.2013
Elections to the Fifth Delhi Legislative Assembly were

held.
28.12.2013
Aam Aadmi Party (AAP) formed Government with

the outside support of the Indian National Congress
(INC).
14.02.2014
Council of Ministers of GNCTD resigned.
16.02.2014
Honble President of India imposed Presidents Rule

in Delhi, and placed the Legislative Assembly under
suspended animation.
04.11.2014
Fifth Legislative Assembly of Delhi dissolved.
01.04.2015
Media Report Published in the Hindustan Times, New

Delhi dated 01.04.2015 that Delhi Chief Minister and
Lieutenant Governor Mr. Najeeb Jung are on collision
course.
07.02.2015
Elections to Sixth Legislative Assembly of Delhi were

held.
10.02.2015
Results of the Sixth Legislative Assembly of Delhi

were declared, wherein the Aam Aadmi Party got an
absolute
majority
and
formed
Government
on
14.02.2015.
14.02.2015
Continuing conflict between the Respondent with
relation to decision-making vis--vis appointments,

postings, governance of agencies, health, water,
sanitization, electricity, education, etc.
18.05.2015
Media report regarding conflict between the Chief

Minister and Lieutenant Governor Mr. Najeeb Jung
was Published in PTI.
21.05.2015
Notification of Ministry of Home Affairs Published

herein it was provided that the Lieutenant Governor
of NCT of Delhi in his discretion obtained the views of
the Chief Minister of the NCT of Delhi in regard to
matter of services.
25.05.2015
Order for transfer of Officers were made vide order

no. 260 and 261 by Govt. of NCT of Delhi , Service
Department, Services -1, Branch Delhi Secretariat,
New Delhi.
The Honble High Court of Delhi vide order dated
25.5.2015 passed in Bail Application No. 878/2015
while dismissing the bail application made various
observations regarding the power the Lieutenant
Governor of NCT of Delhi and Legislative Assembly of
Delhi.
29.05.2015
Vide order dated 29.05.2015 passed in W.P. (C) No.

5888/2015, the Ld. Single Judge of the High Court of
Delhi at New Delhi issued a direction that the

Lieutenant Governor of Delhi will deliberate upon the
order nos. 260 and 261 thereafter take a decision
regarding posting of the officers concerned.
Also this Hon,ble Court vide interim order dated
29.5.2015 passed in the SLP (Crl.) Crl. M. P. No.
9599
of
2015
made
observations
regarding
notification dated 21.5.2015.

9.6.2015
Order no. 296 dated 9.6.2015 by the Govt. of NCT of

Delhi were issued thereby placing the service of Shri
Dharam Pal at the disposal of the Ministry of Home
Affairs. And thereafter subsequent order were passed
vide order no 297 dated 9.6.2015
12.6.2015
Municipal sanitation workers went on strike and the

same was called off only after the Press Release by
Raj Niwas dated 12.6.2015.
20.6.2015
Media report appeared in the website
FIRSTPOST
wherein the continued battle between the Lieutenant

Governor and the Chief Minister was taken as the
main reason behind problem in respect of power,
garbage and water.
17.7.2015
Vide notification dated 17.7.2015 issued by the

Department of Woman and Child Development the
GNCTD reconstituted the Delhi Commission for
Woman without placing the matter before the
Lieutenant Governor of Delhi for approval.

WRIT PETITION (CIVIL) No.
of 2015
IN THE MATTER OF:

TAPESH BAGATI
s/oLate Sh. Major Tej Kishan Bagati
R/o A-43, Vasant Marg (2nd Floor),
Vasant Vihar,
New Delhi 110057
E-mail: tapeshbagati@gmail.com
Mob: (+91) 9810200000
Petitioner
Versus
1. Union of India
Through the Secretary,
Ministry of Home Affairs
North Block, Central Secretariat,
New Delhi 110001
2. Government of NCT of Delhi
Through the Chief Secretary,
Delhi Secretariat, I.P. Estate,
New Delhi - 110002
3. Lieutenant Governor of Delhi
Raj Niwas
6, Raj Niwas Marg,
Civil Lines
New Delhi 110054
Respondents
All are Contesting Respondent
WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF

INDIA FOR THE ISSUANCE OF AN APPROPRIATE WRIT, ORDER OR
DIRECTION TO THE RESPONDENTS TO ENSURE STRICT
COMPLIANCE WITH ARTICLE 239AA OF THE CONSTITUTION OF
INDIA
To
HONBLE THE CHIEF JUSTICE AND HIS
HONBLE COMPANION JUSTICES OF THE
HONBLE SUPREME COURT OF INDIA
THE HUMBLE PETITION OF THE

PETITIONER ABOVE NAMED
MOST RESPECTFULLY SHOWETH:
1.
The Petitioner is a citizen of Delhi, born and brought up and
educated in Delhi. His father was a Major in the Indian Armed

Forces, who died in 1978while still serving the Indian Army.The
Petitioner is an entrepreneur by profession. He is a Director in
various companies, and provides consultancy to certain companies.
The Petitioner aided in setting up the Haryana Janhit Congress party
in 2007, but exited the party in 2009. He has been filing Income Tax
Returns since 1995. The annual income of the Petitioner is
approximately Rs. 1,30,23,900/- (Rupees One Crore Thirty Lakhs
Twenty Three Thousand Nine Hundred Only).His Permanent Account
Number is AERPB0022N and his Voter ID card number is
NLN1690833. He is a registered voter in Delhi. There is no civil,
criminal, or revenue litigation involving the Petitioner.
2.
The present Petition is being filed in public interest, with
absolute bona fides, and without any personal interest whatsoever.

The present Petitioner has no personal gain, private motive, or
oblique reason in filing this Petition. The Petitioner has not
approached any Government authority before filing the present
Petition, as the conflict between the Respondents is in the public

domain, and a representation would not serve any purpose.
3.
The present Petition is occasioned by the anguish of the
Petitioner stemming from events that have been transpiring over the
last two years in Delhi with respect to a continuing conflict
administrationof Delhi the Constitution of India and other relevant
statutes.
4.
The conflict between the Respondents has caused grave
consternation to the citizens of Delhi, including the present

Petitioner. Delhi is the national capital of India, and such conflict in
the administration of Delhi does not augur well for a national capital,
and
leaves
its
citizens
thoroughly
disillusioned
with
the
administration and governance of Delhi.
5.
Before setting out the facts relevant for the purpose of the
present Petition, it is imperative to analyse the legislative history of

Delhi, which has always been of a unique character. This analysis is
crucial to the events of the present day.
LEGISLATIVE HISTORY OF DELHI

6.
One of the initial statutes to define Central Government and
State Government was the General Clauses Act, 1897. The relevant
clauses are Section 3(8)(b)(iii) and Section 3(60)(c). Section
3(8)(b)(iii) of the General Clauses Act, defines Central Government

with respect to a Union Territory as under:
(iii) and in relation to the administration of a Union territory, the

administrator thereof acting within the scope of the authority given
to him under article 239 of the Constitution.
7.
Section 3(60)(c) of the General Clauses Act, defines State
Government as under:
as respects anything done or to be done after the
commencement of the Constitution (Seventh Amendment)
Act, 195, shall mean, in a State, the Governor, and in a
Union territory, the Central Government.
8.
The area that is now known as the National Capital Territory of

Delhi was, until 1911, classified as a District of the State of Punjab.
Following the announcement of the decision to transfer the capital
of British India from Calcutta to Delhi, Government Notification No.
911 dated 17.09.1912 was issued authorising the Governor General
to take under his authority the territory comprising the Tehsil of
Delhi and adjoining areas. The notification provided for the
administration of these areas as a separate province under the
Chief Commissioner
9.
The Delhi Laws Act, 1912 and the Delhi Laws Act, 1915 made
provisions for the continuance of laws in force in the territories
comprising the Chief Commissioners Province in Delhi and for the

extension of other enactments in force in any part of British India to
Delhi by the Governor General-in-Council. Under the Government of
India Act, 1919, the Indian Legislature had the power to enact laws
for the province of Delhi
10.
However, legislation for Delhi was done by extension of laws in

force in Punjab and other States and issuing notifications under the
Delhi Laws Acts, 1912 and 1915. This enabled the Governor
General-in-Council to ensure, as far as possible, uniformity of laws
with Punjab, since a substantial part of Delhi had originally formed
an administrative district of that province.
11.
After Independence, Delhi continued to be administered directly by

the Government of India and the different Departments of that
Government began to deal directly with corresponding Departments
in the Chief Commissioners Office. This arrangement continued till
shortly after the commencement of the Constitution.
12.
The Delhi State Legislative Assembly came into being on

07.03.1952, under the Government of Part-C States Act, 1951.
13.
The 1952 Assembly consisted of 48 members. There was a

provision for a Council of Ministers (Section 36) to aid and advise
the Chief Commissioner in the exercise of his functions in relation to
matters in respect of which the State Assembly was given powers

to make laws.Section 38 related to the conduct of business.
14.
However, the legislative powers granted to Part-C States were

limited and the legislative powers of Delhi Assembly had been
further curtailed as is evident from the proviso to Section 21 of the
Part C States Act, 1951, which is reproduced hereunder:
Section 21 - Extent of legislative power
(1) Subject to the provisions of this Act, the Legislative
Assembly of a State may make laws for the whole or any
part of the State with respect to any of the matters
enumerated in the State List or in the Concurrent List:
Provided that the Legislative Assembly of the State of Delhi
shall not have power to make laws with respect to any of
the following matters, namely:-(a)
public order;
(b)
police including railway police;
(c)
the
constitution
corporations and
improvement
and
powers
of
municipal
other local authorities, of
trusts
and
of
water
supply,
drainage, electricity, transport and other public

utility authorities in Delhi or in New Delhi;
(d)
lands and buildings vested in or in the possession

of the Union
which are situated in Delhi or
in New Delhi including all rights in or over such
lands and buildings, the collection of rents

therefrom and the transfer and alienation thereof;
(e)
offences against laws with respect to any of the

matters mentioned in the foregoing clauses;
(f)
jurisdiction and powers of all courts, with respect

to any of the said matters; and
(g)
fees in respect of any of the said matters other

than fees taken in any court.
(2) Nothing in sub-section (1) shall derogate from the

power conferred on Parliament by the Constitution to
make laws with respect to any matter for a State or any
part thereof.
15.
In
pursuance
of
the
recommendations
of
the
State
Reorganisation Commission submitted on 30.09.1955, Delhi ceased

to be a Part-C State with effect from 01.11.1956, consequent to the
States Reorganization Act, 1956 (Section 12, Part C) and the
Constitution (Seventh Amendment) Act, 1956. The Delhi Legislative
Assembly and the Council of Ministers were abolished and Delhi
became a Union Territory under the direct administration of the
President. Under Section 17 of the Seventh Amendment Act, it was
stated that in Part VIII of the Constitution, for the heading The
States in Part C of the First Schedule, the heading The Union
Territories shall be substituted. New Articles 239 and 240 were
introduced.The First Schedule to the Constitution of India lists the
States and Union territories of India. Under the head of Union

Territories, Delhi is listed at Item 1.
16.
In
accordance
with
another
recommendation
of
the
Commission, the Delhi Municipal Corporation Act, 1957 was enacted,

constituting a Municipal Corporation for the whole of Delhi with
members elected on the basis of adult franchise.
17.
In 1963, the Government of Union Territories Act, 1963 was
enacted. This Act was enacted to provide for Legislative Assemblies

and Council of Ministers for certain Union Territories and for certain
other matters. In effect, it sought to confer on certain Union
Territories, the status of former Part-C States.
18.
The Statement of Objects and Reasons of this Act stated that
Article 239A of the Constitution introduced by the Constitution

(Fourteenth Amendment) Act, 1962 enabled Parliament to create by
law Legislatures or Councils of Ministers or both in the Union
territories of Himachal Pradesh, Manipur, Tripura, Goa, Daman and
Diu, and Pondicherry. It was in this background that this Act was
enacted.
19.
Vide Notification dated 14.06.1963 issued under Section 1(2)
of the Government of Union Territories Act, 1963, the provisions of

this Act in part that were applicable to Delhi came into force with
effect from 01.07.1963.
20.
Section 2(a) of the Act defined an Administrator to mean the
administrator of the Union Territory appointed by the President

under Article 239.
21.
Over the decades, there was considerable pressure of public
opinion in Delhi for providing a democratic set up and a responsive

administration at that point of time. In partial fulfillment of this
demand and on the basis of recommendations of Administrative
Reforms Commission, the Delhi Administration Act, 1966 was
enacted with the object of providing for a larger measure of
association of the representatives of the people of the Union
Territory of Delhi with the administration of the territory.
22.
The Act provided for a deliberative body-called Metropolitan
Council (Section 3) having recommendatory powers. Section 2(a) of

the Act defined an Administrator to mean the Administrator of Delhi
appointed by the President under Article 239 of the Constitution of
India. Functions of the Metropolitan Council were set out in Section
22 of the Act.
23.
There was an Executive Council (under Section 27) consisting
of one Chief Executive Councillor and three Executive Councilors to

assist and advise the Administrator in exercise of his functions in
relation to matters enumerated in the State List or Concurrent List,
except in so far as he was required by or under this Act to exercise
his functions or any of them in his discretion or by or under any law
to exercise any judicial or quasi-judicial function.
24.
The Metropolitan Council set-up suffered from many inherent
deficiencies. It had no legislative powers and it had only an

advisory role in the governance of Delhi.
25.
Accordingly,
on
24.12.1987,
the
Government
of
India
appointed the Sarkaria Committee (later called the Balakrishan

Committee) to go into the various issues connected with the
administration of the Union Territory of Delhi and to recommend
measures for streamlining the administrative set up. The Committee
submitted its report on 14.12.1989.
26.
The committee considered the matter in great detail and held
discussions with various individuals, associations, political parties

and other experts. It also considered the arrangements existing in
the National Capitals of other countries with a federal set-up and
also the reports by earlier committees and commissions. After
detailed enquiries and examinations, it recommended that Delhi
should continue to be a Union Territory but should be provided with
a Legislative Assembly and a Council of Ministers responsible to
such Assembly with appropriate powers to deal with matters of
concern to the common man. The Committee also recommended
that with a view to ensuring stability and permanence, the
arrangements should be incorporated in the constitution to give the
National Capital a special status among the Union Territories.
27.
A special provision for Delhi was included in the Constitution
by the 69th Amendment in 1991, i.e., Article 239AA, which reads as

under:
239AA. Special provisions with respect to Delhi
1. As from the date of commencement of the Constitution
(Sixty-ninth Amendment) Act, 1991, the Union territory of
Delhi shall be called the National Capital Territory of Delhi
(hereafter in this Part referred to as the National Capital
Territory) and the administrator thereof appointed under
article 239 shall be designated as the Lieutenant Governor.
2.
(a) There shall be a Legislative Assembly for the
National Capital Territory and the seats in such
Assembly shall be filled by members chosen by direct
election from territorial constituencies in the National
Capital Territory.
(b) The total number of seats in the Legislative
Assembly,
the
number
of
seats
reserved
for
Scheduled Castes, the division of the National Capital

Territory into territorial constituencies (including the
basis for such division) and all other matters relating
to the functioning of the Legislative Assembly shall
be regulated by law made by Parliament.
(c) The provisions of articles 324 to 327 and 329 shall
apply in relation to the National Capital Territory, the
Legislative Assembly of the National Capital Territory

and the members thereof as they apply, in relation
to a State, the Legislative Assembly of a State and
the members thereof respectively; and any reference
in articles 326 and 329 to "appropriate Legislature"
shall be deemed to be a reference to Parliament.
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.
(c) If any provision of a 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, or of

an earlier law, other than a law made by the
Legislative Assembly, then, in either case, the law
made by Parliament, or, as the case may be, such
earlier law, shall prevail and the law made by the
Legislative Assembly shall, to the extent of the
repugnancy, be void:
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.
4. There shall be a Council of Ministers consisting of not more
than ten per cent of the total number of members in the
Legislative Assembly, with the Chief Minister at the head to
aid and advise the Lieutenant Governor in the exercise of
his functions in relation to matters with respect to which
the Legislative Assembly has power to make laws, except
in so far as he is, by or under any law, required to act in
his discretion:
Provided that in the case of difference of opinion between the

Lieutenant Governor and his Ministers on any matter, the
Lieutenant Governor shall refer it to the President and
pending such decision it shall be competent for the Lieutenant
Governor in any case where the matter, in his opinion, is so
urgent that it is necessary for him to take immediate action,
to take such action or to give such direction in the matter as
he deems necessary.
5.
The Chief Minister shall be appointed by the President and the

other Ministers shall be appointed by the President on the
advice of the Chief Minister and the Ministers shall hold office
during the pleasure of the President.
6.
The Council of Ministers shall be collectively responsible to the

Legislative Assembly.
7.
(a) Parliament may, by law, make provisions for giving
effect to, or supplement the provisions contained
in the foregoing clauses and for all matters
incidental or consequential thereto.
(b) Any such law as is referred to in sub-clause (a) shall
not be deemed to be an amendment of this
constitution for the purposes of article 368
notwithstanding that it contains any provision
which amends or has the effect of amending this

constitution.
8. The provisions of article 239B shall, so far as may be, apply in
relation to the National Capital Territory, the Lieutenant
Governor and the Legislative Assembly, as they apply in
relation
to
the
Union
territory
of
Pondicherry,
the
administrator and its Legislature, respectively; and any

reference in that article to "clause (1) or article 239A" shall be
deemed to be a reference to this article or article 239AB, as
the case may be.
28.
Article 239AA provides that from the date its commencement,
the Union Territory of Delhi shall be called the National Capital

Territory of Delhi (hereinafter referred to as the National Capital
Territory) and its Administrator appointed under Article 239 of the
Constitutionshall be designated as the Lieutenant Governor.
29.
Article 239AA (2) provides for a Legislative Assembly for the
National Capital Territory. 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 such matters are
applicable to Union Territories.
30.
This Article also prohibits the Assembly from making laws on
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.Further, if any provision of a law made by the
Legislative Assembly is repugnant to any provision of law made by
Parliament with respect to that matter, whether passed before or
after the law made by the Legislative Assembly, then the law made
by the Parliament shall prevail and the law made by the Legislative
Assembly shall be void to the extent of its repugnancy.
31.
The Government of National Capital Territory of Delhi Act,
1991 was enacted providing for a Legislative Assembly for Delhi

(Section 3). This Act repealed the Delhi Administration Act, 1996.
32.
Section 41 of the Act provides for matters in which the
Lieutenant Governor was to act in his discretion. The section is

reproduced hereunder:
(1) The Lieutenant Governor shall act in his discretion in a
matter-(i) which falls outside the purview of the powers conferred
on the Legislative Assembly but in respect of which powers
or functions are entrusted or delegated to him by the
President; or
(ii) in which he is required by or under any law to act in his
discretion or to exercise any judicial or quasi-judicial
functions.
(2) If any question arises as to whether any matter is or is

not a matter as respects which the Lieutenant Governor is
by or under any law required to act in his discretion, the
decision of the Lieutenant Governor thereon shall be final.
(3) It any question arises as to whether any matter is or is
not a matter as respects which the Lieutenant Governor is
required by any law to exercise any judicial or quasijudicial functions, the decision of the Lieutenant Governor
thereon shall be final.
33.
Section 44 provided for the conduct of business and is

reproduced hereunder:
(1) the President shall make rules-(a) for the allocation of business to the Ministers in so far
as it is business with respect to which the Lieutenant
Governor is required to act on the aid and advice of his
Council of Ministers; and
(b) for the more convenient transaction of business with
the Ministers, including the procedure to be adopted in the
case of a difference of opinion between the Lieutenant
Governor and the Council of Ministers or a Minister.
(2) Save as otherwise provided in this Act, all executive
action of the Lieutenant Governor whether taken on the
advice of his Ministers or otherwise shall be expressed to

be taken in the name of the Lieutenant Governor.
(3) Orders and other instruments made and executed in
the
name
of
the
Lieutenant
Governor
shall
be
authenticated in such manner as may be specified in rules

to be made by the Lieutenant Governor and the validity of
an order or instrument which is so authenticated shall not
be called in question on the ground that it is not an order
or instrument made or executed by the Lieutenant
Governor.
BACKGROUND TO THE PRESENT PETITION
34.
In the backdrop of this legislative history, it is necessary to
consider the background starting from December 2013 leading up

to the present.
35.
The elections to the Fifth Delhi Legislative Assembly were held
on 04.12.2013. None of the contesting parties secured a majority.

On 28.12.2013, the Aam Aadmi Party (AAP) formed Government
with the outside support of the Indian National Congress (INC).
36.
Following the coming into power of the AAP, certain
contentious decisions were taken, which were reported in the

media. These decisions included the decision relating to the setting
up of a Jan Lokpal in the GNCT of Delhi, which was to be taken up

for discussion in the Legislative Assembly.
37.
At the time, an issue arose regarding certain provisions of the
GNCTD Act, 1991 and the Transaction of Business of the

Government of NCTD Rules, 1993, and this related to the
consideration of the Jan Lokpal Bill without it being placed before
the Lieutenant Governor. As a result of this back-and-forth between
the Respondent Nos. 2 and 3, the Bill could not be placed before
the Assembly of the NCT of Delhi.
38.
In protest, the then Council of Ministers of GNCTD resigned
on 14.02.2014, which decision was conveyed by the Lieutenant

Governor vide his report dated 15.02.2014 to the Honble President
of India. On 16.02.2014, the Honble President of India imposed
Presidents Rule in Delhi, and placed the Legislative Assembly under
suspended animation.
39.
The Fifth Legislative Assembly of Delhi was dissolved on
04.11.2014, and the citizens of India residing in Delhi were thus

deprived of their elected government.
40.
On 10.02.2015, the results of the elections to the Sixth Delhi
Legislative Assembly (held on 07.02.2015) were declared wherein

the AAP got an absolute majority and formed Government on
14.02.2015, whereas the BJP got only 3 seats in the Assembly.
CONTROVERSY OVER THE POWERS OF THE GNCTD VIS--VIS THE

POWERS OF THE LIEUTENANT GOVERNOR OF DELHI WITH
RESPECT TO THE NCT OF DELHI
41.
It appears that the conflict with respect to the Jan Lokpal Bill
was only the first of many differences.
42.
Since
the
present
Government
was
elected,
certain
controversial decisions were taken, by the Respondents which have

been widely reported, and are in the public domain. The Petitioner
is relying on the information available in the public domain. It
appears that the basic controversy which arose in these decisions
was with respect to the powers of administration in Delhi under the
Constitution of India and other relevant statutes. There appears to
a constant tussle or conflict between the Respondents.
Copy of the media report published in Hindustan Times, New Delhi

dated 01.04.2015 is annexed herewith and marked as ANNEXURE
P-1, (PAGES 39 TO 44)
Copy of the media report dated 18.05.2015 in PTI is annexed
herewith and marked as ANNEXURE P-2, (PAGES 45 TO 52)
Copy of the media report dated 20.06.2015 appeared in the website

FIRSTPOST.COM is annexed herewith and marked as ANNEXURE
P-3, (PAGES 53-59)
43.
FACTS
Numerous instances which have come to the knowledge of
the present Petition and which constituted the cause of action in

the present matter have been highlighted hereinbelow.
i.
An issue arose with respect to Shri S.N. Sahai being assigned
the charge of Chief Secretary, GNCTD upon retirement of Shri

Spolia, superceding officers of higher seniority already serving in the
GNCTD.
i. The interpretation of the second proviso to Rule 45 of the

Transaction of Business of the Government of NCTD Rules,
1993 was a subject of controversy, with respect to the
exercise of powers by the Lieutenant Governor of Delhi in
respect of matters connected with Public Order, Police, and
Land. On an interpretation of the Rule, it was directed that
files with respect to these 3 areas be routed through the
office of the Chief Minister of GNCTD. In this regard, the
Learned Attorney General for India is said to have opined
that the State Legislature does not have any power to deal
with Public Order, Police, and Land insofar as the NCT of
Delhi is concerned
ii. Despite a communication from the Lieutenant Governor of

Delhi to the Chief Minister, GNCTD that all the powers
under the State List had not been transferred to either the
Council of Ministers or to the Legislature, and that
according to Article 239AA(3)(a), the entries with respect to
Public
Order,
Police,
and
Land
belonged
to
the
Administrator, who had been delegated these powers by
the Union of India, a decision was taken by the GNCTD that

all files (except parole files) required to go to the Lieutenant
Governor of Delhi would be routed through the Chief
Minister, GNCTD
iii. In April 2015, the Chief Minister, GNCTD communicated to

the Lieutenant Governor of Delhi that barring Public Order,
Police, and Land, all other subjects had been transferred to
the Legislature of NCT of Delhi, and therefore the power
with respect to all subjects barring the aforementioned
three rested with the Council of Ministers. It was further
communicated that barring these three entries, files with
respect to other entries need not be sent to the Lieutenant
Governor. This included Reserved Subjects as well. An order
was issued to similar effect by the Secretary to the Chief
Minister to all Principal Secretaries / Secretaries / Heads of
Department of GNCTD.
iv. In response, the Lieutenant Governor of Delhi referred to

and reiterated the provisions of Articles 239AA(3) and (4),
which referred to Transferred and Reserved Subjects. It
was conveyed that under the Constitution, Reserved
Subjects fall within the exclusive domain of the Lieutenant
Governor of Delhi. A request was made to the Chief Minister
to withdraw the order issued.
v. In May 2015, when the Chief Secretary Mr. K.K. Sharma

went on leave, he submitted a proposal to the Deputy Chief
Minister for assigning the charge of officiating Chief
Secretary to Ms. Naini Jayaseelan, who was at the time the
senior-most serving officers. The Deputy Chief Minister,
however, submitted the name of Mr. Parimal Rai. Vide
decision
dated
13.05.2015,
the
Lieutenant
Governor
appointed Shakuntala Gamlin as the Chief Secretary. Ms.

Gamlin submitted a complaint to the Lieutenant Governor.
vi. The issue of Ms. Gamlins appointment was the subject

matter of heated debate. No formal orders were issued
regarding her appointment by the Government. On the
orders of the Lieutenant Governor, the Principal Secretary
(Services) issued an order whereby Ms. Gamlin assumed
charge as officiating Chief Secretary. The Chief Minister
communicated to the Lieutenant Governor his protest
against the appointment of Ms. Gamlin. The Chief Minister
referred to the proviso to Article 239AA(4), which refers to
a reference to the President in case of a difference between
the Lieutenant Governor of Delhi and his Council of
Ministers. Reference was further made to Rules 49, 50, 51,
and 52 of the Transaction of Business of the Government of
NCTD Rules, 1993. Allegations of lobbying were also made
against Ms. Gamlin.
vii. Vide letter dated 19.05.2015, the Lieutenant Governor of

Delhi explained his position to the Chief Minister, and
requested his cooperation.
viii. In continuance of this issue, a corollary issue is said to have

arisen with respect to the then Principal Secretary
(Services), Shri Anindo Majumdar not being allowed to
continue functioning in his position, and him being replaced
with Shri Rajendra Kumar. The Lieutenant Governorof Delhi
observed that the order issued by the Deputy CM with
respect to Shri Majumdar was unconstitutional.
ix. Letters were exchanged between the Chief Minister and the
Lieutenant Governor of Delhi with respect to putting up files
before the Lieutenant Governor. Orders were issued by
Ministers of the GNCTD
regarding files to be submitted
only to the Minister-in-Charge.
x. Vide Notification dated 21.05.2015, a Notification was

issued by the Ministry of Home Affairs, Government of India
clarifying the role of the Lieutenant Governor of Delhi and
the Council of Ministers on matters related to Public Order,
Land, Police, and Services. It was stated that on these four
subjects, the Lieutenant Governor exercised powers and
discharged functions of the Central Government. However,
with respect to Services, it was clarified that the Lieutenant
Governor of Delhi may, in his discretion, obtain the views of
the Chief Minister, GNCTD, wherever deemed appropriate.

The jurisdiction of the ACB was also clarified vide this
Notification.
Copy of the Notification of the Ministry of
Home Affairs dated 21.05.2015 is annexed herewith and

marked as ANNEXURE P-4.
xi. Even subsequent to the issuance of the Notification dated

21.05.2015, there continues to be a lack of clarity with
respect to appointments in the Services subject. It appears
that some orders have been issued by the GNCTD allegedly
without the approval of the Lieutenant Governor of Delhi,
which is apparently required for the issuance of these
Orders. Copy of the order Nos. 260 and 261 issued by the
Secretary (Services) on 25.05.2015 are annexed herewith
as ANNEXURE P-5 and Annexure P-6.
xii. It is pertinent to note that Orders Nos. 260 and 261 are the
subject matter of WP (C) 5888/2015 filed by the GNCTD
against the Union of India. Vide Order dated 29.05.2015,
the Ld Single Judge issued a direction that the Lieutenant
Governor of Delhi will deliberate upon Orders Nos. 260 and
261, and would thereafter take a decision in the matter
concerning posting of officers referred to therein. Copy of
the order of the Ld. Single Judge dated 29.05.2015 in WP
(C) 5888/2015 is annexed herewith and marked as
ANNEXURE P-7.
xiii. There was further confrontation over the decision of the

Chief Minster of the GNCTD to induct police officers from
Bihar in Delhis ACB.
xiv. A bail petition was filed before the Delhi High Court, being
Anil Sharma v. State, wherein a Head Constable of PS Sonia
Vihar was arrested by the ACB. An argument was raised
with respect to jurisdiction of the ACB. Vide judgment dated
25.05.2015, the Ld. Single Judge, while dismissed the
petition, made various observations regarding the powers of
the Lieutenant Governor of Delhi and the Legislative
Assembly of Delhi in terms of Article 239AA of the
Constitution of India. He held that this issue could not be
determined without hearing the Union of India, which was
not a party to those proceedings. Copy of the judgment
dated 25.05.2015 of the Ld Single Judge in Bail Application
878/2015 is annexed herewith and marked as ANNEXURE
P-8.
xv. An
urgent
Assembly
Session
was
convened
on
26/27.05.2015 by the Cabinet vide its decision dated

23.05.2015. During this session, a Resolution moved by a
Private Member was passed against the Notification of the
Ministry of Home Affairs dated 21.05.2015.
xvi. The Union of India filed an SLP against the judgment dated
25.05.2015. This Honble Court, vide interim order dated
29.05.2015, observed that the observations in para 66 of
the
judgment
dated
29.05.2015
pertained
to
the
Notification dated 21.05.2015, which was issued after the

judgment was reserved by the High Court. Further, the
Notification had not been argued, nor had the Union of
India, who had issued the Notification, been heard. It was
further observed that the Notification was itself under
challenge in a Writ Petition filed by the GNCTD before the
High Court. It was held that the observations made in the
judgment
dated
29.05.2015
were
tentative,
without
expressing any opinion on the validity of the Notification

dated 21.05.2015. The High Court, in the Writ Petition
challenging the Notification, was not to be influenced by the
observations made in para 66 of the judgment dated
29.05.2015. Copy of the Order of this Honble Court dated
29.05.2015 in SLP (Crl) 4774/2015 is annexed herewith and
marked as ANNEXURE P-9.
xvii.
The decision of the GNCTD to transfer Shri Dharam Pal,

Home Secretary in the GNCTD was rejected by the
Lieutenant Governor. The stand of the Lieutenant Governor
of Delhi was backed by the Ministry of Home Affairs, Union
of India, which cancelled the order of the GNCTD
transferring Shri Dharam Pal. However, the Home Minister
for the GNCTD issued a direction to not route any files

through Shri Dharam Pal.Copy of the order No. 296 dated
09.06.2015 of the Services Department, GNCTD by which
the services of Shri Dharam Pal were placed at the disposal
of the Ministry of Home Affairs is annexed herewith as
Annexure P-10 and subsequent Order No. 297 are annexed
herewith as ANNEXURE P-11.
xviii.
Due
to
the
continuing
conflict
between
the
Respondents, it is not just the administration of Delhi that is

suffering, but the health and sanitization as well. 11,000
municipal sanitation workers went on a strike for 12 days
with respect to release of salaries due to them. The strike
was only called off when the Lieutenant Governor of Delhi
finally announced that Rs. 493 crore would be released to
the capital's civic bodies today to pay their salaries. Copy of
the Press Release from Raj Niwas dated 12.06.2015 is
annexed herewith as ANNEXURE P-12.
During this entire while, the residents of Delhi have been
deprived of their basic rights to health and sanitization.
xix. The conflict between the Respondents
has spilt over into
various fields, such as electricity. In June 2015, the GNCTD

appointed three members of the AAP as Nominee Directors of
GNCTD on the Boards of BSES Rajdhani Power Limited, BSES
Yamuna Power Limited and Tata Power Delhi Distribution
Limited. However, this decision was said to have been taken

without seeking the approval of the Lieutenant Governor of
Delhi, which is a necessary prerequisite.
xx. Similarly, the Department of Power, GNCTD issued directions

to the Chairman, DERC, under Section 108 of Electricity Act,
2003 regarding disruption in electricity supply to consumers
and compensation payable in respect thereof. This issue was
also not placed before the Lieutenant Governor of Delhi.
xxi. The Department of Finance, GNCTD, issued a notification

regarding amendments in the Delhi Excise Rules, 2010. As per
the notification, amendment has been brought in respect of
Rule 152 which deals with duty on all excisable articles. The
amendment in the Rules has been made by the GNCTD in
exercise of the powers conferred by sub-Section 1 of Section
81 of the Delhi Excise Act, 2009. However, these amendments
were notified without the approval of the Lieutenant Governor
of Delhi.
xxii. The GNCTD reconstituted the Delhi Commission of Women

and appointed the Chairperson of the Delhi Commission of
Women without placing the matter before the Lieutenant
Governor of Delhi for approval. The Lieutenant Governor,
although eventually sanctioning the appointment, put forth his
protest into the procedure applied regarding the appointment.
Copy of the Notification dated 17.07.2015 issued by the

Department of Women and Child Development reconstituting
the Delhi Commission for Women is annexed herewith as
ANNEXURE P-13.
xxiii. Controversies have therefore arisen over the interpretation of

the term government as defined in various Acts, and therein
lies the nub of the conflict, with respect to whether matters
are to be placed before the Lieutenant Governor of Delhi, or
whether the GNCTD can take decisions.
xxiv. It has also been reported that the GNCTD has, without
seeking the approval of the Lieutenant Governor of Delhi,
recommended the name of a retired Chief Justice of the Delhi
High Court, for appointment as Lokayukta of Delhi, to the
Honble Chief Justice, Delhi High Court.
44.
The aforementioned instances are not exhaustive, and

other conflicts have also arisen.
45.
In
light
of
the
continuing
conflict
between
the
Respondents the present Petition is being filed on the

following amongst other:
GROUNDS
A.
FOR THAT there has been a failure of the Constitutional

machinery with respect to the NCT of Delhi.
B.
FOR THAT under the Constitution, Delhi enjoys a special

status, as was held by this Honble Court in NDMC v. State
of Punjab, (1997) 7 SCC 339 (the relevant extract is as
below)
155. Indeed, a reference to Article 239-B read with
clause (8) of Article 239-AA shows how the Union
Territory of Delhi is in a class by itself but is certainly
not a State within the meaning of Article 246 or Part VI
of the Constitution. In sum, it is also a territory
governed by clause (4) of Article 246. As pointed out by
the learned Attorney General, various Union Territories
are in different stages of evolution. Some have already
acquired Statehood and some may be on the way to it.
The fact, however, remains that those surviving as
Union Territories are governed by Article 246(4)
notwithstanding the differences in their respective setups, and Delhi, now called the National Capital
Territory of Delhi, is yet a Union Territory.
C.
FOR THAT Article 239AA of the Constitution clearly

stipulates that the Legislative Assembly of Delhi 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 such matters are applicable to Union territories.
D.
FOR THAT as per the Article 239AA of the Constitution, the

Lieutenant Governor being the nominee of the President
administers the NCT of Delhi as Administrator.
E.
FOR THAT the Administrator of Delhi, i.e. the Lieutenant

Governor has failed to carry out his Constitutional duty of
ensuring effective administration of Delhi. The Lieutenant
Governor of Delhi has an important role to play in the
administration of Delhi, and functions as a sentinel of the
Constitution.
F.
FOR THAT the Respondent No. 1 is duty bound to, but has
failed in, its duty to issue appropriate directions for the
smooth functioning of the administration in Delhi, where
there appears to be a failure in the administrative
machinery.
G.
FOR THAT due to the conflict between the Respondents

and the time and effort spent on resolving this conflict,
attention of the Respondents towards other areas are
suffering, i.e. health, sanitization, electricity, water supply,
etc.
H.
FOR THAT it is imperative that authorities under the

Constitution discharge their duties as per the provisions of
the Constitution. This conflict is adversely affecting the
rights of the citizens of Delhi to good governance,
especially in the areas of health, education, sanitation, etc.,
which are rights available to the residents of Delhi under
Article 21 of the Constitution of India.
I.
FOR THAT the doctrine of good governance requires the

Government to rise above their partisan interests and act
only in the public interest and for the welfare of its people.
J.
FOR THAT it was held by this Honble Court in Manoj

Narula v. Union of India, (2014) 9 SCC 1 that .good
governance is only in the hands of good men. No doubt,
what is good or bad is not for the court to decide: but the
court can always indicate the constitutional ethos on
goodness, good governance and purity in administration
and remind the constitutional functionaries to preserve,
protect and promote the same.
K.
FOR THAT it is settled law that it is the duty of this Court

to remind the key duty holders about their role in working
the Constitution.
L.
FOR THAT the Constitution of India cannot be thought of

without the Preambular principle of democracy and good
governance. Governance is mainly in the hands of the

Executive
M.
FOR THAT it was held by this Honble Court in Manohar

Joshi v. State of Maharashtra, (2012) 3 SCC 619, that
185.. Consequently, when the cause or issue, relates

to matters of good governance in the constitutional
sense, and there are no particular individuals or class of
persons who can be said to be injured persons, groups
of persons who may be drawn from different walks of
life, may be granted standing for canvassing the PIL..
As against that the position of a writ court when called
upon to act in protection of the rights of the citizens can
be stated to be distinct.
N.
FOR THAT this Honble Court has the power to interfere

when there is a failure to perform a legal duty, emanating
from either the discharge of a public duty, or by operation
of law.
O.
FOR THAT it has been held by this Honble Court that if the
executive is not carrying out any duty laid upon it by the
Constitution or the law, the court can certainly require the
executive to carry out such duty and this is precisely what
the court does when it entertains public interest litigation
[State of H.P. v. Parent of a Student of Medical College,
(1985) 3 SCC 169]
P.
FOR THAT it was held by this Honble Court in Almitra H.

Patel v. Union of India, (2000) 2 SCC 679 that this Honble
Court can, while dealing with the issue of keeping the city
of Delhi, direct that the local authorities, Government and
all statutory authorities must discharge their statutory
duties and obligations
Q.
FOR THAT the political and administrative structure must

preserve a balance between local governance of Delhi, and
its role as a home to the national government on the other.
R.
FOR THAT it is imperative that Article 239AA be

interpreted.
S.
FOR that it is imperative that Article 239AA be complied

with strictly, with respect to the powers of the Legislative
Assembly to make laws, and the aid and advice to be given
by the Council of Ministers vis--vis the powers conferred
on the Administrator of Delhi.
T.
FOR THAT conflicting views have been taken by this

Honble Court in Devji Vallabhbhai Tandel v. Administrator
of Goa, AIR 1982 SC 1029 and in Shamsher Singh v. State
of Punjab, AIR 1974 SC 2192 with respect to the nature of
aid and advice given by the Council of Ministers to an
Administrator of a Union Territory.
46.
The
Petitioner
has
not
filed
any
other
similar
Petitionseeking the same relief in any High Courts or this

Honble Court.
PRAYER
In view of the aforesaid facts and circumstances, the Petitioner
most respectfully prays that this Honble Court may graciously be
pleased to:
a) Issue an appropriate writ/order/direction directing the
Respondent Nos. 2 and 3 to discharge their duties under
the Constitution and other statutes.
b) Issue an appropriate writ/order/direction to respondents
ensuring effective administration and good governance in
the NCT of Delhi.
c) Issue an appropriate writ/order/direction in the nature of
mandamus directing the Respondent No. 1 and other
authorities under the Constitution to strictly comply with
Article 239AA of the Constitution of India.
d) Issue such other appropriate writ/order/directionto the

respondents that may be deemed to be justand equitable
in
the
facts
andcircumstances of the case and in the
interest of justice.
AND
FOR
THIS
ACT
OF
KINDNESSAND
JUSTICE
PETITIONERS AS IN DUTY BOUND SHALL EVER PRAY.
THE
DRAWN AND FILED BY:

PRIYA PURI
ADVOCATE FOR THE PETITIONER
DRAWN ON: 03.09.2015
Filed on:
04.09.2015

WRIT PETITION (CIVIL) No.
of 2015
IN THE MATTER OF:

Tapesh Bagati
Petitioner
versus
Union of India & Others
Respondents
AFFIDAVIT
I, Tapesh Bagati, aged about 45 years, s/o Late Sh. Major Tej
Kishan Bagati, r/o A-43, Vasant Marg (2nd Floor), Vasant Vihar,
New Delhi 110057, do hereby solemnly affirm and state as
under:
1. That I am Petitioner is a citizen of Delhi, born and brought up
and educated in Delhi. I am an entrepreneur by profession,
and a Director in various companies, and provide consultancy
to certain companies. I have been filing Income Tax Returns
since
1995.
My
annual
income
is
approximately
Rs.
1,30,23,900/- (Rupees One Crore Thirty Lakhs Twenty Three

Thousand Nine Hundred Only). My Permanent Account
Number is AERPB0022N and Voter ID card number is
NLN1690833. I am a registered voter in Delhi. There is no
civil, criminal, or revenue litigation involving me.
2. That the accompanying Petition is being filed in public

interest, with absolute bona fides, and without any personal
interest whatsoever. I have no personal gain, private motive,
or oblique reason in filing this Petition. I have not approached

any Government authority before filing the present Petition
3. That I have gone through and understood the contents of the

accompanying Synopsis and List of Dates (B to E), and the
Writ Petition (paras 1 - 46) (pages 1 -
). The same are true
and correct to the best of my knowledge and belief and

nothing material has been concealed therefrom. The Petitioner
has been drafted by the learned Counsel under and on my
instructions.
4. That the Annexures P/1 to P/9 are true copies of their

originals.
5. That the contents of my affidavit are true and correct and

nothing material has been concealed therefrom and no part is
false.
DEPONENT
VERIFICATION
Verified at New Delhi on this 03rd day of September 2015 that
the contents of the above affidavit are true and correct to the
best of my knowledge and belief and nothing material has
been concealed therefrom.
Verified at New Delhi on this 03rd day of September 2015.
DEPONDENT
ANNEXURE P-3
Power, garbage, water: Kejriwal and Jung continue their battle, but
Delhiites suffer
by Tarique Anwar Jun 20, 2015 13:25 IST
New Delhi: As the ego clash between the all powerful Lieutenant
Governor Najeeb Jung and Chief Minister Arvind Kejriwal continues,
the governance in the national capital has taken a hit with residents
being the worst sufferers.
The garbage crisis that erupted because of the MCD sanitation
workers strike in parts of the capital is the foremost example of this
fierce tussle. Working without payment since April, 12,000 safai
karamcharis of East Delhi Municipal Corporation (EDMC) and North
Delhi Municipal Corporation (NDMC) refused to work from 2 June.
Around 15,000 tonnes of wastes was left unattended in residential
areas and on roadsides for 10 days but both Kejriwal and Jung
displayed no sense of urgency to address the issue. As usual, the
Aam Aadmi Party (AAP) government in the state and the Bharatiya
Janata Party (BJP)-led government in the Centre, which is accused
of making the Lieutenant Governor dance to its tune, traded
charges at each other.
Describing the MCD as the worlds most corrupt government body,
AAP said it was running short of funds and the civic body is
controlled by the saffron party, therefore the latter should take care
of it. The Centre said it does not control the MCD directly, so the
Delhi government should leave playing politics over garbage and
release the salaries of the striking workers.
When the danger of a serious health hazard loomed large and the
Delhi High Court intervened directing the state government to clear
the salary dues of the MCD employees by 15 June, it swung into
action and released Rs 513 crore (Rs 180 crore has been given to
the EDMC and Rs 333 crore to the NDMC) to pay the April-June
salaries of the sanitation workers.
But a majority of the workers have still not got their salaries and
have decided to go on strike once again from 26 June.
Second is the issue of long and unplanned power cuts hitting the
people amid the ongoing hot and humid season.
Adding that the discoms have been directed to pay a penalty to
consumers for unscheduled power cuts at the rate of Rs 50 for first
two hours and Rs 100 for every subsequent hour, Delhi Power
Minister Satyendra Jain told Firstpost, ...the outages were not the
result of power shortage but the lack of proper distribution
infrastructure and Centre is responsible for its maintenance.
But the BJP fought back alleging that the power cuts are deliberate.
The AAP government is giving subsidy to fulfil its populist and
unrealistic promise of slashing power tariffs by 50 percent. The
scheme is applicable for those whose monthly power consumption

does not exceed 400 units. Therefore, the state government is
resorting to power cuts to ensure that the consumption does not
exceed 400 units, said Delhi BJP spokesperson Ashwini Upadhyay.
Apart from the infrastructure issues, there have been inside reports
that the power cuts and other issues are meant to defame the
Kejriwal government.
The power production is adequate to meet the demands varying
between 5,000 MW to 6,400 MW of more than 34 lakh consumers at
peak hours. Outages happen because of shutdowns and local faults.
If the transmission network is strengthened, there will be round the
clock power supply in the city. But the Centre does not want to do it
to let AAP take its credit, said a senior official close to the
development.
The tussle between the two bigwigs also has to do with who will
control the Delhi Anti-Corruption Bureau (ACB). The recent tussle
between Kejriwal and Jung over the appointment of ACB chief
Mukesh Kumar Meena had a bad effect on the graft front. Instead of
directly demanding bribe, officials at different departments have
started harassing people to force them to tilt their valets or purses.
Unfazed, the Delhi government and the Centre are apparently busy
working overtime to defame each other instead of strengthening the
fight against corruption by launching a crack down on corrupt

officials.
Acting swiftly on the corruption complaint filed against Meena by a
retired inspector of the Delhi Police, the AAP government on
Thursday forwarded the case to the Vigilance Department for further
investigation so that disciplinary action can be taken against him.
As the incident came to light, the Delhi Police, which reports to the
Union Ministry of Home Affairs, was quick to react. The allegation
levelled against Mr Meena is a decade old and has already been
probed. Raking up old issues is personal vendetta and intended to
tarnish his image, said Rajan Bhagat, spokesperson of the city
police.
Meenas appointment as ACB chief further strained the already
troubled relations of Lieutenant Governors office with the Kejriwal
government. The 1989-batch IPS officer who is a joint commissioner
rank officer took charge of the ACB from Additional Commissioner
SS Yadav, who was hand-picked by the Delhi government. Soon
after his appointment, the top cop was learnt to have been asked to
take charge at night without waiting for the next day.
Alleging a conspiracy behind the appointment, which allegedly took
place without keeping the chief minister in the loop, Deputy Chief
Minister Manish Sisodia, who is also the minister of vigilance
department, questioned Meenas credentials. He said the post of
joint commissioner was specially created to accommodate the

favourite officer. According to him, reopening of the 2002 CNG
scam and a fresh probe into it forced the Lieutenant Governor to
make the appointment. The AAP has accused Jung of protecting
bureaucrats involved in the Rs 100 crore scandal.
Sources suggest that Meena was brought in to clip the wings of ACB
Additional Commissioner Yadav, who reopened several corruption
cases, arrested around 25 senior officials and booked four police
personnel.
The issue of bureaucracy has also marred the performance of the
Delhi government with major files pending for a long time, say
insiders.
A division has erupted in bureaucracy with one group following
orders from Kejriwal and another from Lieutenant Governor Jung.
The fight has a bad fallout on the functioning of the government
with many crucial files pending approval. In addition, officers are
confused as to whom to follow as Kejriwal says files related to
regular administration wont be routed through the office of the
Lieutenant Governor, while the later says all files should pass
through him, a senior bureaucrat told Firstpost.
Another officer said the public humiliation of Power Secretary
Shakuntala Gamblin and words used by AAP leaders for civil
servants
have
demoralised
many
of
his
colleagues.
This
government has brought down the moral of officers to the extent

that it has become difficult to work. Therefore, a majority of them
have sought posting outside Delhi, he said.
An AAP MLA also accepted that the tug-of-war between the Chief
Minister and Lieutenant Governor has badly impacted governance.
Officers hamari kahan sunte... ab to aisa lagta hai ki Delhi mein
election ki zaroorat hi nahin (Officers do not listen to us...
sometimes, we feel that there is no need to hold election in Delhi),
he told Firstpost.
The AAPs pre-poll promises of constructing schools, colleges,
hospitals,
bus
depots,
parking
lots
and
regularisation
of
unauthorised colonies may also face big hurdles with the politics of
credit hitting hard.
The AAP had promised voters that on coming to the power, its
government will open hundreds of new schools, hospitals, colleges
etc. The party had claimed the people residing in the nearby villages
had assured it that they would provide land free of cost for
construction. But after coming to power, the government has raised
its hands with regard to land. It implies that it will not fulfil its prepoll promises, said Vijender Gupta, leader of opposition in Delhi
Assembly, advising the Delhi government to purchase land from
Delhi Development Authority (DDA). But it has to make detailed
plans with budgetary requirement for purchase of land. It can
approach the Central government for budget. But Mr Kejriwal is not
willing to adopt conciliatory measures. Its only purpose is to agitate

and confront the Central government and the Opposition, he
added.
Apart from these problems, the water supply issue is also a matter
of concern with the temperature soaring on a daily basis.
Despite 20,000 litre of subsidised water, many areas of the city are
devoid of drinking water facilities and wherever there are tanker
facilities, there is almost a riot-like situation to get the water.
A majority of people in these colonies said they were ready to pay
for the bills beyond the 20 kilolitre limit of subsidised water, but it
was unlikely that the Delhi Jal Board would be able to meet the
water requirement during peak summer months.
ANNEXURE P-1
On collision course: Delhi CM Kejriwal steps on L-G Jungs toes
Shishir Gupta, Hindustan Times, New Delhi
Updated Apr 01, 2015 12:42 IST
Delhi chief minister Arvind Kejriwal and lieutenant governor Najeeb
Jung are on a collision course, with the AAP leader directing that all
files pertaining to reserved subjects of police, public order and land
be routed through him.
These subjects are considered to be within the executive domain of
the lieutenant governor (L-G) in his capacity as representative of the
Centre.
The L-G, appointed by president under Article 239 and
designated as such under Article 239AA of the Constitution, is

defined as government in the National Capital Territory of Delhi
according to a 2002 order of the home ministry.
Kejriwal made his move within 11 days of being sworn in as chief
minister. On February 25, he wrote a letter to L-G Jung, drawing his
attention to often amended second proviso to Rule 45 of Transaction
of Business of the Government of NCT of Delhi rules, 1993.
Provided further that the L-G shall in respect of matters connected
with public order, police and land exercise his executive functions to
the extent delegated to him by the President, in consultation with
chief minister if it is so provided under any order issued by the
President under Article 239 of the Constitution. Kejriwal quoted the
rule in his letter. Leveraging the proviso, he went on to say In
accordance with the provision cited above, I am issuing necessary

instructions to the home Department and the land and building
department to route files pertaining to matters connected with
public order, police and land through Chief Ministers Office (CMO).
This means that Kejriwal now has a direct say in dealing with the
Delhi Police and Delhi Development Authority. The letter has been
brought to the notice of the Union Home Ministry. Senior advocate
and former Additional Solicitor General Vikas Singh said.
The
power could be exercised by the chief minister only if Parliament

further vests such power in him. Till this is done, he cant exercise
any authority in respect of these subjects.
The LG acts as a
representative of the Central Government under Article 239AA of the

Constitution.
A day before Kejriwals massive to Jung, a circular was issued by
general administration department to all the principal secretaries of
the Delhi government that all files marked to the L-G except those
pertaining to parole, should be routed through the CMO.
Kejriwals directions were reiterated by his secretary Rajendra Kumar
the next day. Files on the three reserved subjects are being routed
through Kejriwals office since then, with Raj Bhawan left awaiting
the home ministrys intervention.
Before it acts, the home ministry is examining a September 24, 1998
gamete notification that says: L-G of NCT of Delhi shall be respect
of matters connected with public order, police and services exercise
the powers and discharge the functions of the central Government

to the extent delegated to him from time to time by the President, in
consultation with the chief minister except in those cases where, for
reasons to be recorded in writing, he does not consider it expedient
to do so.
Kejriwals move to achieve statehood-if only on paper-may not last.
During my time, the chief minister never asked to see the files on
the police or such subjects. As of now, the chief minister has no say
in such matters and it is up to the L-G to decide. If now the idea is
to actually start contributing, giving suggestions which the L-G
doesnt accept, it will lead to trouble. There must be a better way of
involving the chief minister. Said Shailaja Chandra, chief secretary
of Delhi from 2002 to 2004.
Kejriwal-Jung
tussle
resumes,
this time
over
bringing cops
from Bihar
Three inspectors and two sub-inspectors of Bihar Police have joined
Delhi government's ACB after a request in this regard was sent by
the AAP government.
After a tense lull, the confrontation between Delhi government and

the Lt-Governor resumed on Tuesday with Najeeb Jung questioning
Chief Minister Arvind Kejriwals decision to induct six police officers
from Bihar in the states Anti Corruption Branch (ACB) and virtually
rejecting the appointments. Deputy CM Manish Sisodia, hit back that
his government has power to take police officers from anywhere in
the country and the Centre was making a mockery of the system.
In a statement issued on Tuesday, the Lt-Governors office said,
The Anti-Corruption Branch Delhi, being a police station, functions
under the authority, control and supervision of the Lt-Governor, a
position that has also been clarified by the Ministry of Home Affairs
in its notification of May 21, 2015.
Going by the sharp reaction from the AAP government, it is believed
that this round of fighting will be more aggressive than the previous
ones as it is related to the thorny issue of policing.
It also stated that the office of the Lt.Governor has so far not
received any proposal for the deputation of Bihar Police personnel
from outside Delhi Police.By creating a unit that primarily tackles
anti-corruption cases, a parallel unit will be established that will
accept no interference from the MHA. The Centre could not let it
happen, a senior Delhi official said. Jungs statement clarified that
even in the case of recruiting these officials, no permission was
sought from his office. The office of the Lt-Governor has so far not
received any proposal for the deputation of such personnel from
outside Delhi police. The matter will be duly examined as and when
the Lt-Governor receives the formal proposal from the Vigilance
department, the statement read. One DSP, three inspectors and
two sub-inspectors of Bihar Police have joined Delhi governments
ACB on a request from the AAP government.
The AAP attacked Lt-Governor Najeeb Jung and said that his
questioning of the ACBs move to induct officers from Bihar was
outside his purview. AAP leaders blamed the Central government

and alleged that its entire machinery was working towards
weakening the ACB. AAP leader Ashutosh said, The ACB falls
outside the purview of Lt-Governor. This morning we had this
amusing statement from the LG wherein he stated that the ACB falls
under his jurisdiction. It seems tomorrow if (US president Barack)
Obama is to probe something, he would have to take the Delhi L-Gs
permission. And this comes after the Delhi HCs order and the Delhi
Assemblys resolution displaying the will of the people.
Delhi governments media advisor Nagendra Sharma said, There
has never been a problem in seeking police officers from other
states. So why is this a problem now? We are working as per the
Constitution.
The BJP, however, was quick to respond and said the move to bring
in officers from Bihar was to humiliate existing staff of the Delhi
Police. It seems Shri Kejriwal by calling anti-corruption staff from
outside Delhi is trying to imply that Delhi Police and staff of the
Delhi government is fully corrupt and can not be trusted in the fight
against corruption. The idea seems to have come from Bihar CM Shri
Nitish Kumar who is now a close adviser of Shri Kejriwal, Delhi BJP
chief Satish Upadhyay said.
Delhi govt well within its rights on deputation issue: MHA official
New Delhi: A senior official of Ministry of Home Affairs (MHA) said
that Delhi government was well within its rights to seek officials on
deputation from Bihar. according to service rules, it can be done.
A state government can seek officers on deputation from other

states, the official said. Generally, for an Inspector-rank officer,
the L-G is not kept in loop. But looking at the past incidents, it was
expected of the AAP government to inform the L-G before clearing
the appointments since it also includes a DSP-level officer. A debate
can be raised on that but not on the legality of deputation, the
official said
ANNEXURE P-2
Shakuntala Gamlin appointment row: AAP government locks Anindo
Majumdar's office
PTI May 18, 2015, 02.58PM IST
NEW DELHI: The turf war between Lt Governor Najeeb Jung and
Chief Minister Arvind Kejriwal today turned uglier with AAP
government locking the office of a senior bureaucrat, who had
issued an order notifying the appointment of Shakuntala Gamlin as
acting chief secretary.
When Principal Secretary (Services) Anindo Majumdar reached his
office this morning, he found that it has been locked as per the
directive from Chief Minister Arvind Kejriwal's office.
Majumdar was removed from the post by Kejriwal on Saturday after
he issued the appointment letter to Gamlin following instructions
from Jung. The LG, on the same evening, had declared the order to
transfer Majumdar "void" saying it did not have his approval.
"Mazumdar is likely to take up the issue of his office being locked
with acting Chief Secretary Shakuntala Gamlin," sources said.
Yesterday, Kejriwal had accused Gamlin of trying to favour two
Reliance Infra-owned discoms through a Rs 11,000-crore loan and
said the Modi government wants AAP dispensation to "fail".
The confrontation over appointment of Gamlin as acting Chief
Secretary had turned into a full-blown war between the ruling AAP
and Jung last week with Kejriwal alleging that the LG was trying to
take over the administration.
Despite Kejriwal's strong opposition, Jung had appointed her to the
post on Friday. On Saturday, the Chief Minister had asked her not to
take charge of the post but she ignored his directive and followed
the LG's order.
Delhi Bureaucrat Shakuntala Gamlin Complains to Lieutenant
Governor Against AAP Minister
Delhi I Press Trust of India I Updated: June 01, 2015 08:17 IST
File Photo: Manish Sisodia, Jitender Tomar talk as Shakuntala
Gamlin looks on during Delhi Governments Open Cabinet meeting.
(PTI photo)
New
Delhi:
Senior
IAS
officer
Shakuntala
Gamlin,
whose
appointment as the acting chief secretary had triggered a turf war

between Delhi Lieutenant Governor and the AAP Government, has
complained to Najeeb Jung accusing Industries Minister Satyendra
Jain of putting pressure on her over conversion of industrial plots
from leasehold to freehold.
In her letter to Mr Jung, Ms Gamlin alleged that despite the fact that
land does not come under Delhi Government, the Industry Minister
put pressure on her to submit a note for the council of ministers
proposing conversion of the industrial land from leasehold to
freehold.
"The Industries Minister had been continuously pressing me to

submit a note for the Council of Ministers proposing therein
conversion of industrial plots in the city from leasehold to freehold
even after full facts pertaining to the legal ramifications of the case
that the matter was not within the competence of GNCT Delhi had
been brought to his notice," Ms Gamlin, who is Principal Secretary
(Power & Industry), said in her letter, written about two weeks ago.
The AAP government had recently accused Ms Gamlin of favouring
discoms through a Rs 11,000-crore loan. Ms Gamlin had allegedly
written the letter in response to Mr Jain's complaint against her,
before her appointment as the acting chief secretary.
"Due to oversight or otherwise, some conversion of industrial plots
had been ordered in Delhi without the involvement of land owning
agency Delhi Development Authority (DDA) and the matter is said to
be under scrutiny of the Vigilance Department of Delhi Government.
"Despite these facts having been brought to the knowledge of the

Minister, he kept pressing for a note for the Council of Ministers on
the subject and expressed his annoyance on several occasions in
this regard," she said.
The senior IAS officer also said that as per rules, the city
government is in no way involved in the administration of land
except through the Lieutenant Governor who acts in these matters
on
the
advice
of
DDA,
in
his
capacity
as
its
chairman.
"Union Home Ministry in 1961 had enunciated a policy for

acquisition, development and lease administration of lands in Delhi
for
various
purposes,"
Ms
Gamlin
wrote
in
her
letter.
The land so acquired called 'Nazul land' is required to be held in the

name of the President of India with the Lieutenant Governor being
vested with powers to administer the same.
"The Home Ministry had not identified Delhi Government (actually its
predecessor at that point of time) as one of the developers of this
land. The DDA framed rules for development and disposal of 'Nazul'
lands in 1981 which are in operation. Thus, Delhi Government is in
no way involved in the administration of "Nazul lands except through
the Lieutenant Governor who acts in these matters on the advice of
DDA, in his capacity as chairman of that authority (DDA)," she
added.
Swati Maliwal's appointment as DCW chief null and void: Najeeb
Jung
Maliwal, a Right to Information activist and wife of Aam Aadmi
Party leader Naveen Jaihind, on Monday took charge, succeeding
Barkha Singh.
In what could be another flashpoint in the long Arvind Kejriwal vs
Najeeb Jung turf war, the Delhi Lieutenant Governor rejected
the appointment of Swati Maliwal as the chief of the Delhi

Commission for Women (DCW), calling it "null and void".
Maliwal, a Right to Information activist and wife of Aam Aadmi Party

leader Naveen Jaihind, on Monday took charge, succeeding Barkha
Singh. The 30-year-old, who was a member of the India Against
Corruption anti-graft movement that preceded the AAP, had also
served as an advisor to Kejriwal .
"DCW was a kitty party aayog and that's what I am working to

finish. I will work even if I am not on this position," Maliwal said
after her appointment was rejected.
Meanwhile, the Congress and the Bharatiya Janata Party had also
criticised Kejriwal forappointing Maliwal as the DCW chief while the
ruling AAP had rejected allegations of nepotism.
The rejection of Maliwal's appointment by Jung, accused by the AAP

of being a BJP agent in the national capital, will further intensify the
acrimony between the Centre and the Delhi government. The two
had locked horns earlier on the appointment of officers in the AntiCorruption Branch and over Jung's powers to appoint key officers.
Centre-Arvind Kejriwal row: AAP attacks centre for giving L-G Najeeb
Jung upper hand to appoint bureaucrats
ET Bureau May 23, 2015, 01.01AM IST
NEW DELHI: Hours after Union Home Ministry issued a notification

on Friday morning, clearly giving an upper hand to the Lieutenant
Governor
Najeeb
Jung
for
appointing
key
bureaucrats
in Delhi government, Chief Minister Arvind Kejriwal termed it as a

"betrayal" of the people of Delhi by the BJP-led central government
on the latter's first anniversary in power.
"This notification is a betrayal of the people of Delhi. These people

have stabbed Delhi's citizens on the back," Kejriwal said while
addressing his first press conference after becoming chief minister.
Claiming that it was the 'transfer-postings' industry whose concerns
had influenced and prevailed over both Rajnath Singh and the Prime
Minister's Office, he said both of them had obliged because
"traditional contractors of BJPand Congress" went out of business
after AAP came to power. By installing favoured bureaucrats, the
Centre only wished to help the contractors.
"Ever since the formation of Delhi government, corruption has

reduced substantially in the city. This is perhaps the most honest
government in history that's taking strong action against the
corrupt. So far, 36 officers have been arrested and 152 suspended.
Wherever you go in Delhi, there is a fear in the minds of the corrupt.
This fear has given birth to this notification," he said. Citing Article
239AA of the constitution, home ministry's notification said matters
related to entries 1, 2, 18 on the state list which are public order,
police, land and services are "outside the purview of the
legislative assembly of the National Capital Territory of Delhi".
Deriving
from
this
understanding,
the
notification
adds,
"Consequently, the Government of NCT of Delhi will have no

executive power" on these aspects of governance since "power in
relation to the subjects vests exclusively in the President or his
delegate i.e., the Lieutenant Governor of Delhi".
Kejriwal tore into this aspect, claiming it was clear that this is not a
'Kejriwal v/s Jung' battle. "LG Jung is the face, but the order comes
from above. The PMO acts like the Queen of England in London,
with the Lieutenant Governor as Viceroy," he said with a flourish.
The notification was sent for printing at the government press
factory Mayapuri in west Delhi at 11.15 pm, according to people
familiar with the matter.
Attorney General Mukul Rohtagiopinion was also taken after which

the modification regarding anti-corruption branch (ACB) was done,
said officials. The home minister did not give his approval on the file
for the issue of notification to avoid political mudslinging.
However, he was kept abreast about the developments and the final
draft gazette which was sent for publication. North Block was
reportedly buzzing with activity till late night, and after several
corrections in the draft, it was decided to hold back the release of

the notification in media for Thursday. On Friday early morning, the
notification was mailed to the media houses announcing the
amendments.
Partly aware of these behind-thescenes activities, Kejriwal harked

back at AAP's unprecedented victory, alleging that BJP was
concerned that the Delhi government had been performing well and
the former was shocked ever since AAP got 67 seats and thus,
wishes to "run Delhi with three MLAs". The CM claimed that the
notification had errors and may have to be reissued. "Transferposting does not come under servicesService conditions or things
like PF come under services, according to some of the initial
feedback I have received from constitutional expert. We will get
more opinion from experts on this," he said.
ANNEXURE P-4
The Gazette of India
MINISTRY OF HOME AFFAIRS
NOTIFICATION
New Delhi, the 21st May, 2015
S.O. 1368(E) Whereas article 239 of the Constitution

provides that every Union Territory shall be administered by the
President acting, to such extent as he thinks fit, through an
administrator to be appointed by him with such designated as he
may specify;
And whereas article 239AA inserted by the Constitution (Sixtyninth Amendment) Act, 1991 provides that the Union Territory of
Delhi shall be called the National Capital Territory of Delhi and the
administrator
thereof
appointed
under
article
239
shall
be
designated as the Lieutenant Governor;

And whereas sub-clause (a) of clause (3) of article 239AA
states that 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; and whereas Entry 1 relates to
Public Order, Entry 2 relates to Police and Entry 18 relates to

Land.
And whereas sub-clause (a) of clause (3) of article 239AA also
qualifies the matters enumerated in the State List in the Concurrent
List in so far as any such matter is applicable to Union Territories.
Under this provision, a reference may be made to Entry 41 of the
State List which deals with the State Public Services, State Public
Services Commission which do not exist in the National capital
Territory of Delhi.
Further, the Union Territories Cadre consisting of Indian
Administrative Service and Indian Police Service personnel is
common to Union Territories of Delhi, Chandigrah, Andaman and
Nicobar Islands, Lakshadweep, Daman and Diu, Dadra and Nagar
Haveli, Puducherry and States of Arunanchal Pradesh, Goa and
Mizoram which is administered by the Central Government through
the Ministry of Home Affairs; and similarly DANICS and DANIPS are
common services catering to the requirement of the Union
Territories of Daman & Diu, Dadra Nagar Haveli, Andaman and
Nicobar Islands, Lakshdweep including the National Capital Territory
of Delhi which is also administered by the Central Government
through the Ministry of Home Affairs. As such, it is clear that the
National Capital Territory of Delhi does not have its own State Public
Services. Thus, Services will fall within this category.
And whereas it is well established that where there is no

legislative power, there is no executive power since executive power
is co-extensive with legislative power.
And whereas matters relating to entries 1, 2 & 18 of the State
List being Public Order, Police and Land respectively and Entries
64, 65 & 66 of that list in so far as they relate to Entries 1,2, & 18 as
also Services fall outside the purview of Legislative Assembly of the
National Capital territory of Delhi and consequently the Government
of NCT of Delhi will have no executive power in relation to the above
and further that power in relation to the aforesaid subjects vests
exclusively in the President or his delegate i.e. the Lieutenant
Governor of Delhi.
Now, therefore, in accordance with the provisions contained in
article 239 and sub-clause (a) of clause (3) of 239AA, the President
hereby directs that
(i)
Subject to his control and further orders, the Lieutenant

Governor of the National Capital Territory of Delhi; shall
in respect of matters connected with Public Order,
Land and Services as stated hereinabove, exercise the
powers and discharge the functions of the Central
Government, to the extent delegated to him from time
to time by the President.
Provided that the Lieutenant Governor of the National

Capital Territory of Delhi, in his discretion, obtain the
views of the Chief Minister of the National Capital

Territory of Delhi in regard to the matter of Services
wherever he deems it appropriate.
2.
In the Notification number F. 1/2/92-Home (P) Estt. 1750
dated 8th November, 1993, as amended vide notification dated 23rd

July, 2014 bearing No. 14036/4/2014-Delhi-I (Pt. File), for
paragraph 2 the following paragraph shall be substituted, namely:2.
This notification shall only apply to officials and

employees of the National Capital Territory of
Delhi subject to the provisions contained in the
article 239AA of the Constitution.
3.
The Anti-Corruption Branch Police Station shall

not take any cognizance of offences against
Officers, employees and functionaries of the
Central Government.
3.
This notification supersedes earlier Notifiction number S.O.
853(E) [F. No. U-11030/2/98-UTL] dated 24th September, 1998

except as respects things done or omitted to be done before such
supersession.
[F. No. 14036/04/2014-Delhi-I (Part File)]

RAKESH SINGH, Jt. Secy.
ANNEXURE PGOVERNMENT OF NCT OF DELHI

SERVICES DEPARTMENT
SERVICES I BRANCH
DELHI SECRETARIAT, NEW DELHI
F.8/05/2014/S.I/Pt.I/
Dated 25.05.2015
ORDER no. 260

The Competent Authority is pleased to order transfer/posting
of following officers with immediate effect:SI.
No.
1.
Name
of
the Present
officer (S/Shri/Ms.) Posting
Amar Nath, IAS
CEO,
DUSIB
Posted as
Remarks
Secretary
(Health)
with
additional
charge of
CEO,
DUSIB
Sh.
Arun
Baroka,
IAS
relieved of
additional
charge of
Secretary
(Health)
2.
F.O. Hashmi, IAS
3.
K.D.
DANICS
4.
Geetika
DANICS
Spl.
Secretary
(Health)
Addl.
Director
(Education)
DC, EDMC Repatriated
from
NDMC
Terms and
conditions
of
deputation
in
EDMC
will
be
settled in
due
course.
Awaiting
posting
Dogra, Addl.
Secretary
(PGMS)
Sharma, Director,
NDMC
5.
C.R. Garg, DANICS DC, West
6.
B.S.
DANICS
7.
Ajay Kumar Bisht,

DANICS
8.
Sandeep
Gulati,
Adhoc DANICS
9.
Meena
Tyagi,
Adhoc DANICS
Jaglan,
Director,
Terms and
Delhi
Jal conditions
Board
of
deputation
in DJB will
be settled
in
due
course.
Director,
DC, West
Repatriated
Delhi Jal
from DJB
Board
Director,
Addl.
Repatriated
DDA
Secretary
from DDA
(Power)
Awaiting
Asst.
Terms and
posting
Director,
conditions
Delhi
Jal of
Board
deputation
in DJB will
be settled
in
due
course
Awaiting
Dy.
posting
Secretary
(Power)
The above officers are directed to join duties today itself.

Sd/(Rajendra Kumar)
Secretary (Services)
No. F.8/05/2014/S.I/Pt.I/
Dated 25.05.2015
1.
Secretary to Lt. Governor, Govt. of NCT of Delhi
2.
Secretary to Chief Minister, Govt. of NCT of Delhi
3.
OSD to Leader of opposition, Delhi Vidhan Sabha.
4.
Secretary to Speaker, Delhi Vidhan Sabha, Delhi
5.
Secretary to Deputy Speaker, Delhi Vidhan Sabha, Delhi
6.
Secretary to Dy. Chief Minister, Govt. of NCT of Delhi
7.
Secretary to all Ministers, Govt. of NCT of Delhi, Delhi
8.
OSD to Leader of opposition, Delhi Vidhan Sabha
9.
Spl. Secretary (Services), Govt. of NCT of Delhi
10.
Officers concerned.
11.
All Principal Secretaries/Secretaries/Special Secretaries/

Additional Secretaries, Govt. of NCT of Delhi.
12.
All HODs / Local Bodies /Public Undertakings, Govt. of NCT

of Delhi.
13.
Secretary, Legislative Assembly, Govt. of NCT of Delhi
14.
OSD to Chief Secretary, govt. of NCT of Delhi
15.
Ps to Pr. Secretary (Services) /PA to Spl. Secretary

(Services)/ Jt. Secretary (Services), Govt. of NCT of Delhi.
16.
Superintendent (Coordination), Services Department, Govt.

of NCT of Delhi with the request to upload this order on
website of services Deptt.
17.
PAO concerned.
18.
All branches of Services Department.
19.
Guard file/Personal file.
Copy forwarded to the:1.
Director (Services), Govt. of India, Ministry of Home

Affairs, North Block, New Delhi.
2.
Deputy Secretary (CPS), Govt. of India, Ministry of Home

3.
Under Secretary (UTS.I), Govt. of India, Ministry of Home

4.
Research Officer, Career Management Division, Govt. of

India, Department of Personnel and Training (Room No.
215], North Block, New Delhi.
Sd/(Rajendra Kumar)
ANNEXURE P-5
GOVERNMENT OF NCT OF DELHI
SERVICES DEPARTMENT
SERVICES I BRANCH
F.8/05/2014/S.I/Pt.I/
Dated 25.05.2015
ORDER no. 261

The Competent Authority is pleased to order transfer/posting
of following officers/officials with immediate effect:SI.
No.
1.
Name of the officer Present

(S/Shri/Ms.)
Posting
Raman
Kumar W&CD
Posted as
Bharti, Gr. I (DASS)
Deptt.
Power
(DOB: 30.12.1966)
2.
Narain Singh, Gr.II PAO

DASS
Health
(DOB:
09.11.1964)
3.
Gopal Krishan, Gr.II DCO

DASS
Power
(DOB:
14.12.1958)
4.
Amar
Pal
Singh Awaiting
Chauhan,
Gr.III Posting
(DASS)
(DOB:
Health
01.11.1971)
5.
Pramod
Pathik, Awaiting
Gr.III (DASS) (DOB: posting
Urban
Develo-
Remarks
6.
01.10.1974)
pment
Rajan Kaushik Gr. III Awaiting
Finance
(DASS)
(DOB: posting
24.11.1969)
7.
Lalita, Gr.III (DASS) Awaiting

(DOB: 02.05.1971)
8.
posting
Seema Jain, Gr.III Awaiting

(DASS)
Power
Power
(DOB: posting
22.11.1965)
9.
Brij
Mohan
Gupta, Awaiting
Home
Gr.III (DASS) (DOB: posting

18.01.1969)
The above officers/officials are directed to join duties today

itself.
Sd/(Rajendra Kumar)
Order No. 261

No. F.8/05/2014/S.I/Pt.I/
Dated 25.05.2015
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Officers concerned.
11.

12.
All HODs / Local Bodies /Public Undertakings, Govt. of

NCT of Delhi.
13.
14.
OSD to Chief Secretary, govt. of NCT of Delhi
15.
Ps to Pr. Secretary (Services) /PA to Spl. Secretary

(Services)/ Jt. Secretary (Services), Govt. of NCT of
Delhi.
16.
Superintendent (Coordination), Services Department,

Govt. of NCT of Delhi with the request to upload this
order on website of services Deptt.
17.
PAO concerned.
18.
19.

2.
Deputy Secretary (CPS), Govt. of India, Ministry of

Home Affairs, North Block, New Delhi.
3.
Under Secretary (UTS.I), Govt. of India, Ministry of

4.

Sd/(Rajendra Kumar)
ANNEXURE P-7
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P. NO. 5888/2015
GOVERNMENT OF NATIONAL CAPITAL

TERRITORY OF DELHI
Through:
Petitioner
Ms. Indira Jaising, Mr. Dayan Krishnan and

Mr. H.S. Phoolka, Sr. Advocates with
Ms. Bindu N. Doddahatti, Mr. Raman Duggal,
Standing Counsel, Mr. Rishikesh Kumar,
Ms. Neha Rastogi, Mr. Rahul Mehara,
Mr. Somnath Bharti and Mr. Amitananda Chakavarthy,
Mr. Naushad Ahmed Khan, ASC, Mr. Sudhir Kumar,
Mr. Anish Shrestha and Ms. Aayudhi Gupta
Versus
UNION OF INDIA
Through:
Respondent
Mr. Sanjay Jain, ASG with Mr. Akshay Makhija,

Mr. Sanjugeeta Moktan, Ms. Mahima Behl,
Mr. ritin Rai, Mr. Shreshth Jain, Mr. Akash Nagar,
Mr. Vidur Mohan, Mr. Rajul Jain and
Ms. Sadhvi Moindru, Advocates
CORAM:
HONBLE MR. JUSTICE RAJIV SHAKDHER
ORDER
29.05.2015
CM No. 10643/2015 (Exemption)
1.
Allowed subject to just exceptions.
2.
Issue notice to the respondent.
3.
Mr. Makhija accepts notice on behalf of the respondent.
4.
Counter affidavit, if any, be filed within four weeks. Rejoinder

thereto, if any, be filed before the next date of hearing.
5.
After having heard Ms. Jaising, the learned senior counsel for
the petitioner, for some time, and also, Mr. Jain, the learned
ASG, it is thought fit that, without prejudice to the rights and
contentions of both parties, the following directions are
issued.
Both parties are agreed to the directions that this
court intends to issue.

5.1
The Lt. Governor will deliberate upon order no. 260 and 261
of even dated i.e. 25.05.2015 and, would thereafter, take a
decision in the matter concerning posting of officers referred
to therein.
5.2
In case, for this purpose, any information is required, the

same shall be requisitioned by the Lt. Governor.
6.
List on 11.08.2015.
7.
Dasti.
RAJIV SHAKDHER, J
MAY 29, 2015
ANNEXURE P-9
ITEM NO.10
COURT NO.2
SECTION II
SUPREMECOURTOFINDIA
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.)...... CRLMP No(s).

9599/2015
(Arising out of impugned final
judgment and order
dated
25/05/2015 in BA No. 878/2015 passed by the High Court Of Delhi

At New Delhi)
UNION OF INDIA
Petitioner(s)
VERSUS
GOVT. OF NCT OF DELHI AND ANR.
Respondent(s)
(With appln. for permission to file SLP)

Date : 29/05/2015 This petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE A.K. SIKRI
HON'BLE MR. JUSTICE UDAY UMESH LALIT
(Vacation Bench)
For Petitioner(s)
Mr. Ranjit Kumar, S.G.

Ms. Pinky Anand, ASG.
Mr. Maninder Singh, Sr.Adv.
Ms. Vmohna, Sr.Adv.
Mr. Ritin Rai, Adv.
Ms. Binu Tamta, Adv.
Ms. Sadhvi M., Adv.
Mr. Aman Sinha, Adv.
Ms. Sushma Suri, Adv.
Ms. Kritika Sachdeva, Adv.
For Respondent(s)
Mr. Parag P. Tripathi, Sr. Adv.

Mr. Dayan Krishna, Sr. Adv.
Mr. Rahul Mehra, Adv.
Mr. H.S.Phoolka, Adv.
Mr. J.S.Chhabra, Adv.
Mr. Chirag M. Shroff, Adv.
Mr. Gautam Narayan, Adv.
Ms. Mahima Shroff, Adv.
Mr. Kunal Bahri, Adv.
Mr. V.Sinha, Adv.
Ms. Swati Vaibhav, Adv.
UPON hearing the counsel the Court made the following

ORDER
Permission to file SLP is granted.
Issue notice.
Mr. Chirag M. Shroff, learned counsel accepts notice.
Notice need not be issued to respondent No.2.
Counter affidavit may be filed within six weeks. Rejoinder, if
any, be filed within four weeks thereafter. Issue notice on
application for stay.
Learned Solicitor General prays for stay of observations made
in paras 44 as well as 65 to 67. Since we are issuing notice,
aforesaid prayer will be considered after the reply is filed within
three weeks.
However, insofar as observations made in para 66 are

concerned, we find that they pertain to Notification bearing No.
1368 (E) issued on 21.5.2015 which was issued after the judgment
was reserved by the High Court. Neither the Union of India was
party who had issued this Notification nor was there any occasion to
any hearing on the said Notification. We are also informed that this
Notification has been challenged by the respondent No.1 by filing
the Writ Petition in the High Court under Art.226 of the Constitution.
We, therefore, clarify that the observations made therein were
only tentative in nature without expressing any opinion on the
validity of Notification dated 21.5.2015 and it would be open to the
High Court to deal with the said petition independently without
being influenced by any observations made in para 66, or for that
matter in other paragraphs of the impugned order.
(SUMAN WADHWA)
AR-cum-PS
(SUMAN JAIN)
COURT MASTER
ANNEXURE P-10

SERVICES DEPARTMENT
SERVICES-I BRANCH
No. F.8/05/2014/S.I/Pt.1/
Dated 09.06.2015
ORDER No. 296

The competent authority is pleased to order that the services
of Shri Dharam Pal, IAS (AGMUT:88) are placed at the disposal of
Ministry of Home Affairs with effect from 09.06.2015 (afternoon), for
further posting.
Sd/(Rajandra Kumar)
No. F.8/05/2014/S.I/Pt.I
Dated 09.06.2015
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Officers concerned.
11.

12.
All HODs / Local Bodies /Public Undertakings, Govt. of NCT

of Delhi.
13.
14.
OSD to Chief Secretary, Govt. of NCT of Delhi
15.
PS to Pr. Secretary (Services) /PA to Spl. Secretary

(Services)/ Jt. Secretary (Services), Govt. of NCT of Delhi.
16.
Superintendent (Coordination), Services Department, Govt.

of NCT of Delhi with the request to upload this order on
website of services Deptt.
17.
PAO concerned.
18.
19.

2.
Deputy Secretary (CPS), Govt. of India, Ministry of Home

3.
Under Secretary (UTS.I), Govt. of India, Ministry of Home

4.

Sd/(Rajendra Kumar)
ANNEXURE P-11
SERVICES DEPARTMENT
SERVICES-I BRANCH
No. F.8/05/2014/S.I/Pt.1/
Dated 09.06.2015
ORDER No. 297

The competent authority is pleased to order that on reversion
of Shri Dharam Pal, IAS (AGMUT: 88) vide Order No. 296, Shri
Rajendra Kumar, IAS (AGMUT:89) shall look after the charge of
Secretary(Home), and Shri Ashwani Kumar, IAS (AGMUT: 92) shall
look after the charge of Secretary (Land & Building), with effect
from 09.06.2015 (afternoon) till regular arrangements in this regard
are made after due concurrence of Ministry of Home Affairs.
Sd/(Rajendra Kumar)
No. F.8/05/2014/S.I/Pt.I/
Dated 09.06.2015
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Officers concerned.
11.

12.
All HODs / Local Bodies /Public Undertakings, Govt. of

NCT of Delhi.
13.
14.
OSD to Chief Secretary, Govt. of NCT of Delhi
15.
PS to Pr. Secretary (Services) /PA to Spl. Secretary

(Services)/ Jt. Secretary (Services), Govt. of NCT of
Delhi.
16.
Superintendent (Coordination), Services Department,

Govt. of NCT of Delhi with the request to upload this
order on website of services Deptt.
17.
PAO concerned.
18.
19.

2.
Deputy Secretary (CPS), Govt. of India, Ministry of

3.
Under Secretary (UTS.I), Govt. of India, Ministry of

4.

Sd/(Rajendra Kumar)
ANNEXURE P-12
RAJ NIWAS
IMPORTANT PRESS RELEASE
12 June 2015
The Lt. Governor met with all the three Mayors and
Commissioners of the Municipal Corporations today. He informed
them that the Government of Delhi would be releasing Rs. 493
Crores today.
He appealed to the Mayors to persuade the employees to call
of the strike in the interest of the citizens of Delhi.
While
appreciating the pain that the safai karamcharies have gone through
for lack of payment of salaries, he appeals to them that despite the
hardships they have faced, they may call off the strike. This will be
in the greater interest of the citizens of this great city that belongs
to all of us.
ANNEXURE P-13
(TO BE PUBLISHED IN PART IV OF DELHI GAZETTE EXTRA OR
DEPARTMENT OF WOMEN & CHILD DEVELOPMENT
GOVT. OF NCT OF DELHI
(WOMEN EMPOWERMENT CELL)
I-A, PANDIT RAVI SHANKAR SHUKLA LANE, K.G. MARG, NEW DELHI
No. 60(59)/DWCD/ADWEC/Vol.-I/15824-845
Dated 17/07/2015
NOTIFICATION
No. 60(59)/DWCD/ADWEC/Vol.IV/. In exercise of the powers

conferred by Section 3 of the Delhi Commission for Women Act,
1994 (Delhi Act 8 of 1994), the Government of National Capital
Territory of Delhi hereby reconstitutes the Delhi Commission for
Women for the National Capital Territory of Delhi consisting of the
following persons with effect from 18.07.2015 namely:1.
Ms. Swati Maliwal

B-635, Avantika, Rohini,
Sector-1, New delhi-110085
(Chairperson)
2.
Ms. Promila gupta

16A, Old Market, Timarpur,,
Delhi -110054
Member
3.
Ms. Fraheen Malick

G-2, Hamdard University Campus
Hamdard Nagar, New Delhi
Member
4.
Ms. Sarika Chaudhary

Room No. 600, AIWC Hostel
6, Bhagwandas Road,
Member
Mandi House, New Delhi
The Chairperson and the Members of the Commission shall

hold office for three years as provided under Section 4 of the Delhi
Commission for Women Act, 1994
This is in supersession of all previous notifications issued in
this behalf.
By Order and in the Name of the

Lt. Governor of the National
Capital Territory of Delhi
Sd/(Sushil Singh)
Joint Director
Department of Women & Child Development
No. 60(59)/DWCD/ADWEC/Vol.-IV/15824-825
Dated 17.07.2015
Copy forwarded to:1.
The Princi;al Secretary to Lt. Governor, L.G. House, Rajpur

Road, Delhi Secretariat, Delhi
2.
Secretary to the Speaker of Vidhan Sabha, Vidhan Sabha

Building, Delhi
3.
Secretary to Chief Minister, 2nd Level, Delhi Secretariat,

Delhi
4.
The Chairperson, Delhi Commission for Women, 2nd Floor,

C-Block, Vikas Bhawan, I.P. Estate, New Delhi
5.
All the members of Delhi Commission for Women, 2nd

Floor, C-Block, Vikas Bhawan, I.P. Estate, New Delhi
6.
Secretary to Dy. Speaker of Vidhan Sabha, Vidhan Sabha

Building, Delhi Secretariat, Delhi
7.
Secretary to Minister of Social Welfare, GNCT of Delhi,

Delhi Secretariat, I.P. Estate, New Delhi
8.
Secretary to Minister of Women & Child Development,

GNCT of Delhi, Delhi Secretariat, New Delhi
9.
Secretary to Minister of Social Welfare, GNCT of Delhi,

10.
Secretary to Minister of Finance, GNCT of Delhi, Delhi

Secretariat, I.P. Estate, New Delhi
11.
Secretary to Minister of Industries, GNCT of Delhi, Delhi

Secretariat, I.P. Estate, New Delhi
12.
Secretary to Minister of Education, Training & Tech

Education, GNCT of Delhi, Delhi Secretariat, I.P. Estate,
New Delhi
13.
Secretary to Minister of Food & Civil Supplies, GNCT of

Delhi, Delhi Secretariat, I.P. Estate, New Delhi
14.
Pr. Secretary to Law, Justice and Legal Affairs, GNCTD,

15.
OSD to Chief Secretary Delhi GNCTof Delhi, Delhi

Secretariat, Delhi
16.
Dy. Secretary to Govt of India, M/o Women & Child

Development, Jeevan Deep Building, New Deljhi
17.
Dy. Secretary, G.A.D. Delhi Secretariat, Delhi (2 copies) for

publication in Part IV of Delhi Gazette Extraordinary.
Sd/(Sushil Singh)
Joint Director
Department of Women & Child Development
IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: 20.05.2015
Judgment delivered on: 25.05.2015
BAIL APPLN. 878/2015
ANIL KUMAR
Through: Mr. N. Hariharan, Senior Advocate
..... Applicant
along with Mr. Rajiv Mohan, Mr. Siddharth

S. Yadav & Mr. Sahil Paul, Advocates.
Versus
GNCT OF DELHI
Through:
..... Respondent
Mr. Dayan Krishnan, Senior Advocate along
with Mr. Rajat Katyal, APP and Inspector
Arun Chouhan, PS A.C. Branch, for the State.
CORAM: HON'BLE MR. JUSTICE VIPIN SANGHI

JUDGMENT
VIPIN SANGHI, J.
1. The present bail application has been
preferred under Section 439 Cr.P.C. to
seek
regular
bail
in
case
First
Information Report (FIR) No.15/2015

registered at Police Station (PS) Anti
Corruption Branch (ACB), Civil Lines
under Sections 7/ 13 of the Prevention
of Corruption Act (PC Act) read with
Sections 34/120-B/201 I.P.C.
2.
The aforesaid FIR has been preferred on the complaint of one
Javed S/o Khalil, who stated that he is running business of sale &
purchase of used cars from Darya Ganj. ASI Amar Singh, HC Anil
Kumar the applicant, and the Constable Sarvan, were posted at PS
Sonia Vihar. They were creating troubles for him by claiming that
he was running an illegal business. Javed stated that he was being
threatened with arrest in some cases. On 30.04.2015, at 08:30 p.m.
Constable Sarvan came to the office of Javed and demanded
Rs.20,000/- from him for not arresting him in a case. Javed claims to
have replied that he was having only Rs.10,000/- and he told Sarvan
that the remaining amount would be given in the presence of Amar
Singh and HC Anil Kumar the applicant. On this, according to
Javed, Sarvan left the workshop after receiving Rs.10,000/- by
saying that on 01.05.2015 the complainant should reach near Balaji
Properties, Near Traffic Light, Bhajanpura at 04:00 p.m. with the
remaining amount. The complainant stated that he was against
corruption. He stated that he did not have any personal enmity with
ASI Amar Singh, HC Anil Kumar the applicant, and the Constable
Sarvan and he had no monetary transaction with them. He stated
that he was giving the money under compulsion. The complainant
claimed that he had recorded the voice of Constable Sarvan in his
mobile phone and in the conversation, Constable Sarvan had asked
the complainant to bring the remaining amount of Rs.10,000/- on
the following day because HC Anil Kumar and ASI Amar Singh had
demanded their share from the amount. He produced Rs.10,000/-
comprising of 10 notes of Rs.1,000/- each and he demanded legal

action be taken against the three persons.
3.
As per the FIR, the panch witness Sh. Raj Prakash working as
Assistant
Secretary
II,
Delhi
Agricultural
Marketing
Board,
Government of National Capital Territory of Delhi (GNCTD),

Institutional Area, Pankha Road, Janakpuri, New Delhi signed the
said complaint. Thereafter, the preraid proceedings were drawn up;
the Phenolphthalein powder was applied on the GC notes and its
test was explained to the complainant and the panch witness by
giving a demonstration, and the complainant was instructed to
remain close to the panch witness, so that he is able to see and
hear the transaction of giving and acceptance of bribe amount. The
complainant was instructed to give the money only upon the
demand, and not otherwise. The panch witness was also instructed
that upon satisfaction that the bribe amount has been accepted by
the accused on demand, he should raise his right hand over his
head to give a signal to the raiding party. The Raid Officer along
with his team left the ACB at 04:00 p.m. At about 04:45 p.m., the
Raid Officer with his staff reached near Balaji Properties at a
distance of 100 metres from the Traffic Light. The complainant and
the panch witness were sent ahead with suitable instructions, while
the Raid Officer and the other members of the raiding party followed
them from some distance. At about 04:45 p.m. the complainant and
the panch witness entered the plot of Balaji Properties and at about
05:00 p.m. the panch witness came out and gave the pre-planned
signal. On receipt of the signal, the Raid Officer and the other
members of the raiding party immediately rushed to, and reached
the spot where the complainant and the panch witness were
present. The complainant pointed out towards a person whose name
was later revealed as Anil Kumar the applicant. The complainant
stated that the applicant is an associate of Sarvan and Amar Singh.
4. The applicant Anil Kumar tried to slip away from the spot, but
was apprehended by the Raid Officer with the help of the raiding
party. Upon disclosure of the identity of the Raid Officer, the
applicant became perplexed. The applicant was told that his search
was required to be taken and if he so wish as, he could take the
search of the Raid Officer or of the members of the raiding party.
On hearing the name of ACB, the applicant got frightened and
refused to search. On the instructions of the Raid Officer, the panch
witness took search of HC Anil Kumar the applicant. However, the
bribe amount was not recovered from him.
5.
The panch witness was examined and he informed that he
had accompanied Javed the complainant, and reached the room

on the back side of the said property. One person was present in the
room, who identified the complainant and enquired from the
complainant about the identity of the panch witness. Javed told him
that the panch witness was his relative from Muzaffar Nagar.
Thereafter, that person demanded Rs.10,000/-. Javed called that
person as Sarvan. Javed told Sarvan that the amount of Rs.10,000/was for all the three, i.e. ASI Amar Singh, HC Anil Kumar the
applicant and Sarvan. The complainant asked Sarvan to call ASI

Amar Singh and HC Anil Kumar. On this Sarvan stated that both of
them were present at the spot. Javed was asked to give the money
to Sarvan, who stated that he would distribute the same amongst
themselves. Javed took out the bribe amount from his pocket.
Sarvan received the bribe amount through his right hand and put
the same in the right pocket of his pant. The panch witness also
stated that the complainant Javed was repeatedly asking Sarvan to
call HC Anil Kumar & ASI Amar Singh, which made Sarvan suspicious
and he asked as to why he was repeatedly insisting for calling both
of them. Sarvan stated that he would call both of them and then he
left the room at a fast pace and escaped from the plot. The panch
witness also disclosed that while coming out of the room, Sarvan
made gestures towards a person who was seated outside on a chair.
That person also followed Sarvan at a fast pace. The complainant
identified the person following Sarvan as ASI Amar Singh. Both
these persons managed to escape from the plot. The panch witness
also informed that when he came out from the room, these persons
were not present there. The panch witness also informed that the
complainant Javed pointed out towards a person who was going out
of the plot, and informed that he is HC Anil Kumar the applicant.
On this, the panch witness immediately gave the pre-planned signal.
The raiding party rushed towards the spot. Javed pointed out HC
Anil Kumar the applicant to the raiding party. The raiding party
overpowered the applicant HC Anil Kumar. The panch witness also
stated that on the instructions of the Raid Officer, he took search of

HC Anil Kumar the applicant, but the bribe amount was not
recovered from his possession because Constable Sarvan along with
ASI Amar Singh had managed to escape with the bribe amount.
6.
The FIR narrates the further action taken on the complaint.
The Raid Officer, his party, the complainant, the panch witness and
HC Anil Kumar the applicant made efforts to trace Constable
Sarvan and ASI Amar Singh but they could not be traced. No person
could be contacted to give a lead about them. Consequently, the
Raid Officer came back to the ACB. The Rukka was prepared for
offences under Sections 7 & 13 of the PC Act read with Section 120B/ 34/ 201 I.P.C., on which the FIR was registered. The applicant
was, consequently, taken into custody.
7.
The submission of Mr. Hariharan, learned senior counsel for
the applicant is, firstly, that the above narration would show that no
case is made out against the applicant. Neither the applicant is
claimed to have made a demand of illegal gratification from the
complainant, nor did he accept any illegal gratification from the
complainant during the trap proceedings, nor the GC notes were
recovered from the applicant. The applicant has been implicated
only on the basis of the statement of the complainant who is
himself a discredited person, having several cases against him, and
on the basis of the allegation that Sarvan claimed that his demand
for bribe was made not just for himself, but also on behalf of the
applicant and ASI Amar Singh.
8.
Mr. Hariharan submits that mere presence of the applicant in
the area of Balaji Properties is not sufficient to implicate the

applicant, since he was engaged in apprehending proclaimed
offenders and was duty bound to keep a tap in the area within his
jurisdiction.
9.
Mr. Hariharan submits that for invoking Section 120-B of the
I.P.C. and alleging existence of a criminal conspiracy, there has to

be a prior meeting of mind between the accused, which is
completely missing even on a perusal of the FIR in question.
10.
Mr.
Hariharan
submits
that
qua
the
applicant,
the
investigation is complete and there is no useful purpose to be served

in keeping him in custody any longer.
11.
Mr. Hariharan further submits that the ACB of the GNCTD is,
even otherwise, incompetent to act on the complaint of the

complainant Javed; to lay the trap; to register the FIR; to
investigate the offence; to arrest the applicant, or; to prosecute the
petitioner, since he is not an employee or functionary of the GNCTD.
The submission is founded upon the constitutional and legal
framework existing qua the Union Territory of Delhi.
12.
Mr. Hariharan submits that the Union Territory of Delhi is
called the National Capital Territory of Delhi (NCTD) and the

Administrator thereof is called the Lt. Governor of Delhi by virtue of
Article 239 AA (1) of the Constitution of India. Sub-Article 2(a)
states that there shall be a Legislative Assembly for the National
Capital Territory (NCT), and the seats in such Assembly shall be

filled by members chosen by direct election from territorial
constituencies in NCT. Sub-Article (3)(a) of Article 239 AA states:
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 Entry 64, 65
and 66 of that List in so far as they relate to said Entries 1, 2 and
18.
13.
Mr.
Hariharan
submits
that,
therefore,
the
Legislative
Assembly of National Capital Territory of Delhi is incompetent to

make laws in relation to the Entries 1 and 2 of the State List which
are:
1. Public order (but not including the use of any naval,
military or air force or any other armed force of the
Union or of any other force subject to the control of the
Union or of any contingent or unit thereof in aid of the
civil power).
2.
Police (including railway and village police)
subject to the provisions of entry 2A of List I.

14.
Mr.
Hariharan
submits
that
Police
stands
specifically excluded from the legislative competence of
the Legislative Assembly of the NCT. The executive

power of the GNCTD extends to the legislative power of
the Legislative Assembly. Thus, the ACB of GNCTD is
not competent to take action in respect of Delhi Police
officers, which is not a Police force of the NCTD. Mr.
Hariharan submits that the administrative, disciplinary
and financial control over the Delhi Police vests in the
Union Government and not in the GNCTD. He has also
referred to Section 41 of the Government of National
Capital Territory of Delhi Act, 1991 (GNCTD Act) which,
inter alia, states that the Lieutenant Governor shall act
in his discretion in matters which fall outside the
purview of the powers conferred on the Legislative
Assembly, but in respect of which powers and functions
are entrusted or delegated to him by the President. Mr.
Hariharan submits that it is the Union Government,
acting through its delegate namely the Lieutenant
Governor, who is empowered to exercise his discretion
in the matter.
15.
On 08.11.1993 the Lieutenant Governor of NCT of
Delhi issued a notification. Insofar as it is relevant, it

reads as follows:
NOTIFICATION No.F.1(21) /92-Home(P) Estt. In
supersession of this Govt.s Notification No. F.12(7) /86HP-II dated 1.8.86 and in exercise of the powers
conferred by Section 2(s) of the Code of Criminal

Procedure Code, 1973 (No.II of 1974) read with the
Govt. of India, Ministry of Home Affairs Notification
No.U- 11011/2/74-UTL (i) dated 20.3.74, the Lt.
Governor of the National Capital Territory of Delhi
hereby declares that AntiCorruption Branch, Govt. of
N.C.T. of Delhi at Old Secretariat, Delhi to be a Police
Station for:
i)Offences under the Prevention of Corruption Act
(No.49), 1988 and
ii)
Attempts,
abetment
and
conspiracies
in
relation to or in connection with the aforesaid

offences and any other offence committed in the
course of same transaction arising out of the
same set of facts, and it shall have jurisdiction all
over the National Capital Territory of Delhi. By
order and in the Name of Lt. Governor of Govt. of
N.C.T. of Delhi.
16.
Mr. Hariharan submits that the aforesaid notification dated
08.11.1993 has been amended vide notification dated 23.07.2014

issued by the Ministry of Home Affairs, being SO No.1896(E), in
pursuance of Section 21 of the General Clauses Act read with
Government of India, Ministry of Home Affairs notification No.183/A
dated 20.03.1974. The notification dated 23.07.2014, inter alia,

states:
having regard to the guidelines issued by the Central
Vigilance Commission over the jurisdiction of the Central
Bureau of Investigation and the Anti-Corruption Branch,
Government of National Capital Territory of Delhi, the
Central
Government
hereby
declares
that
the
notification number F.1/21/92- Home (P) Estt.1750,

dated the 8th November, 1993 issued by the Lieutenant
Governor of the National Capital Territory of Delhi shall
be applicable to the officers and employees of that
Government only and for that purpose amends the said
notification, namely:
In the said notification, after the existing paragraph, the
following paragraph shall be inserted, namely:
2 This notification shall apply to the officers and
employees of the Government of National Capital
Territory of Delhi.
17.
The submission is that the ACB of the GNCTD was declared to
be a Police Station under Section 2(s) of the Cr.P.C., with powers to

deal with offences under the PC Act by virtue of the notification
dated 08.11.1993. The same stands amended on 23.07.2014 issued
by the Ministry of Home Affairs, Government of India. After
amendment by the 23.07.2014 notification, the ACB is now
empowered to exercise jurisdiction only in respect of the officers

and employees of the GNCTD, and not in relation to officers of the
Delhi Police, since the officers and employees of Delhi Police are not
employees of the GNCTD. Mr. Hariharan submits that the
notification dated 23.07.2014 has been issued in exercise of the
executive power of the Union Government. Mr. Hariharan, lastly,
submits that, in any event, after the ACB of the GNCTD had laid the
trap, the investigation should have been entrusted to the
appropriate authority viz. the Vigilance Department of Delhi Police,
which deals with complaints under the Prevention of Corruption Act,
or to the CBI.
18.
On the other hand, the State represented through Mr. Dayan
Krishnan, Senior Advocate has opposed the present bail application.

On the merits, he has referred to the status report filed by the State.
The status report discloses that during the course of investigation,
mobile phone of the complainant and the compact disks of the
recordings of the conversation between the complainant and Sarvan
have been seized in accordance with law, and a certificate under
Section 65-B of the Evidence issued. The complainant had recorded
the telephonic conversation that he had with Sarvan before and
after the raid. In the said telephonic recorded conversation, the
name of the petitioner is categorically surfacing as one of the
persons who had demanded the bribe from the complainant. The
transcript of the conversation which is stated to have been taken
place between Sarvan and the complainant, points towards the
conspiracy hatched by the applicant, ASI Amar Singh and Sarvan to

demand and accept bribe from the complainant. Mr. Krishnan
submits that, pertinently, the applicant was apprehended from the
spot, which is the office of a property dealer Balaji Properties. The
place of apprehension, namely Balaji Properties falls outside the
jurisdiction of PS Sonia Vihar, where the applicant and the other
two accused persons are posted. It is argued that there was no
occasion for the applicant to be present on the property of Balaji
Properties in his duty hours at the time of the raid. The involvement
of the applicant in the conspiracy is, therefore, evident. It is further
submitted that the Call Detail Records (CDR) and the records of the
Cell ID Towers suggests the presence of the applicant in the area of
Balaji Properties at the relevant time. It is pointed out that the
applicant had claimed that he was in the area of Nanaksar
Gurudwara at the relevant time, which is not substantiated by the
Cell ID Towers.
19.
Mr. Krishnan submits that the applicant being a Police Officer
has immense clout and releasing him on bail at this stage would
hamper the investigation and there is apprehension that the
prosecution witnesses may also turn hostile. It is submitted that the
other two accused are on the run.
20.
To meet the argument of Mr. Hariharan with regard to the
competence, or lack of it, of the ACB of GNCTD to act in the matter,

Mr. Krishnan has also referred to Article 239 AA(3)(a). He submits
that the legislative power of the Legislative Assembly and,
consequently, the executive power of the GNCTD in relation to

investigation of a crime stems from Entries 1 and 2 of the
Concurrent List of the Seventh Schedule. These Entries read as
follows:
1. Criminal law, including all matters included in the Indian
Penal Code at the commencement of this Constitution but
excluding offences against laws with respect to any of the
matters specified in List I or List II and excluding the use of
naval, military or air forces or any other armed forces of the
Union in aid of the civil power. (emphasis supplied)
2. Criminal procedure, including all matters included in the
Code of Criminal Procedure at the commencement of this
Constitution.
21.
Mr. Krishnan submits that earlier the offences which are
now covered by the PC Act, formed part of the I.P.C. itself, namely
Sections 161 to 165A. Upon enactment of the PC Act, Sections 161
to 165A of the I.P.C. were repealed. It is submitted that the
competence of the Legislative Assembly of the NCT to legislate, and,
consequently, the executive power of the GNCTD extends to deal
with criminal law, including all matters included in the I.P.C. at the
commencement of the Constitution. The matters viz. the offences
under the Prevention of Corruption Act are not offences against any
laws with respect to any of the matters specified in List I or List II.
The said matter does not concern use of naval, military or air force
or any other armed forces of the Union in aid of the civil power.
Thus, the power of the GNCTD extends to cases falling under the PC
Act. The executive power of GNCTD extends to criminal procedure,
including all matters including in the Code of Criminal Procedure at
the commencement of the Constitution.
22.
Mr. Krishnan also refers to Section 17 of the PC Act, which
specifies the rank of Police officers who are empowered to

investigate any offence punishable under the said Act. He submits
that a perusal of Section 17 would show that it is not only the
specified officers of the Central Bureau of Investigation (CBI)
which is established under the Delhi Special Police Establishment
Act, 1946 (DSPE Act), who are empowered to act under the PC Act,
the Police Officers of the specified ranks are also authorized to act in
the matter. It is pointed out that the officers of the ACB of GNCTD
are also police officers, drawn from the Delhi Police holding the
specified ranks.
23.
Mr. Krishnan submits that the notification dated 23.07.2014
itself refers to the guidelines issued by the Central Vigilance

Commission (CVC) on the aspect of jurisdiction of the CBI, and ACB,
GNCTD. The said guidelines, insofar as they are relevant, read as
follows
1.5.2 The Special Police Establishment enjoys with the
respective
State
Police
Force
concurrent
powers
of
investigation and prosecution under the Criminal Procedure
Code.
However,
to
avoid
duplication
of
effort,
an
administrative arrangement has been arrived at with the State

Governments according to which:
(a)
Cases, which substantially and essentially concern

Central Government employees or the affairs of
the Central Government, even though involving
State
Government
employees,
are
to
be
investigated by the SPE. The State Police is,

however, kept informed of such cases and will
render necessary assistance to the SPE during
investigation;
(b)
Cases, which substantially and essentially involve

State Government employees or relate to the
affairs of a State Government, even though
involving certain Central Government employees,
are investigated by the State Police. The SPE is
informed of such cases and it extends assistance
to the State Police during investigation, if
necessary. When the investigation made by the
State Police authorities in such cases involves a
Central Government employee, the requests for
sanction
for
prosecution
of
the
competent
authority of the Central Government will be

routed through the SPE. [Emphasis supplied]
24.
Thus,
Mr.
Krishnan
submits
that
the
CVC
guidelines recognize the fact that the power of

investigation and prosecution under the Cr PC of
the CBI and the police force are concurrent. It is
only an administrative arrangement which has
been arrived at with State Governments, to
demarcate the nature of cases that one or the
other agency may investigate and prosecute.
However, the said administrative arrangement
does not impinge on the jurisdiction of either the
CBI, or the State Police Force, to investigate and
prosecute in such like cases. He submits that by
virtue of the notification dated 08.11.1993, the
ACB of GNCTD has been declared to be a police
station under Section 2(s) of the Cr.P.C. for
offences under the Prevention of Corruption Act
and, as above said, it is manned by police officers
of the specified ranks. Thus, the jurisdiction of
the CBI and the ACB of GNCTD are concurrent. In
fact,
the
primary
responsibility
to
register,
investigate and prosecute a case under the PC

Act-in relation to Delhi Police personnel lies with
the GNCTD, as they are engaged and deployed in
related to the affairs of the GNCTD.
25.
Mr. Krishnan has also referred to para 1.11 of the CBI Manual,
which reads as follows:

1.11 It has also been agreed that the State Police or
AntiCorruption/Vigilance set-up may take immediate
action in respect of the Central Government employees
in the following circumstances:
(a) Where there is complaint of demand of bribe by a
Central Government employee and a trap has to be
laid to catch such employee red-handed, and there is no
time to contact the Superintendent of Police concerned
of the CBI, the trap may be laid by the State
Police/Anti-Corruption
or
Vigilance
set-up
and,
thereafter, the CBI should be informed immediately and

it should be decided in consultation with CBI whether
further
investigation
should
be
carried
out
and
completed by the State Police or by the CBI.

(b) Where
there
is likelihood
of destruction or
suppression of evidence if immediate action is not

taken, the State Police/Anti-Corruption or Vigilance setup may take necessary steps to register the case,
secure the evidence and, thereafter, hand over the case
to the CBI for further investigation.
(c)
Information
about
cases
involving
Central
Government employees, who are being investigated by
the State Police/AntiCorruption or Vigilance set-up,

should be sent by them to the local CBI Branch, Head of
the Department and/or the office concerned as early as
possible but, in any event, before a charge sheet or a
final report is submitted.
(d) All cases against Central Government employees
which are investigated by the State Police/AntiCorruption or Vigilance set-up and in which it is
necessary to obtain sanction for prosecution from a
Competent
Authority
of
Department
shall
referred
be
Central
to
the
Government
Competent
Authority directly under intimation to the CVC.

[Emphasis supplied]
26.
The submission of Mr. Krishnan is that para 1.11 extracted
above is a clear pointer to the recognition of the fact that the AntiCorruption or Vigilance set up has the jurisdiction to take action in
respect of a Central Government employee, when there is a
complaint for demand of bribe by such Central Government
employee and a trap is laid to catch such employee red-handed, and
there is no time to contact the Superintendent of Police of the
concerned CBI. It is also argued that the issue of jurisdiction is a
purely legal issue, which has to be examined in the light of the
constitutional and legal framework, and the CVC manual or the CBI
manual cannot be of any use to examine the said issue, except to
show how the Union Government and State Governments have

interpreted and understood the constitutional and legal framework,
and, implemented the same.
27.
Mr. Krishnan has also placed heavy reliance on the judgment
of the Supreme Court in A.C. Sharma v. Delhi Administration, (1973)

1 SCC 726. In this case, the accused was a dealing clerk in the
Labour Office, Delhi. Upon conviction by the Special Judge, Delhi
and subsequent dismissal of his appeal by the High Court, the
accused A.C. Sharma preferred an appeal before the Supreme Court.
One of the grounds taken by him in his appeal pertained to the
legality of the investigation into the offence alleged against him, by
the Deputy Superintendant of the Anti Crime Department of the
Delhi Administration. The contention was that Delhi Special Police
Establishment (DSPE) had the exclusive jurisdiction for investigation
of offences of bribery and corruption in the departments of the
Central Government. As the appellant was an employee of the
CPWD, the offence against him could be investigated only by the
DSPE. Since, in his case, the investigation was not done by the
DSPE, his trial was vitiated. The submission before the Supreme
Court was that the investigation by the ACB, Delhi was without
jurisdiction. The issue considered by the Supreme Court was posed
in para 6, which reads as follows:
6. The short but important question with far-reaching effect,
if the appellant's contention were to prevail, requiring our
decision is, whether with the setting up of the Delhi Special
Police Establishment, the Anti-Corruption Branch of the Delhi

Police had been completely deprived of its power to
investigate into the offences like the present or whether both
the SPE and the Anti-Corruption Branch had power to
investigate, it being a matter of internal administrative
arrangement for the appropriate authorities to regulate the
assignment of investigation of cases according to the
exigencies of the situation.
28.
After examining the provisions of the DSPE Act, the Supreme
Court, insofar as it is relevant, observed:

13. . . The scheme of this Act does not either expressly or
by necessary implication divest the regular police authorities
of their jurisdiction, powers and competence to investigate
into offences under any other competent law. As a general
rule, it would require clear and express language to effectively
exclude as a matter of law the power of investigation of all
the
offences
mentioned
in
this
notification
from
the
jurisdiction and competence of the regular police authorities

conferred on them by CrPC and other laws and to vest this
power exclusively in the DSPE. The DSPE Act seems to be only
permissive or empowering, intended merely to enable the
DSPE also to investigate into the offences specified as
contemplated by Section 3 without imparting any other law
empowering the regular police authorities to investigate
offences. [Emphasis supplied]
29.
After
examining
the
provisions
of
Prevention
of
Corruption Act (2 of 1947), and in particular Section 5 thereof,

the Supreme Court, inter alia, observed:
14. . . This sub-section, therefore, does not confer
sole power on DSPE to investigate into the offences
mentioned therein to the complete exclusion of the
regular police force. It is merely concerned with the
object of making provision for safeguarding against
arbitrary use of power of investigation by officers below
certain ranks, so that public servants concerned are
saved from frivolous harassment at the hands of
disgruntled persons. In this connection it is also
noteworthy that apart from the restriction contained in
Section 5-A(1) the applicability of the provisions of CrPC
to the proceedings in relation to the aforesaid offences
is, subject to certain modifications contained in Section
7-A, expressly recognised. The schemes of the two
enactments, namely, the DSPE Act, 1946 and the
Prevention of Corruption Act, 1947, suggest that they
are intended to serve as supplementary provisions of
law designed to function harmoniously in aid of each
other and of the existing regular police investigating
agencies
successful
mentioned
for
effectively
investigation
in
Section
achieving
the
into
the
serious
5-A
without
object
of
offences
unreasonably
exposing the public servant concerned to frivolous and

vexatious proceedings
30.
The Supreme Court also referred to D.O. No. 21/8/63-GD
dated October 5, 1963, addressed by the Central Bureau of

Investigation, Ministry of Home Affairs, Government of India to the
Inspectors General of Police inviting their attention to the
Government of India Resolution No. 4/31/61-T dated April 1, 1963
establishing the Central Bureau of Investigation consisting of six
Divisions to assist the State Police Forces. This letter talked of a
similar administrative arrangement between the CBI and the State
Police force, as referred to hereinabove. In relation to the said
letter, the Supreme Court observed:
No doubt, this letter contains only administrative
instructions but it clearly shows the construction placed
during all these years by the administrative officers
concerned with administering this law on the provisions
of the SPE and the Prevention of Corruption Act. If the
view stated in this letter is not clearly against the
language and scheme of these Acts then it is entitled to
due consideration and has some persuasive value. The
contention raised by Mr. Anthony that Delhi not being a
State but only a Union territory, the directions contained
in DO No. 21/8/63-GD, are inapplicable and that in
Delhi it is only the DSPE which has exclusive authority
to investigate into the offences mentioned in Section 5-
A is not easy to accept. Reference to the State Police

force in that DO in our view includes the police force of
the Union territory of Delhi.
31.
The submission of Mr. Krishnan is that the decision in A.C.
Sharma (supra) put a quietus on the issue sought to be raised by

the petitioner with regard to the jurisdiction of the ACB of the
GNCTD to investigate and prosecute the case against him under the
PC Act.
32.
Mr. Krishnan further submits that the Supreme Court in the
same decision went on further to hold that even if there was some
illegality committed in the course of investigation, the same does not
affect the competence and jurisdiction of the Court to try the
offence and the invalidity of the preceding investigation does not
result in vitiation of the trial, unless miscarriage of justice is caused
thereby. The Supreme Court in para 15 held as follows:
As the foregoing discussion shows the investigation in the
present case by the Deputy Superintendent of Police cannot
be considered to be in any way unauthorised or contrary to
law. In this connection it may not be out of place also to point
out that the function of investigation is merely to collect
evidence and any irregularity or even illegality in the course of
collection of evidence can scarcely be considered by itself to
affect the legality of the trial by an otherwise competent court
of the offence so investigated. In H.N. Rishabud and Inder
Singh v. State of Delhi 1955CriLJ374 it was held that an

illegality committed in the course of investigation does not
affect the competence and jurisdiction of the court for trial
and where cognizance of the case has in fact been taken and
the case has proceeded to termination of the invalidity of the
preceding investigation does not vitiate the result unless
miscarriage of justice has been caused thereby. When any
breach of the mandatory provisions relating to investigation is
brought to the notice of the court at an early stage of the trial
the Court will have to consider the nature and extent of the
violation and pass appropriate orders for such reinvestigation
as may be called for, wholly or partly, and by such officer as it
considers appropriate with reference to the requirements of
Section 5-A of the Prevention of Corruption Act, 1952. This
decision was followed in Munna Lal v. The State of U.P. AIR
1964 SC 28 where the decision in State of Madhya Pradesh v.
Mubarak Ali, 1959CriLJ920 was distinguished. The same view
was taken in the State of Andhra Pradesh v. M. Venugopal :
[1964]3SCR742 and more recently in Khandu Sonu Dhobi v.
State of Maharashtra (1972) 3 SCC 118. The decisions of the
Calcutta, Punjab and Saurashtra High Courts relied upon by
Mr Anthony deal with different points : in any event to the
extent they contain any observations against the view
expressed by this Court in the decision just cited those
observations cannot be considered good law.
33.
Therefore, Mr. Krishnan submits that even if, for the sake of
argument, it were to be assumed that the case against the appellant

could be registered, investigated and prosecuted only by the CBI or
Delhi Police, the alleged irregularity in the ACB of GNCTD initiating
action on the complaint, in any event, would not vitiate the
investigation or the eventual trial. The ACB of the GNCTD also
consists of the police officers drawn from the Delhi Police, and it is
not the case of the applicant that the investigation into the offences
under Section 7/13 of PC Act, of which the appellant is accused, are
being investigated by police officers below the rank competent to so
investigate under Section 17 of the PC Act.
34.
I proceed to deal with the aforesaid legal issue with regard to
the competence of the ACB of GNCTD to act on the complaint of the

complainant under the PC Act qua a Delhi Police personnel first. This
is an important constitutional issue which has a bearing on the
executive authority of the Union, and the said issue cannot be finally
determined without hearing the Union and examining its stand.
However, the Union is not a party to these proceedings and the
present proceeding being a bail application involving the personal
liberty of the applicant, I do not consider it appropriate to allow
these proceedings to get mired in a full-fledged hearing on this
issue, after calling upon the Union of India to place their stand
before this Court. Adopting that course of action would derail these
proceedings and prejudice the personal liberty of the applicant, as
the final resolution of the issue would consume more time in hearing
and in arriving at a decision. I am, therefore, proceeding to consider

the merits of the submissions on this aspect on the basis of limited
representation, only for the purpose of this case. I am also informed
that this issue is pending consideration before this Court in other
proceedings.
35.
Article 239AA (3)(a) of the Constitution of India vests powers
in the Legislative Assembly of the NCT to make laws in respect of

any matter enumerated in the State List or in the Concurrent List,
except in respect of Entries 1, 2 and 18 of the State List and Entries
64, 65 and 66 of the said list, insofar as they relate to Entry 1, 2 and
18. Thus, it would be seen that there is no fetter on the legislative
power of the Legislative Assembly of the NCT in relation to matters
enumerated in List III-the concurrent list of the Seventh Schedule to
the constitution.
36.
It is a well settled principle of constitutional interpretation that
an entry in a legislative list must be read in its widest amplitude and

the legislature must be held to have power not only to legislate with
respect to the subject matter of the entry but also to make ancillary
or incidental provision in aid of the main topic of legislation (see
Kasturi Lal Harlal v. State of U.P. & Ors., (1986) 4 SCC 704).
37.
Since matters contained in Entries 1 and 2 of the State List
are excluded from the legislative domain of the Legislative Assembly

of the NCT, and Mr. Krishnan has placed reliance only on Entries 1
and 2 in ListIII Concurrent List, it needs examination whether the
executive action in the present case, of the ACB of the GNCTD, is

relatable to the executive power of the GNCTD springing from
Entries 1 and 2 in List-III of Concurrent List. It also needs
examination, as to what is the scope of the executive power of the
Union in relation to the investigation of cases under the PC Act, in
relation to Union/Central Government officers and employees, who
are serving in the NCT.
38.
I may first deal with entries 1 & 2 of List II of the Seventh
Schedule, relied upon by the applicant. Entry 1 of List II, primarily

deals with Public Order. On the meaning of Public Order, Durga
Das Basu in his Shorter Constitution of India, 14th Edition 2009 (Vol.
II page 2369) comments that:
1. Public Order is a most comprehensive term
(Ramesh Thappar v. State of Madras, (1960) SCJ 418)
and subject to the exception mentioned, viz., use of the
armed forces in aid of the civil power, the State
Legislature is given plenary authority to legislate on all
matters which relate to or are necessary for the
maintenance of public order (Lakhinarayan Das v.
Province of Bihar, AIR 1950 FC 59), including the
prevention of insult to national honour (Natarajan N.V.,
in re, AIR 1965 Mad. 11).
2. Public order implies absence of violence and an
orderly state of affairs, in which citizens can peacefully
pursue their normal avocation of life (Basudeva v. Rex.,

AIR 1949 All. 513). Anything which disturbs public
tranquility disturbs public order (Ramesh Thappar
(supra)). This entry also includes public safety in its
relation to the maintenance of public order (Nek
Mohammad v. Prov. of Bihar, AIR 1949 Pat. 1(FB)). In
short, public order is synonymous with public peace,
safety and tranquility (Superintendant Central Prison,
Fatehgarh v. Ram Manohar, AIR 1960 SC 633) and
would, therefore, cover legislation to regulate the use of
sound amplifiers (State of Rajasthan v. Chawla G., AIR
1959 SC 544), or to prevent forcible and fraudulent
conversion (Stainislaus Rev. v. State of MP, AIR 1977
SC 908) or to prevent anti-social activities (Ashok
Kumar Dixit v. State of UP, AIR 1987 All. 235).
39.
An offence under the PC Act per se would have no bearing on
Public Order. Public Order implies violence and an orderly state

of affairs in which citizens can peacefully pursue their normal
avocations of life. The Constitution draws a clear distinction between
maintenance of public order on the one hand, and the enforcement
of the criminal law on the other hand, since they have been
provided as two separate entries in two different lists of the Seventh
Schedule.
Though,
to
maintain
and
enforce
public
order,
enforcement of the criminal law, including matter included in the

I.P.C. may be necessary, the enforcement of the criminal law
including all matters in the I.P.C. may not have a bearing on Public
Order as defined and interpreted. Thus, in my view, Entry 1 of List
II State List would not cover the subject of investigation and
prosecution of an offence under the PC Act.
40.
The subject of Entry 2 of List II State List is Police
(including railway and village police) subject to the provisions of

Entry 2A of List I. The word Police has been interpreted to be wide
enough to empower the State Legislature to create an armed
constabulary (Pooran Mistry v. State of UP, AIR 1955 All 370). The
subject matter of the entry Police relates to, inter alia, the creation
of the armed constabulary/police force; the creation of hierarchy of
the police force; its deployment; its objectives, powers and
jurisdiction; the laying down of rules, regulations and conditions of
service and powers of the police officers/personnel. It would include
the aspect of disciplinary control and supervision over the police
personnel. The same, however, does not touch upon the power to
enforce the criminal law by invoking the criminal procedure, inter
alia, under the Cr.P.C.
41.
The subject matter of Entry 1 of List-III is criminal law. It is
an inclusive entry, since it reads criminal law, including all matters

included in the IPC at the commencement of the constitution
(Emphasis supplied). It would, thus, mean that the executive power
of the GNCTD extends to implementation of the criminal law
generally, and includes all matters included in the I.P.C. at the
commencement of the constitution. Pertinently, the offences now
dealt with by the PC Act were earlier dealt with by the I.P.C. in
Section 161 to 165A, and it is only in 1988 upon enactment of the
PC Act, that the said provisions were repealed. The executive power
of the GNCTD also extends to the enforcement of the Code of
Criminal Procedure. Thus, reliance placed by the applicant on Entries
1 & 2 of List II of the Seventh Schedule appears to be misplaced.
Mr. Krishnan appears to be right in his submission that the relevant
legislative entry qua enforcement of PC Act cases are entries 1 & 2
of List III.
42.
The principle laid down by the Supreme Court in A.C. Sharma
(supra) would squarely apply in the facts of the present case. In this
regard, reference may also be made to the Division Bench judgment
of the Madhya Pradesh High Court in Ashok Kumar Kirtiwar v. State
of Madhya Pradesh, 2001 Crl LJ 2785. The Division Bench of the
Madhya Pradesh High Court observed in this case that Section 17 of
the PC Act refers to police officers of certain ranks, who alone can
investigate the offence under the said Act without making any
reference to the offender as to whether he is connected with the
affairs of the Union or of the State. In para 13, the Division Bench,
in this case, inter alia, held as follows:
13.
The
contention
that
the
Delhi
Special
Police
Establishment Act, 1946 confers exclusive jurisdiction on the

Special Police Force created under that Act to investigate the
offences of bribery and corruption committed by the Central
Government Employees, is also wholly misplaced. While this
Central Act of 1946 does provide for an agency for

investigation of such offences committed by the Central
Government Employees, there is however, no provision in the
Act to exclude jurisdiction of Police Officers of various States
to investigate the said offences when committed by such
employees in their States. The scope of the Central Act of
1946 is rather limited inasmuch as it provides for the
investigation of such offences when committed by the Central
Government Employees only. The Special Police Force under
this Central Act cannot investigate the offences committed by
the State Government Employees. The legal position in the
matter is made luculent by the Supreme Court in AC Sharma
Vs. Delhi Administration, AIR 1973 SC 913
43.
The Division Bench also took notice of the judgment of
the Supreme Court in State of Madhya Pradesh & Ors. V. Shri

Ram Singh, (2000) 5 SCC 88, wherein the Supreme Court has
observed in respect of the P.C. Act:
"10. The Act was intended to make effective provisions
for the prevention of bribery and corruption rampant
amongst the public servants. It is a social legislation
intended to curb illegal activities of the public servants
and is designed to be liberally construed so as to
advance its object. Dealing with the object underlying
the Act this Court in R.S. Nayak v. A.R. Antulay, 1984
(2) SCC 183 held:
18. The 1947 Act was enacted, as its long title shows,
to make more effective provision for the prevention of
bribery and corruption. Indisputably, therefore, the
provisions of the Act must receive such construction at
the hands of the court as would advance the object and
purpose underlying the Act and at any rate not defeat
it. If the words of the statute are clear and
unambiguous, it is the plainest duty of the court to give
effect to the natural meaning of the words used in the
provision. The question of construction arises only in
the event of an ambiguity or the plain meaning of the
words used in the statute would be selfdefeating. The
court is entitled to ascertain the intention of the
legislature to remove the ambiguity by construing the
provision of the statute as a whole keeping in view what
was the mischief when the statute was enacted and to
remove which the legislature enacted the statute. This
rule of construction is so universally accepted that it
need not be supported by precedents. Adopting this
rule
of
construction,
whenever
question
of
construction arises upon ambiguity or where two views

are possible of a provision, it would be the duty of the
court to adopt that construction which would advance
the object underlying the Act, namely, to make effective
provision for the prevention of bribery and corruption

and at any rate not defeat it.
11. Procedural delays and technicalities of law
should not be permitted to defeat the object
sought to be achieved by the Act. The overall
public interest and the social object is required to
be kept in mind while interpreting various
provisions of the Act and deciding cases under it.
44.
Thus, in my view, the GNCTD acting through the
ACB has the executive power/authority to enforce

criminal law, which includes the PC Act, within the NCT.
45.
The notification dated 08.11.1993 was issued by
the GNCTD in the name of the Lt. Governor of GNCTD

in exercise of powers conferred under Section 2(s) of Cr
PC. Section 2(s) of Cr PC defines police station to
mean any post or place declared generally or specially
by the State Government, to be a police station, and
includes
any
local
area
specified
by
the
State
Government in this behalf. The issuance of the

notification dated 08.11.1993 by the GNCTD itself
relates to exercise of executive power conferred on the
GNCTD by Entry 2 of List III Concurrent List. By this
notification, the Lt. Governor of GNCTD declared the
ACB, GNCTD at Old Secretariat to be a police station,
inter alia, for offences under the PC Act, and it was
stipulated that it shall have jurisdiction all over the NCT

of Delhi.
46.
Before I proceed to consider the impact of the notification
dated 23.07.2014 issued by the Ministry of Home Affairs in the name

of the Lieutenant Governor, which is relied upon by the applicant, at
this stage, I consider it necessary to examine the issue as to what is
the extent of the executive power of the Union vis--vis NCTD.
47.
Article 73(1) of the Constitution, insofar as it is relevant,
provides that: subject to the provisions of this Constitution, the

executive power of the Union shall extend
(a) To the matters with respect to which Parliament has
power to make laws; provided that the executive
power referred to in sub-clause (a) shall not, save as
expressly provided in this Constitution or in any law made by
Parliament, extend in any State to matters with respect to
which the legislature of the State has also power to make
laws.
48.
Thus, in relation to matters enumerated in the concurrent list,
though the legislative competence of the Parliament overshadows

the legislative competence of the State Legislature, the executive
powers of the Union in respect of such matters do not, save as
expressly provided in this Constitution or in any law made by
Parliament, extend in any State. In a matter falling in the
concurrent list, not covered by the Constitution or law made by
Parliament which vests authority in the Union to exercise its

executive power in the State, the executive power of the Union does
not extend to the State.
49.
Article 162 deals with the extent of executive power of the
States. It reads:
162. Extent of executive power of State Subject to the
provisions of this Constitution, the executive power of a State
shall extend to the matters with respect to which the
Legislature of the State has power to make laws Provided that
in any matter with respect to which the Legislature of a State
and Parliament have power to make laws, the executive
power of the State shall be subject to, and limited by, the
executive power expressly conferred by the Constitution or by
any law made by Parliament upon the Union or authorities
thereof Council of Ministers.
50.
Thus, in respect of matters enumerated in List II, the States
have the exclusive executive powers. Even in respect of the matters

enumerated in the concurrent list, the executive power vests in the
State, subject to the condition that it is subject to, and limited by,
the executive power expressly conferred by this Constitution or by
any law made by Parliament upon the Union or authorities thereof.
51.
In Rai Sahib Ram Jawaya Kapur and Others Vs. The State of
Punjab, AIR 1955 SC 549, the Constitution Bench of the Supreme

Court had the occasion to consider the extent of executive of powers
of the Union and the States. The Supreme Court, inter alia, observed
as follows:
7. Article 73 of the Constitution relates to the executive
powers of the Union, while the corresponding provision in
regard to the executive powers of a State is contained in
Article 162. The provisions of these articles are analogous to
those of section 8 and 49(2) respectively of the Government
of India Act, 1935 and lay down the rule of distribution of
executive powers between the Union and the States, following
the same analogy as it provided in regard to the distribution
of legislative powers between them. Article 162, with which
we are directly concerned in this case, lays down: "Subject to
the provisions of this Constitution, the executive power of a
State shall extend to the matters with respect to which the
Legislature of the State has power to make laws :
Provided that in any matter with respect to which the
Legislature of a State and Parliament have power to
make laws, the executive power of the State shall be
subject to, and limited by, the executive power
expressly conferred by this Constitution or by any law
made by Parliament upon the Union or authorities
thereofThus under this article the executive authority of
the State is exclusive in respect to matters enumerated
in List II of Seventh Schedule. The authority also
extends to the Concurrent List except as provided in the
Constitution itself or in any law passed by the

Parliament. Similarly, Article 73 provides that the
executive powers of the Union shall extend to matters
with respect to which the Parliament has power to
made laws and to the exercise of such rights, authority
and jurisdiction as are exercisable by the Government of
India by virtue of any treaty or any agreement. The
proviso engrafted on clause (1) further lays down that
although with regard to the matters in the Concurrent
List the executive authority shall be ordinarily left to the
State it would be open to the Parliament to provide that
in exceptional cases the executive power of the Union
shall extend to these matters also. Neither of these
articles contain any definition as to what the executive
function is and what activities would legitimately come
within its scope. They are concerned primarily with the
distribution of the executive power between the Union
on the one hand and the States on the other. They do
not mean, as Mr. Pathak seems to suggest, that it is
only when the Parliament or the State Legislature has
legislated on certain items appertaining to their
respective lists, that the Union or the State executive,
as the case may be, can proceed to function in respect
to them. On the other hand, the language of Article 162
clearly indicates that the powers of the State executive
do extend to matters upon which the State Legislature

is competent to legislate and are not confined to
matters over which legislation has been passed already.
The
same
principle
underlies
Article
73
of
the
Constitution. These provisions of the Constitution

therefore do not lend any support to Mr. Pathak's
contention.
52.
The proviso to Article 73 is in respect of a State, and not a
Union
Territory
which
the
NCTD
is.
Having
noticed
the
constitutional scheme qua the distribution of executive powers

between the Union and the States, now proceed to examine as to
what is the position in respect of the Union Territory of Delhi, i.e.
NCTD.
53.
Delhi is enlisted at serial no.1 in the list of Union Territories in
Schedule I to the Constitution of India. The Union Territories are

dealt with in Part VIII of the Constitution of India which begins with
Article 239. Article 239 (1) states: Save as otherwise provided by
Parliament by law, every Union Territory shall be administered by
the President acting, to such extent as he thinks fit, through an
Administrator to be appointed by him with such delegation as he
may specify (Emphasis supplied).
54.
Therefore, if a law made by Parliament puts fetters on the
executive powers of the President in respect of a Union Territory, to
the extent of such fetter the executive power of the President shall
stand curtailed in respect of the Union Territory.
55.
The Parliament has enacted the Government of National
Capital Territory of Delhi Act, 1991 (GNCTD Act). By virtue to

Section 41 of the GNCTD Act, the Lieutenant Governor is mandated
to act in his discretion in matters:
(i) which falls outside the purview of the powers conferred on
the Legislative Assembly but in respect of which powers or
functions are entrusted or delegated to him by the President;
or
ii) in which he is required by or under any law to act in his
discretion or to exercise any judicial or quasi-judicial
functions.
56.
Thus, in respect of matters which do not fall outside the
purview of the powers conferred on the Legislative Assembly in

other words, which fall within the legislative competence of the
Legislative Assembly, or in which he is not required by or under any
law to act in his discretion or exercise his judicial or quasi-judicial
functions, the Lieutenant Governor must act on the aid and advice
of the Council of Ministers. The NCT of Delhi shall not be
administered by the President through the Lieutenant Governor, in
respect of matters over which the Legislative Assembly of the NCT
has authority to make laws. This position emerges from the
constitutional scheme contained in Articles 239 and 239AA, read
with Sections 41 to 44 of the GNCTD Act, 1991, as would be evident

from the following discussion. 57. Sub-Article (4) of Article 239AA is
relevant in this regard, and it reads:
(4) There shall be a Council of Ministers consisting of not
more than ten per cent. of the total number of members in
the Legislative Assembly, with the Chief Minister at the head
to aid and advise the Lieutenant Governor in the exercise of
his functions in relation to matters with respect to which the
Legislative Assembly has power to make laws, except in so far
as he is, by or under any law, required to act in his discretion:
Provided that in the case of difference of opinion between the
Lieutenant Governor and his Ministers on any matter, the
Lieutenant Governor shall refer it to the President for decision
and act according to the decision given thereon by the
President and pending such decision it shall be competent for
the Lieutenant Governor in any case where the matter, in his
opinion, is so urgent that it is necessary for him to take
immediate action, to take such action or to give such direction
in the matter as he deems necessary.
(Emphasis supplied)
58.
Section 44 of the GNCTD Act is also relevant, and, insofar as it
is relevant, the same reads as follows:

44. Conduct of business: (1) The President shall make rules :
(a) for the allocation of business to the Ministers in so far as it

is business with respect to which the Lieutenant Governor is
required to act on the aid and advice of his Council of
Ministers; and
(b) for the more convenient transaction of business with the
ministers, including the procedure to be adopted in the case
of a difference of opinion between the Lieutenant Governor
and the Council of Ministers or a Minister.
(2) Save as otherwise provided in this Act, all executive action
of Lieutenant Governor whether taken on the advice of his
Ministers or otherwise shall be expressed to be taken in the
name of the Lieutenant Governor.
(3)
(Emphasis supplied)
59. On a reading of Sub-Articles (2)(a), (4), (5), and (6) of

Article 239AA it emerges that the seats in the Legislative
Assembly for the NCT are filled by members chosen by direct
election from territorial constituencies in the NCT. The Chief
Minister, who heads the Council of Ministers, is appointed by
the President, and the Council of Ministers are appointed by
the President on the advice of the Chief Minister. The Council
of Ministers are collectively responsible to the Legislative
Assembly.
60.
The Supreme Court in S.R. Chaudhuri Vs. State of
Punjab & Ors., (2001) 7 SCC 126, has observed as follows:
34. The very concept of responsible Government and

representative democracy signifies Government by the
people. In constitutional terms, it denotes that the
sovereign power which resides in the people is
exercised
on
their
behalf
by
their
chosen
representatives and for exercise of those powers, the

representatives are necessarily accountable to the
people for what they do. The Members of the
Legislature, thus, must owe their power directly or
indirectly to the people. The Members of the State
Assemblies like Lok Sabha trace their power directly as
elected by the people while the Members of the Council
of State like Rajya Sabha owe it to the people indirectly
since they are chosen by the representative of the
people. The Council of Minister of which a Chief Minister
is head in the State and on whose aid and advice the
Governor has to act, must, therefore owe their power to
the people directly or indirectly.
(Emphasis supplied)
61.
The position would be no different in relation to the NCT of
Delhi, since the Members of the Legislative Assembly are directly

elected by the citizens from territorial constituencies in the NCT of
Delhi, and the Council of Ministers is collectively responsible to the
Legislative Assembly. The mandate of the people, with whom the
sovereign power resides, must be respected by the Lieutenant
Governor in respect of matters which fall within the domain of the

legislative assembly, provided there is no other constitutional or
legal fetter.
62.
A Division Bench of this Court in Om Parkash Pahwa & Ors.
Vs. State of Delhi & Others, 75 (1998) DLT 3 (DB), had occasion to
examine the scope and impact of Article 239AA of the Constitution
on the executive power of the Union, which acts in the NCTD
through the Lieutenant Governor. The Division Bench observed as
follows:
65. To examine the scope and impact of Article 239AA,
we would borrow the several principles of law laid down
in Shamsher Singh Vs. State of Punjab, (1974) II LLJ
465 SC, a decision of a Constitution Bench of the
Supreme
Court
which
contains
an
illuminating
exposition of the Constitutional scheme and impact on

the working of the Government under the pari materia
provisions such as Articles 53, 77, 154 and 166 of the
Constitution. Shamser Singh's case was decided when
Art 239AA was not to be found in the Constitution. 66.
Under
the
Parliamentary
or
Cabinet
System
of
Government as embodied in our Constitution, the

President is the constitutional or formal Head of the
Union and he exercises his powers and functions
conferred on him by or under the Constitution at the aid
and advice of his Council of Ministers. The Governor is
the constitutional or formal Head of the State and he

exercises all his powers and functions conferred on him
by or under the Constitution on the aid and advice of
his council of ministers save in the spheres where the
Governor is required by or under the constitution to
exercise his functions in his discretion. A comparative
reading of Articles 74 and 163 of the Constitution shows
that in the matter of exercise of such functions which
are 'in his discretion by or under the Constitution' the
Governor is not made to depend on the aid and advice
of the Council of Ministers under Article 163. The
Constitution has not chosen to provide for similar
discretionary
functions
to
be
discharged
by
the
President under Article 74. The words in his discretion"

are used in relation to some powers of the Governor
and not in the case of the President.
67. The phraseology employed by Clause (4) of Article
239AA deserves to be compared with that employed in
Article 163. The Lt. Governor of NCT of Delhi would be
aided and advised by the Council of Ministers in the
exercise of his functions in relation to the matters with
reference to which the legislative assembly has power
to make laws. However, the Governor while exercising
such powers and discharging such functions which 'any
law' requires to be done 'in his discretion' are not
associated with the aid and advice of the Council of

Ministers. There the Lt. Governor acts in his discretion.
68. To put it briefly what the Governor of a State may
do at his discretion must be so provided for by the
Constitution. What the Lt. Governor of NCT of Delhi
may do at his discretion may be provided by or under
'any law' and not the Constitution merely.
(Emphasis supplied)
63.
Thus, the constitutional scheme in relation to the extent of
executive power of the Union over the NCTD is on similar lines as it

is in relation to a State, except that, whereas the Governor of a
State may act in his discretion in matters so provided for in the
Constitution, the Lieutenant Governor of NCTD may so act in his
discretion as provided by any law made by Parliament.
64.
The Legislative Assembly of the NCT constituted by Article
239AA 2(a) is, by Article 239AA(3)(a) empowered to make laws in

respect of matters enumerated in, inter alia, the concurrent list of
the Seventh Schedule to the Constitution. Therefore, in respect of
matters dealt with by Entries 1 and 2 of the Concurrent List, the
Lieutenant Governor cannot act in his discretion, and he is bound to
act upon the aid and advice of the Council of Ministers. No law has
been cited by the applicant, by which the Lieutenant Governor was
empowered to act in his discretion in the matters covered by Entries
1 & 2 of the List III- Concurrent List.
65.
Thus, it appears to me, that the Union Government could not
have issued the notification dated 23.07.2014 thereby seeking to

restrict the executive authority of the GNCTD acting through its ACB
to act on complaints under the PC Act only in respect of officers and
employees of the GNCTD. By an executive fiat, the Union
Government could not have exercised the executive power in
respect of a matter falling within the legislative competence of the
Legislative Assembly of the NCT, since the law made by Parliament,
namely the GNCTD Act read with Article 239 AA put fetters on the
executive authority of the President.
66.
After the judgment was reserved in the present application,
the Ministry of Home Affairs has issued a notification bearing No. SO

1368(E) on 21.05.2015 thereby further amending the notification
dated 08.11.1993 and, inter alia, providing that ACB police station
shall not take any cognizance of the offences against officers,
employees and functionaries of the Central Government. In my
view, since the Union lacks the executive authority to act in respect
of matters dealt with in Entries 1 & 2 of List III of the Seventh
Schedule, the further executive fiat issued by the Union Government
on 21.05.2015 is also suspect.
67.
In the light of the aforesaid discussion, the submission of the
applicant that the ACB of the GNCTD does not have the competence
or jurisdiction to act on the complaint of the complainant is rejected.
Since the applicant is a Delhi Police personnel serving the citizens in
the NCTD and the functions of the Delhi Police personnel
substantially and essentially relate to the affairs of the GNCTD, in

my view, the ACB of the GNCTD has the jurisdiction to entertain and
act on a complaint under the PC Act in respect of a Delhi Police
officer or official, and to investigate and prosecute the crime. This
would also be in consonance with the guidelines issued by the CVC
as contained in para 1.5.2(b) set out herein above.
68.
I also find merit in the submission of Mr. Krishnan that the
continued investigation into the crime in question by the ACB of

GNCTD would not vitiate the eventual trial in the light of the
judgment of the Supreme Court in A.C. Sharma (supra). In this
regard, reference may also be made to Dr. G.S.R. Somaiyaji v. State
through CBI, (2002) Crl LJ 795.
69.
Lastly, turning to the merits of the case, it is well settled that
while considering the bail application, the Court should not examine
the merits in detail or make any observations which may prejudice
the trial one way or another. The transcript of the allegedly recorded
telephonic conversation between the complainant and Sarvan has
been read out in Court, and the name of the applicant, as one of the
persons demanding the bribe, and as one of the persons for whom
the bribe was sought to be collected by Sarvan appears to be
mentioned. Coupled with this is the fact that the applicant was
found at the spot, i.e. Balaji Properties, where Sarvan allegedly fixed
the meeting with the complainant for payment of the bribe amount.
It is for the applicant to explain as to what he was doing during his
official duty hours at Balaji Properties, which does not even fall
within the territorial jurisdiction of his police station at the time of

the raid.
70.
The applicant is a Head Constable at P.S Sonia Vihar and,
therefore, the possibility of his misusing his official position to

threaten or influence the complainant and other prosecution
witnesses, or tamper with the evidence cannot be ruled out at this
stage.
71.
In view of the aforesaid aspects, I do not find any merit in the
present bail application and, consequently, dismiss the same.

However, it is made clear that the observations made in this
judgment shall not prejudice the case of either party, and shall not
influence the proceedings or the judgment which the Trial Court
may render qua the applicant.
(VIPIN SANGHI)
JUDGE
MAY 25, 2015
//TRUE COPY//
27.01.1999
Petitioner
Bank's
KRCC
Branch,
Belgaum
sanctioneda term loan styled as OSL 13/99 of Rs

191.70 lacs,to respondent no. 1
16.03.1999
Another loan by way of Secured Overdraft styled

asSOD(H) loan no. 2/1999 for Rs.10 lacs was also
sanctioned.
26.11.2002
Respondent No. 1 vide letter dated 26.11.2002

requested for OTS of Rs. 225 lacs.
22.01.2003
The petitioner Bank sanctioned OTS for Rs. 225

lacsto respondent no.1 and granted three months
time forpayment.
27.03.2003
Respondent no.1 wrote letter dated 27.03.2003

to the petitioner stating that they had applied for
loan of Rs.550 lacs with KSIIDC and requestedto
the Bank to extend time up tp 30.04,2003 for
making paymentthrough the KSIIDC.
25.11.2003
Since respondent no.1 had defaulted in payment,

petitioner Bank through its Authorised Officer
issueddemand notice dated 25.11.2003. under S.
13(2) ofthe SARFAESI Actcalling upon them topay
the amount of Rs.3,60,77,375/- with interest
from the date of notice within 60 days failing
whichfurther action under the SARFAESf Act
would betaken. No reply to. the notice was

received by theBank nor the borrowers made any
payment.
24.01.2004
Respondent no.1 wrote to the Bank that it was

readyto settle the
1,91,70,000/-
if
dues under
OTS
is
OTS forRs.
sanctioned
before
Februaryend and paymentwill be made before

31.03.2004.
31.01.2004
The petitioner, vide letter dated 31.01.2004

informedrespondent no.1 that the Bank was
unable to consider the aforesaid request for OTS.
27. 07. 2004
The petitioner Bank issued :a possession notice

dated
27.07.2004
under
Rule
8(1)
of
SARFAESI Act toborrowers and the sureties.
the
It
was duly publishedin the newspapers.
10.08.2004
Valuation report dated 10.08.2004 in respect of

thehotel property was submitted by approved
valuer ofthe petitioner Bank.
11.09.2004
A public notice dated 'l 1.09.2004 was published

bythe Bank inthe newspaper Times .of India
dated29.09.2004, proposing sale of the property
by tenderson 15.10.2004 at 5 pm.
27.07.2004
The Authorized Officer of the petitioner Bank took

actual possession of the Hotel Property of the
Respondents.
07.10.2004
Respondentno. 1 filed WP No. 41445 of 2004

(GM-RES)
againstthe
Union
of
India
and
petitioner Bankbefore the Karnataka High Court,

praying that notice published in the Times of
India dated 29.09.2004 bythe petitioner Bank be
quashed as being in violationof S.13 of SARFAESI
Act, 2002.
28.02.2005
High Court of Karnataka at Bangalore dismissed

saidwrit
petition
no.
41445/2004
filed
by
respondent no.1
09.03.2005
Second notice for public auction of the secured

assets was published.
However, the secured assets could not be sold
for want of buyers for the reserve priced fixed.
28.06.2005
The petitioner Bank wrote a letter to respondent

no. 1 referring to the fact that as the secured
assets did notevoke any response in the sale
fixed on 21.03.2005at the reserve price, but an
offer for Rs.225 lacs had been received, they may
either give consent for sale of the property at the
said price or get a better offerfor sale of the
property.
16.08.2005
The petitioners wrote a letter to respondent no.1

thatin aforesaid circumstances the petitioner Bank
was reducing the reserve price of the property on
account of statutory liabilities to the tune of
Rs.43,01,100/-
plus interest from 01.10.2004
which would have to be borne by the purchaser if

property is sold on as iswhere is basis. Thus
respondent no.1 was requested to improve the
OTS offer.
15.11.2005
Petitioner received a letter dated 15.11.2005 from

Respondent no 1, in which it was stated that the
statutory dues was about Rs. 75 lacs, and that it
was willing to offer OTS amount of Rs. 2.4 crores
withoutany down payment.
20.01.2006
Pursuant to above Respondent no.1.made a

paymentof Rs.
20 lacs by cheque dated
16.01.2006 and requested for 90 days time for

payment of balanceamount of OTS.
28.01.2006
Petitioner
received
another
letter
dated
28.01.2006 from respondent offering the Bank an

OTS amount of Rs.2,13,93,320/-.
08.02.2006
The
petitioner
sanctioned
the
by
letter
above
dated
OTS
0.8.02.2006
offer
subject
tocondition that entire OTS amount be paid on or

before 31.03.2006besides
other
usual
conditions.
31.03.2006
Petitioner received a letter dated 31.03.2006 from

respondent no.1, stating that the Sahakari Bank
from whom respondent no.1
was to obtain a
loan forpayment of OTS amount was now willing

to give onlyRs. 1.6 crores loan to respondent No.
1.
08.04.2006
The petitioner in response to above letter dated

31.03.2006,
by
its
letter
dated
08.04.2006
informed respondent no.1 that as a last and final

chance thebalance OTS amount must be paid by
15.04.2006.
22.04.2006
Respondent no.1 made various representations to

the petitioner for extension of time by two
months.
25.04.2006
Petitioner
by
its
letter
dated
25.04.2006
to respondent no. 1 rejected the prayer for

extension oftime.
27.04.20067
28.04.2006:
Notice of sale by inviting tenders of the Hotel

propertypublished in the newspapers "Prajavani"
(Kannada),and "The
New
Indian
Express"
(English) fixing08.05.2006 as thedate of sale.

Reserve price wasfixed at Rs. 215 lacs including
Rs.186
lacs
for
Hotel
and
Rs.29lacs
for
machineries and fixtures. At thattime amount due

was Rs.538.23 lacs.
Propertybearing CTS no.
7164 measuring3948 sq. ft. was notincluded.

03.05.2006
Respondent no.1 filed WP no. 6471/2006 (GMRES) in
High Court of Karnataka alleging that
auctionnotice was in violation of Rule 9(2) of

SARFAESI Act
05.05.2006
Notice of sale by inviting tenders of the Hotel

propertyas
aforesaid
was
also
published
innewspaper "Tarun Bharat (Marathi)in aforesaid

terms.
08.05.2006
Sale was conducted. Only one bid for Rs.216 lacs

was received. A representation was received by
theauthorised officerfrom respondent no.1 that
the
reserve
price
wasreduced
without
any
intimation to them and that saidWP was pending

in respect of the same before theHigh Court.
12.05.2006
Petitioner Bank received a letter from the Sale

Officer, Sh. Beereshwar Souharda Credit Sahakari
Ltd. (Society) stating that partner of respondent
no.1Mr. Vittal M, Poonja had mortgaged property
bearingRS No. 73/3 (Paiki) measuring 4 Guntas at
Belgaumto the society for Rs.20 lacs arid claimed
right toreceive share from
the
sale proceeds of
Hotelproperty. Various other allegations;
were made by the Society.
2.05. 2006
Respondent no. 2 made a request for extension

oftime for payment of balance sale consideration
from to 15.06.2006
and
the
same
wasaccepted by the petitioner Bank.
17.05.2006
Respondent N. 1 filed ASA No. 151/2006 in DRT

Bangalore against the auction sale of the hotel
property
26.05.2006
Respondent NO. 2 made payment of balance

Rs.162 lacs to the petitioner Bank making up full
payment of the auction price.
Certificate of sale
of Hotel Property
was
executed and registered in favour of the auction

purchaser/respondent
no.
Separate
Sale
Certificate for Sale of the moveable property for

Rs.30 lacs was also executed.
01.06.2006
Since
auction
had already been conducted
Respondent No. 1 withdrew W. P. No. 6471/2006

(GM-RES).
05.07.2007
DRTBangalore dismissed ASA no. 151/2006 (filed

on 17.05.2.006) aforesaid of respondent no.1
andheld, that the appeal was. without substance.
03.11.2007
Respondent
no.1
filed
petition
WP
no.
17372/2007(GM-DRT) before the High Court of

Karnataka against the order dated 05.07.2007 of
the DRT in ASA no. 151/2006.
09.02.2008
Petitioner Bank filed its objections, to the above

writ petition.
20.06.2008
OA.no. 135/2002 filed by the petitioner Bank in

DRT, Bangalore was allowed and defendants 1
to 5therein
were
directed
to
pay :a
sum
of Rs.2,63,13,232.13p with interest @ 18%p.a.

compounded, quarterly and costs etc. It was
directed that Rs. 2.16 crores received by .sale of
the securedassets be credited to the account of
defendant no.1(respondent nb.1 herein)
03.09.20.10
WP
No,
66647/2010
respondentno.1
in .the
Karnataka praying
20.06.2008
of
(GM-DRT)
filed
by
High. Court of
forquashing order dated
DRT,
Bangalorein
OA
no,
135/2002. It was also prayed that thepetitioner

Bank be directed the accept the balance of the
money due as per the OTS of Rs.216 lacs
accepted by petitioner Bank on 08.02.2006.
19.09.2011
The High Court of Karnataka dismissed WP No.

66647/2010 (GM-DRT) filed by respondent no.1
19.09.2011
On the same, day the Hon'bLe High Court also

dismissed WP No. 17372/2007 (GM-DRT) filed by
respondent No. 1
31.10.2011
Responded no. 1 filed writ-appeal no. bearing WA

no. 6368/2011 (GM-DRT) against the judgment
dated19.09.2011 of the Learned Single. Judge in
WP No-. 17372/2007 (GM-DRT), arising from the
proceedingsunder the SARFAESI Act, 2002.
21.11.2011
The Division Bench of the High Court of

Karnataka allowed WA No. 6368/2011 (GMDRT).had held that the sale conducted by the
Authorised Officer of the petitioner Bank of the
secured assets of respondent no. 1was against
the Act and Rules and directed that-re-auction of
theproperty be done by following the provisions
of the Act and Rules. It was directed that the sale
amountbe refunded to the auction purchaser and
possessionof the property be handed over by
auction purchaser to the petitioner Bank.
January 2012
Aggrieved
petitioner
by the impugned judgment the

filed
SLP
being
SLP
35168/2011 and the Respondent
(c)
No.
NO. 2 ( the
auction purchases) also field an SLP No. 6226 of

2012.
11.04.2014
Arguments in both the SLP were heard and the

judgment was reserved.
Leave was granted us both the SLPs and they
were converted to Civil Appeals
Appeal No. 35168 of 2011
being Civil
& Civil Appeal No.
4680 of 2014 respectively.

22.04.2014
This Honble Court vide order dated 22.04.2014

were pleased
to dismiss
the Civil Appeal
directing that purchaser has paid a sum of

Rs.1.86 crores towards purchase ofproperty and
Rs.30 lakh towards moveable items to the Bank.
He
has
registration
also
fee
spent
Rs.1,86,335/-
towards
and
Rs.15,62,400/-
towards
stamp duty. In addition, dues towards municipal

tax, Sales Tax liability, dues of Employees State
Insurance Corporation, Employees Provident Fund
and Belgaum Industrial Cooperative Bank have
also been paid. A total whereof comes to Rs.
49,91,000/-. These were the liabilities of the
borrower. In this way, total amount of Rs.
2,83,39,735/- is paid by the purchaser. He has
also discharged municipal tax liability in the sum
of Rs.2,86,078/- for the period 1.4.2007 ti6
31.3.2009. As we have affirmed the order of the
High Court setting aside the sale, we grant two
months time to the borrowed to discharge the
entire liability of the Bank. The borrower shall
also reimburse the amount of registration fee and
stamp duty to the purchaser. The direction to pay
this amount is given having regard to the conduct
of the borrower on earlieroccasions. If the
borrower pays the amount due to the Bank,
registration charges, stamp duty as well as
amount of encumbrances paid by the purchaser,

which was the liability of the borrower i.e. a sum
of Rs.49,91,000/- + 2,86,078/-, the property shall
revert back to the borrower. If the aforesaid
amounts are not paid within the aforesaid two
months, the Bank shall be at liberty to proceed
with the sale of the property following due
procedure
under
the
law.
In
so
far
as
thepurchase is concerned, he shall be refunded

entire amount spent
mentioned
above. We
granted interest
by the purchaser, as
have consciously
to the purchaser
not
on the
aforesaid amount, as the purchaser has, in the

meantime, utilized the property in question.
REPORTABLE
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4679 OF 2014
[Arising out of Special Leave Petition (CIVIL) No. 35168 OF 2011]
Vasu P. Shetty
. Appellant (s)
Versus
M/s Hotel Vandana Palace & Ors.
. Respondent (s)
With
C.A.No.4680/2014
(@ SLP(C) No. 6226 of 2012)
JUDGMENT
A.K. SIKRI, J.
1.s Leave granted.
2. Respondent No. 1 herein had taken loan from Syndicate Bank
(hereinafterto be referred as the 'Bank'). Because of its default in
repaying
provisions
thesaid
of
loan,
the
bank
took
action
under
the
theSecuritization and Re-construction of Financial
Asset and Enforcementof Security Interest Act, 2002 (SARFAESI

Act). After taking formalpossession of the mortgaged property
which was given as a surety fordue discharge of the loan, the
said property was put to sale. Theappellant herein was the

highest bidder whose bid was acceptedresulting into issuance of
the sale certificate. Respondent No. 1 (hereinafter referred to as
the 'borrower') challenged the said sale byfiling application before
the
Debt
Recovery
Tribunal
(DRT).
This application was
dismissed. The borrower filed Writ Petition before theHigh Court of

Karnataka against the order of DRT.
The
learned
SingleJudge
dismissed the Writ Petition as well. Undeterred, the borrower

appealed against the order of the learned Single Judge. This time
ittriumphed, as the Division Bench has set aside the sale of the
propertyin favour of the appellant. The reason given is that the
public noticeissued for the said sale was defective as 30 days
time
which
ismandatorily required under Rules 8 and 9 of
SARFAESI Act was not given.Concededly the public notice was

published in the newspaper on28.4.2006, fixing the date for sale
as 8.5.2006, inviting tenders fromprospective buyers at 2.00 p.m.
on 6.5.2006.
3. This fact that insufficient notice was given, is, therefore, not
indispute. Legal position about the mandatory nature of Rule 8& 9
isalso not agitated. Notwithstanding this
legal
possession,
theappellants viz auction purchaser as well as the Bank maintain

that thesale was valid because of the reason that delay was
entirelyattributable to the borrower who by its conduct waived
the saidmandatory requirement of the Rules. In this backdrop, the
question that
arises for consideration is as to whether there could be a waiver

ofthe aforesaid mandatory condition?
If so, whether this waiver
can bediscerned in the present case? Before we answer these

questions itwould be apposite to have a thorough glimpse of the
facts on record.
4. The borrower had availed a loan of Rs. 1,84,70,000/-. This
loanwasobtained from the bank to construct a hotel in
prominent place in Belgaum. The borrower has constructed the

hotel at the said place for aland measuring 1825.25 sq. mtrs. with a
built up area of 4749.64 sq.mtrs. At the time of sanction of the
loan, the premises were valued atRs. 3.16 crores. As mentioned
above, the borrower committed default inthe repayment of these
financial facilities granted to it. Notice underSection 13(2) of the
SARFAESI Act to take formal possession of the property was
issued.
Thereafter,
the
Authorised
Officer
of
the
Bank
(Respondent No. 2)underSARFAESI Act proceeded to sell this

property.Property could not be sold in the first attempt and the
efforts
werefructified only when it was
put
to
auction
third
time. Since theearlier endeavour made by the Authorised Officer

are
used
as
shieldagainst the borrower's attack on sale in
question, it becomes necessaryto take a note of these attempts as

well.
5.
First notice for auction was published on 11.9.2004 fixing the
auctiondate as 15.10.2004. Reserve Price was fixed at Rs.
3.50
crores. Thisnotice, admittedly, was for more than 30 days. At
that stage, theborrower filed the Writ Petition in the High Court
challenging the saidnotice 3 days before the proposed sale i.e. on
12.10.2004. Though theHigh Court did not grant stay against the
scheduled auction, it grantedstay against confirmation of sale. As
per the appellant, in view of thesaid partial stay order, nobody
came forward to participate in theauction and the exercise went
into futility.
6.
The Writ Petition filed by the borrower was dismissed by the
High Courton 28.2.2005 upholding notice dated 27.7.2004 issued

under Section13(4) of the SARFAESI Act. In the meantime, it came
to the notice ofthe Authorised Officer of the bank that there were
encumbrances in theform of statutory liabilities to the tune of Rs.
43,01,100/- payablethe borrower and, therefore, the Reserve Price
fixed at Rs. 3.50 croreshad to be reduced. The borrower was
informed about it. The Bank
issuedfresh notice on 9.3.2005 for
auction of the property fixing date ofauction as 21.3.2005 with

reduced Reserve Price at Rs. 2.39 crores.
7.
In the auction held on 21.3.2005 the highest offer which was
receivedwas in the sum of Rs. 2.25 crores which was less than even
the reduced reserve price. It can well be discussed that this sale
notice was for aperiod of less than 30 days. Be as it may, the bank
wrote letter dated28.6.2005 to the borrower asking it to convey its
consent for the saleof property for a sum of Rs. 2.25 crores which
was the highest bid.However, the borrower did not respond to
this letter. Thereafter,
another letter dated 16.8.2005 written by the bank stating the

reasonsas to why it was constrained to reduce the Reserve Price.
8. The borrower did not accede to the request of
Instead,
settle
the
Bank.
on15.11.2005, the borrower expressed its intention to

the
matterby making the proposal under One Time
Settlement (OTS) scheme of theRBI. It was followed by letter

dated 8.1.2006 by the borrower to the Bank requesting for OTS
at Rs.2,13,93,320/-. This proposal of theborrower was sanctioned
by the Bank on 8.2.2006 with furtherstipulation that the amount
would be paid on or before 31.3.2006.Cheque of Rs. 20 lakhs
which was given by the borrower along with itsOTS proposal was
encashed by the Bank and was credited to the 'No LienAccount'.
However, on 31.3.2006, instead of paying the
amount as
per
the agreed OTS, the borrower requested for extension of time

giving itsown reasons. Time was extended upto 15.4.2006 for
payment
as
last chance. However, on 14.4.2006 another
request for extension of time bytwo months was made which was
followed by letter dated 22.4.2006 to the same effect. This time the
Bank rejected the request of the borrower vide letter dated
25.4.2006. As a consequence, the OTS did notfructify.
9.
On failure of OTS due to the fault of the borrower, the
AuthorisedOfficer of the Bank sprung into action and took steps for
the sale ofthe property, in question. Notice dated 27.4.2006 was
published inIndian Express (English) and in Tarun Bharat (Marathi)
on 7.5.2006 forthe auction of the property. The Auction date
was published as8.5.2006. Auction was held on 8.5.2006 wherein

the bid of the appellantin the sum of Rs. 2.16 crores being
the
highest, was accepted. The appellant paid 25 percent of the bid

amount and the balance amount
waspaid on 24.5.2006. The
appellant also made payment for the encumbrancesto the concerned

statutory authorities which was in the sum of Rs. 49.91 lakhs. In
this way the appellant made total payment of Rs.283,39,735/-.
On receiving the full consideration as per the auction,sale deed
conveying the property was executed in favour of theappellant
on 26.5.2006 followed by issue of the sale certificate.
10.
It would be relevant to mention here that the borrower had
filed theWrit Petition 6471/2006 challenging the auction notice.

However, itwithdrew this Writ Petition on 1.6.2006 with liberty to
avail alternateremedy to challenge the auction that is provided
under SARFAESI Act.Thereafter, it filed the appeal under Section
18 of the SARFAESI Actbefore the DRT. This appeal was dismissed
by the DRT on 5.7.2007 withthe observations that the borrower
was only adopting dilatory tactics.This order was challenged by the
borrower in the form of writ petitionfiled before the High Court of
Karnataka, Circuit Bench,
Dharwad.
Thelearned Single
echoed the reasoning given by the DRT and
Judge
dismissed the
Writ Petition vide orders dated 19.9.2011. Against this
order, the
borrower approached the Division Bench by filing intra courtappeal

which has been allowed by the High Court. The sale in questionis
set aside.
11. The High Court took into consideration provisions of the subRule (5)and (6) of Rule 8 as well as Rule 9 of these Rules which are
as under: Rule 8 Sale of immovable secured assets:
(5) Before effecting sale of the immovable
property
referredto in sub-rule (1) of rule 9 the Authorised Officer shall

obtainvaluation of the property from an approved valuer
and inconsultation with the secured creditor, fix the reserve
price ofthe property and may sell the whole or any part
of
suchimmovable secured asset by any of the following
methods:(a)
By obtaining quotations from the persons dealing with

similar secured assets or otherwise interested in buying
thesuch assets;
(b)
By inviting tenders from the public.
(c)
By holding public auction; or
(d)
By private treaty.
6) The authorised officer shall serve to the borrower a notice of

30days for sale of the immovable secured assets, under sub-rule
(5):
Provide that if the sale of
the
such
secured
asset
beingeffected either inviting tenders from the public or
is
by
holdingpublic auction, the secured creditor shall cause a public

noticein two leading newspapers one in vernacular language
havingsufficient circulation in the locality by setting out
the
termsof sale, which shall include:

(a)
The decription of the immovable property to be sold,including
the details of the encumbrances known to thesecured creditor;

(b)
The secured debt for recovery of which the property

is to be sold.
c)
Reserve price, below which the property may not be sold.
(d)
Time and place of public auction or the time afterwhich sale

by any other mode shall be completed.
(e)
Depositing earnest money as may be stipulated by the

secured creditor.
(f)
Any other thing which the
authorised
material for a purchaser to know
in
officerconsiders it
order
tojudge the
nature and value of the property

9.
Time of same, issues of sale certificate and delivery of
possession, etc.(1)
No sale of immovable property under these rules shall take

place before the expiry of 30 days from the date on which
thepublic notice of sale is published in newspapers as
referred to in the proviso to sub-rule (6) or notice of sale has
been servedto the borrower.
(2)
The sale shall be confirmed in favour of the purchaser whohas

offered the highest sale price
quotation or offer
to
the
in
his bid
Authorised
or
Officer
tender
and
or
shall
besubject to confirmation by the secured creditor.

Provided that no sale under this rule shall be confirmed, if the
amount offered by sale price is less
than
the
reserve
price,
specified under sub-rule (5) of Rule 9.Provided further that if the

authorised officer fails to
obtaina price higher than the reserve
price, he may, with the consentof the borrower and the secured
creditor effect the sale at suchprice.
(3)
On every sale of immovable property, the
purchaser
shallimmediately pay a deposit of 25 percent of the amount of

thesale price, to the property shall forthwith be sold again.
(4)
The balance amount of purchase price payable shall paid
bythe purchaser
to
the
Authorised
Officer
on
or
before
thefifteenth day of confirmation of sale of the immovable propertyor

such extended period as may be agree upon in writing betweenthe
parties.
(5) In default of payment within the period mentioned in sub-rule
(4), the deposit shall be forfeited and the property shallbe resold
and the defaulting purchaser shall forfeit all claimto the property or
to any part of the sum for which it may besubsequently sold.
(6)
On confirmation of sale by the secured creditor and if theterms
of
payment
have
been
complied
with,
the
Authorised
Officerexercising the power of sale shall issue a certificate of saleof

the immovable property in favour of the purchaser in the formgiven
in Appendix V to these rules.
(7)
Where the
immovable
property
sold
is
subject
anyencumbrances, the authorised officer may,
if
the
to
thinks
fit,allow the purchaser to deposit with him the encumbrances and

anyinterest due thereon together with such additional
thatmay be sufficient to meet the
contingencies
cost,expenses and interest as may be
amount
or
determined
further
by
him.
[Providedthat if after meeting the cost of removing encumbrances

andcontingencies there is any surplus available out
of
the
moneydeposited by the purchaser such surplus shall be paid to

thepurchase within fifteen days from the date of finalisation ofthe
sale.
(8)
On
such
deposit
of
money
for
discharge
encumbrancesthe Authorised Officer shall issue or
of
cause
the
the
purchaser toissue notices to the persons interested in or entitled

to themoney deposited with him and take steps to make the
paymentaccordingly.
(9)
The authorised officer shall deliver the property
thepurchaser free from encumbrances known to the
to
secured
creditoron deposit of money as specified in sub-rule (7) above.

(10)
The certificate of sale issued under
shallspecifically mention that whether the
sub-rule
purchaser
(6)
has
purchasedthe immovable secured asset free from any encumbrances

known tothe secured creditor or not.
12.
The High Court has found the following informaties in
theconduct of the impugned sale:(i)
Before bringing the property for sale
vide
notice
dated28.4.2006 and 5.5.2006 fresh valuation of the property

from theaccrued valuer was not obtained by the Bank when
the
propertyworth crores had to be sold.
There was
infraction of sub-rule (5) of Rule 8 which is mandatory.

(ii) 30 days notice as required under sub-rule 6 of Rule 8 was
not given thereby committing breach of this mandatory
provisionas well.
iii)
According to the High Court publication in Tarun Bharat
Marathilanguage was effected just one day prior from receiving from
theprospective buyers. However,
publication
in
Marathi
languagecannot be considered as vernacular language as the

Belgaum is inKarnataka where the
vernacular
language
is
required
to
Kannada and notMarathi.

iv)
As per the sale notice, the appellant was
depositentire sale consideration within 15 days from the date

ofconfirmation of the sale. In the counter, the Bank has statedthat
the appellant has made the payment within the time allowedby the
Authorised Officer. When the sale consideration is Rs.2.16 crores,
the bank was required to give details of thepayment made by

the appellant in order to hold whether thepayment was made
within the time stipulated in the sale andwhether the time was
extended by the Officer by accepting thereasonable cause shown
by
the
purchaser
and
whether
thepurchaser is bonafide
purchaser or not. Unfortunately, the bank mhas failed to produce

these documents.
13.
We may point out, at the outset, that the opinion of the
HighCourt on the interpretation of sub-Rules (5)and (6)of Rule 8

of
theRules is flawless. In this behalf it would be pertinent to
mention thatthere is an imprimatur of this court as identical meaning

is assignedto these provisions. In the case of Mathew Varghese
v. M. AmrithaKumar &Ors.; 2014 (2) SCALE 331. The aforesaid
judgment has beenfollowed by this very Bench of the Court in
C.A. No. 3865 of 2014titled as J. Rajiv Subramaniyan & Anr. v.
M/s Pandiyas &
Ors.
Decidedon March 14, 2014, wherein the
earlier referred case has been discussedin the following manner:12. This Court in the case of Mathew
Varghese
Vs.
M.AmrithaKumar & Ors. examined the procedure required to

be followed
bythe banks or
other
financial
institutions
when the securedassets of the
borrowers are
to
the
be
sold
forsettlement of
banks/financialinstitutions.
detail
Court
The
dues
Court
sought
of
the
examined
theprovisions of the SARFAESI Act, 2002.

alsoexamined
the
detailed
procedure
to
in
The
be
followed
by
thebank/financial institutions under the Rules,
2002. This Courttook notice of Rule 8, which

to
Sale
relates
ofimmovable secured assets and Rule 9
which
relates to time ofsale, issue of sale certificate and delivery of

possession etc.With regard to Section 13(1), this Court
observed
free
hand
thatSection 13(1) of SARFAESI Act, 2002 gives a

to
thesecured creditor, for
the
purpose
of
enforcing the securedinterest without the intervention of

Court or Tribunal.
Butsuch enforcement should be strictly
in conformity with theprovisions of the SARFAESI Act,

2002. Thereafter, it is observed as follows:A reading of Section13(1), therefore, is clearto the
effect that while
on
the
SECUREDCREDITOR may be
SECURED
without
resorting
to
hand
any
entitled to enforce the
ASSETcreated in its favour
approaching
in
one
anycourt
on
its
own
proceedings
or
the Tribunal,such enforcement should be
conformity
with
the otherprovisions of the
SARFAESI Act.
13.
This
Court
further
observed
provisioncontained in Section 13(8) of the
that
SARFAESI
Act,
the
2002
isspecifically for the protection of the borrowers in as muchas,

ownership of the secured assets is a constitutional rightvested in
the borrowers and protected
Constitution of India.
under
Article
300A
ofthe
Therefore, the secured creditoras a trustee
of the secured asset can not deal with the samein any manner it
likes and such an asset can be
disposed
prescribed in the SARFAESI Act,
ofonly in the manner
2002.Therefore,
the creditor
should ensure that the borrower wasclearly put on notice of the

date and time by which
either
thesale
or
transfer
will
be
effected in order to provide therequired opportunity to the

borrower
to take all possiblesteps for retrieving his property.
Such a notice is alsonecessary to ensure that the process of sale

will
ensure
thatthe secured assets will be sold to
provide
maximum benefitto the borrowers. The notice is also necessary to

ensure thatthe secured creditor or any one on its
notallowed
to
exploit
proceedingsinitiated
the situation
under
the
by
SARFAESI
behalf
virtue
Act,
is
of
2002.
Thereafter, inParagraph 27, this Court observed as follows:-
27. Therefore, by virtue of the

provisions
of
the
stipulations containedunder the
SARFAESI
Act,
inparticular, Section
13(8), any sale or transfer of a SECUREDASSET,
cannot
take
place without duly informing theborrower of the time and date

of such sale or transfer inorder to enable the borrower to tender
the dues of theSECURED CREDITOR with all costs, charges and
expenses
andany such
sale
or
transfer
effected
without
complyingwith
the
said
statutory
requirement
would
be
aconstitutional violation and nullify the ultimate sale.
14. As noticed above, this Court also examined Rules 8 and
ofthe Rules, 2002. On a detailed analysis of Rules 8 and 9(1),it

has been held that any sale effected without complying withthe
same would be unconstitutional and, therefore, null andvoid.
15.
In
the
present
case,
there
is
an
additional
reason
fordeclaring that sale in favour of the appellant was a nullity.Rule

8(8) of the aforesaid Rules is as under:Sale by any method other than public auction or
publictender,
shall be on such terms as may
be
settled between the parties in writing.

16.
It is not disputed before us that there were no
terms
settledin writing between the parties that the sale can be affected
byPrivate Treaty. In fact, the borrowers respondent Nos. 1and
2 were not even called to the joint meeting between Bank
Respondent
No.3 and Ge-Winn held on 8thDecember, 2006.
Therefore, there
was a clear violation of
theaforesaid Rules
rendering the sale illegal.

17.
It must be emphasized that generally proceedingsunder
the SARFAESI Act, 2002 against the borrowers areinitiated only

when
the
borrower
is
in
dire-straits.
Theprovisions of the
SARFAESI Act, 2002 and the Rules, 2002 havebeen enacted to
ensure that the secured asset is not sold for

expected
that
all
the
banks
and
asong.
It
is
financialinstitutions which
resort to the extreme measures under
theSARFAESI Act, 2002
for sale of the secured assets to ensure,that such sale of the

asset provides maximum benefit to theborrower by the sale of
such asset. Therefore, the securedcreditors are expected to take
bonafide measures to ensurethat there is maximum yield from
such secured assets forthe borrowers. In the present case, Mr.
DhruvMehta has pointed out that sale consideration is only
Rs.10,000/-over the reserve price whereas
worth
muchmore.
question
the
property
was
It is not necessary for us to go into this
as,in our opinion, the sale is null and void being in
violation ofthe provision of Section 13 of the SARFAESI Act, 2002

and Rules 8 and 9 of the Rules, 2002.
14.
Thus, when the matter is to be examined from this angle
itcannot be said that the view of the High Court is perfunctory

orflawed.
Procedure
contained
in
the
aforesaid
Rules
was
admittedly notfollowed. Notwithstanding this position, Mr. Ranjit

Kumar,
learnedSenior Counsel appearing for the appellant
submitted that a contraryview is taken by this Court in General

Manager,
Sri
Ikbal & Ors.;
SiddeshwaraCooperative bank Limited and Anr. v.

(2013)
10
SCC
83wherein it is
mandatory provision of 30 days notice
held that the
canbe waived by the
borrower and in such an eventuality, the sale cannot be voided.
15.
After recapitulating the facts which have already been
narratedabove, his submission in this behalf was that the borrower

had, in thepresent case, delayed the sale of the property and he
was not entitledto take advantage of its own wrong. He dilated
this submission bypointing out that first notice for auction which
was
published
on11.9.2004, clear 30 days notice was provided
therein as the date ofauction was fixed as 15.10.2004. However,

conduct of
the
borrower
infiling frivolous Writ Petition and
obtaining interim order therein,desisted any intending purchaser

from coming forward and participatingin the auction. Further, even
when second notice for auction sale waspublished on 28.2.2005
and notice of less than 30 days was giventherein fixing the date
of auction as
23.1.2005,
validity of this notice.

expressed
its
intention
the
Instead,
to
borrower
at
settle
neverchallenged the
that
the
stage
matter
theborrower
by
offering
OTSproposal. The bank succumbed to this request of the borrower

treatingthe same to be a bonafide offer and even accepted the OTS
proposal
ofthe borrower. Here again
the
borrower
committed
default and neverremitted the money as per OTS arrangement

agreed
to
between
theparties. In this way, highlighting the
aforesaid blameworthy conduct ofthe borrower, Mr. Ranjit Kumar

submitted that it is estopped fromchallenging the validity of the
notice for auction. It was also pointedout that not only entire
amount is paid by the appellant towards thesale consideration, the
appellant has discharged statutory liabilities/encumbrances as well;
sale deed registered in its favour
way
back
on26.5.2006; sale
certificate issued; and the appellant is in possessionof this property

ever since. Therefore, the sale should not
invalidated.
have
been
Mr. A.B. Dial, learned Senior Counsel for
the
appellantBank in other appeal also argued on the same lines.

16.
Let us examine the aforesaid submission of the appellant in
thelight of the judgment in the case of Ikbal on which strong

reliance isplaced by the learned Senior Counsel. That was a case
where R-1 (theborrower) took a housing loan from the appellant
Bank by mortgagingcertain immovable property. As R-1 committed
default in repayment ofthe said housing loan, the Bank issued a
notice
to
him
Securatisation
on
and
30.6.2005under
Section
Reconstruction
of Financial Assets and
Enforcement of Security Interest
Act,
2002
13(2)
of
the
(theSARFAESI Act)
informing him that if he failed to discharge theoutstanding

dues within 60 days, the Bank may take action under Section
13(4) and the mortgaged property shall be sold. On 18.12.2005 the
Bankpublished the auction notice in the local newspapers and the
publicauction was conducted on 11.1.2006. The bid
of
the
auction-purchaserfor Rs. 8,50,000 was accepted being the highest

bid.
The
auction-purchaser paid 25% of the sale consideration
immediately but he did not make the payment of remaining 75%

within 15 days of the confirmation of sale. He made the final
payment on 13.11.2006 and the Bank issued the sale certificate in
his favour. As the proceeds from the
sale
of
the, mortgaged
property fell short of the total outstanding

borrower,
the
Bank
moved
the
amount
Joint
againstthe
Registrar
of
CooperativeSocieties for recovery of the outstanding amount. In

those proceedings, an ex parte award for the outstanding amount
was
passed
challenged
against
the
sale
theborrower R-1. It was then that
R-1
certificateissued in favour of the auction
purchaser in two writ petitions beforethe High Court. The Single

Judge of the High Court quashed
the
salecertificate issued in
favour of the auction-purchaser on the groundthat the mandatory

requirements of Rule 9 of the 2002 Rules were notfollowed and,
therefore, despite the remedy of appeal to the borrowerprovided
under Section 17 of the SARFAESI Act, a case was made out for
interference under Article 226 of the Constitution, which was
affirmedby the Division Bench of the High Court. The Bank and
the
auction-purchaser had filed the appeals challenging the
judgments of the High Court.

17.
This Court, after interpreting the provisions of
Rule
9,
returned acategorical opinion that the said provision is mandatory in

nature.
Itwas further
mandatory,
held
that
even
though
this
Rule
is
thatprovision is for the benefit of the borrower. The
Court held that it isa settled position in law that even if a provision
is mandatory, itcan always be waived by a party (or parties) for
whose
benefit
suchprovision has been made. The provision
in
Rule 9(1) being for thebenefit of the borrower and the provisions
contained in Rule 9(3) andRule 9(4) being for the benefit of the
secured creditor (or for thebenefit of the borrower), the secured

creditor and the borrower canlawfully waive their rights. These
provisions neither expressly norcontextually indicate other wise.
Obviously, the question whether thereis waiver or not depends on
the facts of each case and no hard and fastrule can be laid down in
this regard.
18.
In the facts of that case it was found
that
the
letter
dated13.11.2006 sent by the borrower to the Bank clearly depicted

that theborrower had waived his right under Rule 9 (1) and the
provisionscontained in Rule 9(3) and Rule 9(4) as well. It was also
found that atthe time of auction sale on 11.1.2006, the borrower
was present but didnot object to the auction being held before
expiry of 30 days from thedate of which public notice of sale was
published. Not
only
this,
heagreed that the bid given by
the
auction purchaser, which was thehighest bid, be accepted as the

auction purchaser happened
to
be
important feature which was noted
hisknown person. Another

was
that
theborrower
expressly gave consent in writing that the balance sale pricemay be

accepted from the auction purchaser
even
when
tendered
aftersome delay and the sale certificate be issued to him. There

was awritten agreement between the borrower and the Bank for
extension
oftime upto 15.4..2006 within which the auction
purchaser had made thepayment. On these facts, the court

came
to
the
conclusion
thatcondition in Rule 9(4) viz. such
extended period as may be agreed uponin writing between the
parties
would
be
treated
as
substantiallysatisfied. Again,
pertinently, the Writ Petition was filed by theborrower more

than 4 years after the issuance of the sale certificate.On these facts
the court concluded that there was a waiver of the
aforesaid
mandatory provisions by the borrower.

19.
It can, thus, be seen that there is no conflict between the two
sets of judgments namely Mathew Varghese case followed in
J.
RajivSubramaniyan case on the one hand and Ikbal's case on the

other hand.In the first set of cases the interpretation given to Rule
8 and 9 ofthe Rules hold that these Rules are mandatory. It is so
held even inIkbal's case. However, Ikbal's case proceeds further to
lay down theprinciple that since these provisions are for the
benefit
of
procedural
theborrower, borrower can always waive those

requirements.
consideration in the earlier
This
that
judgment
aspect
never
fell
for
twojudgments. Therefore, we see no
force in the contention of the

appellant
latter
in
learnedSenior Counsel of
Mathew
the
Varghese (supra) goes
contrary to the law laid down in Ikbal's case.

20.
The only question, therefore, is as to whether it can be
heldthat the borrower in the present case had also waived the
mandatoryprovisions of Rules 8 and 9 of the Rules. We
may
remark that it isexpressly clarified in Ikbal's case itself that the

question whetherthere is a waiver or not depends on the facts of
the each case and nohard and fast rule can be laid down in this
regard.
21.
We would like to point out at the outset that the argument
ofwaiver was not raised by the appellant in the High Court. In

fact,this ground is not even raised in the Special Leave Petition.
Theappellant's case rested with hammering the blameworthy
conduct of theborrower by relying upon the observations of the
DRT to the effect thatthe borrower had been adopting dilatory
tactics
and
delaying
therecovery of amounts due to the bank
somehow or the other. It was alsoargued that the appellant is a

bonafide purchaser and equities
are
infavour of the appellants
which should be balanced and the borrower isnot entitled to any

relief because of his intemperate conduct.
22.
Be as it may. Since the arguments is predicated on the
admittedfacts appearing on record, we proceed to examine the

same on merits.Our examination reveals that no case of waiver is
made out.
23.
In State of Punjab v. Davinder Pal Singh Bhullar & Ors.;
2011 (14) SCC 770; the Court explained the doctrine of waiver on
the
basisof earlier pronouncements which are taken
note
of
discussed in thefollowing manner:

37. In Manak Lal this Court held that alleged bias
of
aJudge/official/Tribunal does not render the
proceedings invalidif it is shown that the objection
in that
regard
andparticularly against the presence
of the said official inquestion, had not been taken by

the party even though the
partyknew about the
circumstances
to
giving
rise
the
allegations
about the alleged bias and was aware of its right to

challengethe presence of such official. The Court further
observed that:(SCC p. 431, para 8)
8. waiver cannot always and in
every
case
be
inferredmerely from the failure of the party to take the

objection.Waiver can be inferred only if and after it is shown
thatthe party knew about the relevant facts and was aware of
hisright to take the objection in question.
38.
Thus, in a given case if a party knows the material factsand
is conscious of his legal rights in that matter, but failsto take the
plea of bias at the earlier stage of
theproceedings, it creates
an effective bar of waiver against
him.In such facts and
circumstances, it would be clear that theparty wanted to take a

chance to secure a favourable order
fromthe official/court and
when he found that he was confronted withan unfavourable order,

he adopted the device of raising theissue of bias. The issue of
bias must be raised by the party atthe earliest. (See Pannalal Binjraj
v. Union of India
and
P.D.Dinakaran (1) v. Judges Enquiry
Committee.)
39.
In Power Control Appliances v. Sumeet Machines (P) Ltd. this
Court held as under: (SCC p. 457, para 26)

26. Acquiescence is sitting by, when
another
is
invadingthe
rights. It is a course of conduct inconsistent with theclaim. It

implies positive
acts;
not
merely
silence
orinaction such as
involved in laches. The acquiescence mustbe such as to lead to

the inference of a licence
sufficientto create a new right in the
defendant.
40.
Inaction in every case does not
lead
to
an
inference
ofimplied consent or acquiescence as has been held by this

Courtin P. John Chandy & Co. (P) Ltd. v. John P. Thomas.
Thus,
thenCourt
has
to
examine
the
facts
and
circumstances in anindividual case.

41.
Waiver is an
intentional
Itinvolves conscious
relinquishment
abandonment
of
an
of
existing
right,advantage, benefit, claim [pic]or privilege,
right.
legal
which
except forsuch a waiver, a party could have enjoyed. In fact,

it is
anagreement not to assert a right. There can be no
waiver unlessthe person who is said to have waived, is fully

informed as tohis rights and with full knowledge about
the
same,
heintentionally abandons them. (Vide Dawsons
Bank Ltd. v. NipponMenkwa Kabushiki Kaisha, Basheshar

Nath v. CIT, MademsettySatyanarayana v. G. Yelloji Rao,
Associated Hotels of India Ltd.v. S.B. Sardar Ranjit Singh,
Jaswantsingh Mathurasingh v.Ahmedabad Municipal Corpn.,
Sikkim Subba Associates v. State
ofSikkim and Krishna
Bahadur v. Purna Theatre.)

42.
This Court in Municipal Corpn. of Greater Bombay v. Dr
Hakimwadi
Tenants
Assn.
considered
the
issue
ofwaiver/acquiescence by the non-parties to the proceedings and

held: (SCC p. 65, paras 14-15)
14.
In
order
to
constitute
waiver,
there
must
be
voluntaryand intentional relinquishment of a right. The

essence of
estoppel,
awaiver is an estoppel and where there is no

there, is no waiver. Estoppel and waiver are
questions of conductand must necessarily be determined on

the facts of eachcase.
15.
There
is
no
abandonment.There
question
is
no
of
estoppel,
specific
plea
waiver
of
or
waiver,
acquiescence orestoppel, much less a plea of abandonment

of right. Thatapart, the question of waiver really does not
arise in thecase. Admittedly, the tenants were not parties
to theearlier proceedings. There is, therefore, no question
ofwaiver
of
rights
by
Respondents
4-7
nor
would
thisdisentitle the tenants from maintaining the writ petition.

24.
From what is argued by the appellants, at best it can
beinferred that the borrower tried to thwart the earlier attempts of

theBank in selling the property. When the first notice was issued,
theborrower filed the writ petition. However, it is to be borne in
mindthat in the said Writ Petition no interim order was passed

staking theauction on the stipulated date. The only stay granted
was
againstconfirmation of sale. That did not preclude anybody
from
participatingin the auction. We are mindful of the ground
realities that many
timespendency of such a
Writ Petition
challenging the auction notice andthe kind of stay granted, even

partial in nature, deter the intendingbuyers to come forward and
participate in the auction. Be as it may, wefind out that even in the
second attempt when the reserve price wasreduced to Rs. 2.39
crores, the highest bid received was in the sum ofRs. 2.25 crores.
Further, even the bid of the appellant which wasaccepted was in
the sum of Rs.2.16 crores. Likewise, after the secondauction when
the Bank requested the borrower to accept the bid ofRs.2.25
crores giving its reasons and the borrower instead of doing sotook
initiative
resulting
in
OTS
but
defaulted
therein,
it
would
merelyindicate that the borrower was at fault in not adhering to the

OTS. Byno logic it can be deduced therefrom that the Bank was
relieved fromits obligation not to follow the mandatory procedure
contained in theRules, while taking fresh steps for the disposal of
the property.
25.
The moot question
is,
even
if
there
were
delaying
tacticsadopted by the borrower in respect of first two auctions,

whether thatconduct of the borrower would amount to waiving
the
mandatoryrequirement of publishing subsequent notice dated
27.4.2006 fixing thedate of auction as 8.5.2006? Our answer has to
be in the negative. Theaforesaid conduct cannot be taken as waiver

to the mandatory conditionof 30 days notice for auction as well
as other requirements. Forexamining the plea of waiver, we will
have to see as to whether byimplied or express actions, the
borrower has waived the aforesaidmandatory requirement when
the property was put to sale. We do notfind, nor it is suggested,
even the slightest move on the part of theborrower in this regard
which may amount to waiver
either
express
orimplied. On the
contrary, when notice dated
27.4.2006
was wpublished,the
borrower
the
Petition
immediately
filed
Writ
6471
of
2006challenging the auction notice. Thus, its conduct, far from

waiving theaforesaid requirement, was to confront the bank by
questioning
itsvalidity. It is a different matter that it had
to
withdraw the saidwrit petition in view of availability of alternate

remedy. Immediately,it filed application under Section 18 of the
SARFAESI
Act.
There is,thus, not even an iota of material
suggesting any waiver on the part ofthe borrower.

26.
The moment we find that the mandatory requirement of the
Ruleshad not been waived by the borrower, consequences in law

have tofollow. As held in Mathew Vargheses case, when there is a
breach ofthe said mandatory requirement the sale is to be treated
as null andvoid. Moreover, the appellant have no answer to many
other infirmitiespointed out by the High Court. We, therefore, are of
the opinion thatpresent appeals lack merit.
27.
Before we part with, it is imperative to mention that
thepurchaser has paid a sum of Rs.1.86 crores towards purchase of

propertyand Rs.30 lakh towards moveable items to the Bank. He
has
also
spentRs.1,86,335/- towards registration fee and
Rs.15,62,400/- towards stampduty. In addition, dues towards

municipal
tax,
Sales
Tax
liability,dues of Employees State
Insurance Corporation, Employees Provident Fundand Belgaum

Industrial Cooperative Bank have also been paid. A total whereof
comes to Rs.49,91,000/-. These were
the
liabilities
of
theborrower. In this way, total amount of Rs.2,83,39,735/- is paid

bythe purchaser. He has also discharged municipal tax liability in
thesum of Rs.2,86,078/- for the period 1.4.2007 to 31.3.2009. As
we haveaffirmed the order of the High Court setting aside the sale,
we granttwo months time to the borrower to discharge the entire
liability ofthe Bank. The borrower shall also reimburse the amount
of registrationfee and stamp duty to the purchaser. The direction to
pay this amountis given having regard to the conduct of the
borrower on earlieroccasions. If the borrower pays the amount
due
to
the
Bank,registration charges, stamp duty as well as
amount of encumbrances paidby the purchaser, which was the

liability of the borrower i.e. a sum ofRs.49,91,000/- + 2,86,078/-,
the property shall revert
back to theborrower. If the aforesaid
amounts are not paid within the aforesaidtwo months, the Bank
shall be at liberty to proceed with the sale ofthe property following
due procedure under the law. In so
far
as
thepurchaser is
concerned,
he
shall
be
refunded
entire
amount
spent
by
thepurchaser, as mentioned above. We have consciously not

granted interestto the purchaser on the aforesaid amount, as the
purchaser has, in themeantime, utilized the property in question.
28.
Subject to the above, the appeals are dismissed.
J
(Surinder Singh Nijjar)
New Delhi,
April 22, 2014
...J.
(A.K.Sikri)

Tapesh Bagati Vs Union of India

Загружено:

Сведения о документе

Оригинальное название

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

Tapesh Bagati Vs Union of India

Загружено:

Авторское право:

Доступные форматы

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

Union of India & Ors

ADVOCATE FOR THE PETITIONER: PRIYA PURI MEHRA

IN THE SUPREME COURT OF INDIA

Union of India & Ors

OFFICE REPORT ON LIMITATION

The Petition is within time.

The Petition is barred by time and there is delay of______days

in filing the same against order dated__________and petition for

There is delay of_________days in refilling the petition and

for condonation of_________days delay in refilling has

IN THE SUPREME COURT OF INDIA

Union of India & Ors

Court. This certificate is given on the basis of the instructions

given by the Petitioner/Person authorised by the Petitioner whose

Filed on: 03.09.2015

(Mrs. PRIYA PURI)

] Central Rule: (Title)

] State Act: (Title)

] State Rule: (Title)

] Impugned Interim: (Date)

] Impugned Final Order/ Decree: (Date)

] High Court: Honble Court

] Tribunal/ Authority: (Name) N.A.

(a) Petitioner/Appellant No.1 Tapesh Bagati

(b) e-mail ID: hkpuriandco.@gmail.com

(a) Respondent No.1:

Union of India & Ors

(b) e-mail ID:

(a) Main category classification:

Not to be listed before: N.A.

Similar/ Pending matter: N.A.

Whether accused/ convict has surrendered:

Sentence Awarded: N.A.

Sentence Undergone: N.A.

Land Acquisition Matters:

Date of Section 4 notification: N.A.

Date of Section 6 notification: N.A.

Date of Section 17 notification: N.A.

Tax Matters: State the tax effect: N.A.

Special Category (first petitioner/ appellant only):

] Senior citizen > 65 years [ ] SC/ST [

Vehicle Number (in case of Motor Accident Claim matter): N.A.

Decided cases with citation: N.A.

AOR for petitioner(s)/ appellant(s)

Synopsis and List of Dates

Writ Petition with Affidavit

13. Annexure P-10

15. Annexure P-12

SYNOPSIS AND LIST OF DATES

administration and governance in Delhi during the course of this

The Lieutenant Governor of Delhi, appointed under Article 239AA of

Delhi State Legislative Assembly came into being

Delhi ceased to be a Part-C State consequent to the

Delhi Municipal Corporation Act, 1957 was enacted,

Provisions of the Government of Union Territories

Delhi Administration Act, 1966 was enacted.

Article 239AA included in the Constitution, vide the

Elections to the Fifth Delhi Legislative Assembly were

Aam Aadmi Party (AAP) formed Government with

Council of Ministers of GNCTD resigned.

Honble President of India imposed Presidents Rule