Tapesh Bagati vs Union of India

195
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

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Tapesh Bagati vs Union of India

Transcript of Tapesh Bagati vs Union of India

Page 1: 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

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IN THE SUPREME COURT 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

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

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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

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)

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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: Hon’ble 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: [email protected]

(c) Mobile phone number: N.A.

3. (a) Respondent No.1: Union of India & Ors

(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.

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(b) FIR No. Complaint Date:

(c) Police Station:

(d) Sentence Awarded: N.A.

(e) Sentence Undergone: N.A.

8. Land Acquisition Matters:

(a) Date of Section 4 notification: N.A.

(b) Date of Section 6 notification: N.A.

(c)( Date of Section 17 notification: N.A.

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

10. Special Category (first petitioner/ appellant only):

[ ] Senior citizen > 65 years [ ] SC/ST [ ] Woman/ child [ ] Disabled [ ] Legal Aid case

[ ] In custody

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

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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

5. Annexure P-2 Copy of the Media Report dated 18.05.2015 in PTI

45-52

6.

7.

Annexure P-3 Copy of the Media report dated 20.06.2015 appeared in the website FIRSTPOST.COM Annexure P-4 Copy of the Ministry of Home Affairs notification dated 21.05.2015.

53-59

60-63

8. 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

9.

10.

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

68-71

72-120

11. 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

121-122

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12. Annexure P-9 Copy of the order dated 29.05.2015 passed by this Hon’ble Court in SLP(Crl.) CRL. M. P. No. 9599 of 2015.

123-125

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 126-128

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. 129-131 15. Annexure P-12 Copy of the Press release dated 12.06.2015 by Raj Niwas 132

16. 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) 133-136 17. Letter 137

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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 Hon’ble 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-à-vis the administration of Delhi

It has been held by this Hon’ble Court that the doctrine of good

governance requires the Government to act only in the public

interest and for the welfare of its people.

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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 Hon’ble

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.

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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 providing for a Legislative

Assembly for Delhi.

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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 Hon’ble President of India imposed President’s 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

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relation to decision-making vis-à-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 Hon’ble 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

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9.6.2015

12.6.2015

20.6.2015

17.7.2015

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.

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

Municipal sanitation workers went on strike and the

same was called off only after the Press Release by

Raj Niwas dated 12.6.2015.

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.

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

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Lieutenant Governor of Delhi for approval.

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IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) No. of 2015

[Under Article 32 of the Constitution of India]

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: [email protected] 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

HON’BLE THE CHIEF JUSTICE AND HIS

HON’BLE COMPANION JUSTICES OF THE

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HON’BLE 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

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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

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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

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comprising the Chief Commissioner’s 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 Commissioner’s 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

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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 and powers of municipal

corporations and other local authorities, of

improvement 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

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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

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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.

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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.

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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.

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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

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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

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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:

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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

Page 29: Tapesh Bagati vs Union of India

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

Page 30: Tapesh Bagati vs Union of India

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.

Page 31: Tapesh Bagati vs Union of India

(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 quasi-

judicial 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

Page 32: Tapesh Bagati vs Union of India

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

Page 33: Tapesh Bagati vs Union of India

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 Hon’ble President

of India. On 16.02.2014, the Hon’ble President of India imposed

President’s 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.

Page 34: Tapesh Bagati vs Union of India

CONTROVERSY OVER THE POWERS OF THE GNCTD VIS-À-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.

Page 35: Tapesh Bagati vs Union of India

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

Page 36: Tapesh Bagati vs Union of India

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.

Page 37: Tapesh Bagati vs Union of India

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. Gamlin’s 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.

Page 38: Tapesh Bagati vs Union of India

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

Page 39: Tapesh Bagati vs Union of India

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.

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xiii. There was further confrontation over the decision of the

Chief Minster of the GNCTD to induct police officers from

Bihar in Delhi’s 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.

Page 41: Tapesh Bagati vs Union of India

xvi. The Union of India filed an SLP against the judgment dated

25.05.2015. This Hon’ble 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 Hon’ble 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

Page 42: Tapesh Bagati vs Union of India

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

Page 43: Tapesh Bagati vs Union of India

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.

Page 44: Tapesh Bagati vs Union of India

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

Hon’ble 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.

Page 45: Tapesh Bagati vs Union of India

B. FOR THAT under the Constitution, Delhi enjoys a special

status, as was held by this Hon’ble 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 set-

ups, 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

Page 46: Tapesh Bagati vs Union of India

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.

Page 47: Tapesh Bagati vs Union of India

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 Hon’ble 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

Page 48: Tapesh Bagati vs Union of India

governance. Governance is mainly in the hands of the

Executive

M. FOR THAT it was held by this Hon’ble 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 Hon’ble 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 Hon’ble 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]

Page 49: Tapesh Bagati vs Union of India

P. FOR THAT it was held by this Hon’ble Court in Almitra H.

Patel v. Union of India, (2000) 2 SCC 679 that this Hon’ble

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-à-vis the powers conferred

on the Administrator of Delhi.

T. FOR THAT conflicting views have been taken by this

Hon’ble 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.

Page 50: Tapesh Bagati vs Union of India

46. The Petitioner has not filed any other similar

Petitionseeking the same relief in any High Courts or this

Hon’ble Court.

PRAYER

In view of the aforesaid facts and circumstances, the Petitioner

most respectfully prays that this Hon’ble 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 THE

PETITIONERS AS IN DUTY BOUND SHALL EVER PRAY.

Page 51: Tapesh Bagati vs Union of India

DRAWN AND FILED BY:

PRIYA PURI ADVOCATE FOR THE PETITIONER

DRAWN ON: 03.09.2015

Filed on: 04.09.2015

Page 52: Tapesh Bagati vs Union of India

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

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,

Page 53: Tapesh Bagati vs Union of India

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

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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 ‘world’s most corrupt’ government body,

AAP said it was running short of funds and the civic body is

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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

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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

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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.

Meena’s appointment as ACB chief further strained the already

troubled relations of Lieutenant Governor’s 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 Meena’s credentials. He said the post of

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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 won’t 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

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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 AAP’s 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 pre-

poll 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

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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.

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ANNEXURE P-1

On collision course: Delhi CM Kejriwal steps on L-G Jung’s 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

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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 Minister’s 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 can’t 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 Kejriwal’s 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.

Kejriwal’s directions were reiterated by his secretary Rajendra Kumar

the next day. Files on the three reserved subjects are being routed

through Kejriwal’s office since then, with Raj Bhawan left awaiting

the home ministry’s 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

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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.”

Kejriwal’s 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

doesn’t 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 Kejriwal’s decision to induct six police officers

from Bihar in the state’s 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

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the country and the Centre was making a mockery of the system”.

In a statement issued on Tuesday, the Lt-Governor’s 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. Jung’s 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 government’s

ACB on a request from the AAP government.

The AAP attacked Lt-Governor Najeeb Jung and said that his

questioning of the ACB’s move to induct officers from Bihar was

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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-G’s

permission. And this comes after the Delhi HC’s order and the Delhi

Assembly’s resolution displaying the will of the people.”

Delhi government’s 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.

Page 67: Tapesh Bagati vs Union of India

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

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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

Page 70: Tapesh Bagati vs Union of India

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 Government’s 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.

Page 71: Tapesh Bagati vs Union of India

"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

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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

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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 Anti-

Corruption Branch and over Jung's powers to appoint key officers.

Page 74: Tapesh Bagati vs Union of India

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.

Page 75: Tapesh Bagati vs Union of India

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

Page 76: Tapesh Bagati vs Union of India

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. "Transfer-

posting 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.

Page 77: Tapesh Bagati vs Union of India

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 (Sixty-

ninth 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

Page 78: Tapesh Bagati vs Union of India

‘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.

Page 79: Tapesh Bagati vs Union of India

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

Page 80: Tapesh Bagati vs Union of India

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.

Page 81: Tapesh Bagati vs Union of India

ANNEXURE P-

GOVERNMENT 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.

Name of the officer (S/Shri/Ms.)

Present Posting

Posted as Remarks

1. Amar Nath, IAS CEO, DUSIB

Secretary (Health) with additional charge of CEO, DUSIB

Sh. Arun Baroka, IAS relieved of additional charge of Secretary (Health)

2. F.O. Hashmi, IAS Awaiting posting

Spl. Secretary (Health)

3. K.D. Dogra, DANICS

Addl. Secretary (PGMS)

Addl. Director (Education)

4. Geetika Sharma, DANICS

Director, NDMC

DC, EDMC Repatriated from NDMC Terms and conditions of deputation in EDMC will be settled in due course.

Page 82: Tapesh Bagati vs Union of India

5. C.R. Garg, DANICS DC, West Director, Delhi Jal Board

Terms and conditions of deputation in DJB will be settled in due course.

6. B.S. Jaglan, DANICS

Director, Delhi Jal Board

DC, West Repatriated from DJB

7. Ajay Kumar Bisht, DANICS

Director, DDA

Addl. Secretary (Power)

Repatriated from DDA

8. Sandeep Gulati, Adhoc DANICS

Awaiting posting

Asst. Director, Delhi Jal Board

Terms and conditions of deputation in DJB will be settled in due course

9. Meena Tyagi, Adhoc DANICS

Awaiting posting

Dy. Secretary (Power)

The above officers are directed to join duties today itself.

Sd/- (Rajendra Kumar)

Secretary (Services)

Page 83: Tapesh Bagati vs Union of India

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.

Page 84: Tapesh Bagati vs Union of India

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

Affairs, North Block, New Delhi.

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

Affairs, North Block, New Delhi.

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

India, Department of Personnel and Training (Room No.

215], North Block, New Delhi.

Sd/- (Rajendra Kumar)

Secretary (Services)

Page 85: Tapesh Bagati vs Union of India

ANNEXURE P-5

GOVERNMENT 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. 261

The Competent Authority is pleased to order transfer/posting

of following officers/officials with immediate effect:-

SI. No.

Name of the officer (S/Shri/Ms.)

Present Posting

Posted as Remarks

1. Raman Kumar

Bharti, Gr. I (DASS)

(DOB: 30.12.1966)

W&CD Power

Deptt.

2. Narain Singh, Gr.II

DASS (DOB:

09.11.1964)

PAO Health

3. Gopal Krishan, Gr.II

DASS (DOB:

14.12.1958)

DCO Power

4. Amar Pal Singh

Chauhan, Gr.III

(DASS) (DOB:

01.11.1971)

Awaiting

Posting

Health

5. Pramod Pathik,

Gr.III (DASS) (DOB:

Awaiting

posting

Urban

Develo-

Page 86: Tapesh Bagati vs Union of India

01.10.1974)

pment

6. Rajan Kaushik Gr. III

(DASS) (DOB:

24.11.1969)

Awaiting

posting

Finance

7. Lalita, Gr.III (DASS)

(DOB: 02.05.1971)

Awaiting

posting

Power

8. Seema Jain, Gr.III

(DASS) (DOB:

22.11.1965)

Awaiting

posting

Power

9. Brij Mohan Gupta,

Gr.III (DASS) (DOB:

18.01.1969)

Awaiting

posting

Home

The above officers/officials are directed to join duties today

itself.

Sd/- (Rajendra Kumar)

Secretary (Services)

Page 87: Tapesh Bagati vs Union of India

Order No. 261

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.

Page 88: Tapesh Bagati vs Union of India

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 Affairs, North Block, New Delhi.

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

Home Affairs, North Block, New Delhi.

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

India, Department of Personnel and Training (Room No.

215], North Block, New Delhi.

Sd/- (Rajendra Kumar)

Secretary (Services)

Page 89: Tapesh Bagati vs Union of India

ANNEXURE P-7

IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P. © NO. 5888/2015

GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI … Petitioner Through: 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 … Respondent

Through: 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: HON’BLE MR. JUSTICE RAJIV SHAKDHER

ORDER

29.05.2015 CM No. 10643/2015 (Exemption) 1. Allowed subject to just exceptions.

Page 90: Tapesh Bagati vs Union of India

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

Page 91: Tapesh Bagati vs Union of India

ANNEXURE P-9

ITEM NO.10 COURT NO.2 SECTION II

S U P R E M E C O U R T O F I N D I A

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.

Page 92: Tapesh Bagati vs Union of India

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

O R D E R

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.

Page 93: Tapesh Bagati vs Union of India

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) (SUMAN JAIN) AR-cum-PS COURT MASTER

Page 94: Tapesh Bagati vs Union of India

ANNEXURE P-10

GOVERNMENT OF NCT OF DELHI

SERVICES DEPARTMENT

SERVICES-I BRANCH

DELHI SECRETARIAT, NEW DELHI

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)

Secretary (Services) No. F.8/05/2014/S.I/Pt.I Dated 09.06.2015

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

Page 95: Tapesh Bagati vs Union of India

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

Affairs, North Block, New Delhi.

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

Affairs, North Block, New Delhi.

Page 96: Tapesh Bagati vs Union of India

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

India, Department of Personnel and Training (Room No.

215], North Block, New Delhi.

Sd/- (Rajendra Kumar)

Secretary (Services)

Page 97: Tapesh Bagati vs Union of India

ANNEXURE P-11

GOVERNMENT OF NCT OF DELHI

SERVICES DEPARTMENT

SERVICES-I BRANCH

DELHI SECRETARIAT, NEW DELHI

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)

Secretary (Services) No. F.8/05/2014/S.I/Pt.I/ Dated 09.06.2015

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

Page 98: Tapesh Bagati vs Union of India

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 Affairs, North Block, New Delhi.

Page 99: Tapesh Bagati vs Union of India

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

Home Affairs, North Block, New Delhi.

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

India, Department of Personnel and Training (Room No.

215], North Block, New Delhi.

Sd/- (Rajendra Kumar)

Secretary (Services)

Page 100: Tapesh Bagati vs Union of India

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.

Page 101: Tapesh Bagati vs Union of India

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 (Chairperson) B-635, Avantika, Rohini, Sector-1, New delhi-110085

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

G-2, Hamdard University Campus Hamdard Nagar, New Delhi

4. Ms. Sarika Chaudhary Member Room No. 600, AIWC Hostel

6, Bhagwandas Road,

Page 102: Tapesh Bagati vs Union of India

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

Page 103: Tapesh Bagati vs Union of India

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,

Delhi Secretariat, I.P. Estate, New 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

Page 104: Tapesh Bagati vs Union of India

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,

Delhi Secretariat, I.P. Estate, New Delhi

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

Page 105: Tapesh Bagati vs Union of India
Page 106: Tapesh Bagati vs Union of India

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 ..... Applicant Through: Mr. N. Hariharan, Senior Advocate

along with Mr. Rajiv Mohan, Mr. Siddharth

S. Yadav & Mr. Sahil Paul, Advocates.

Versus

GNCT OF DELHI ..... Respondent Through: 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

J U D G M E N T

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.

Page 107: Tapesh Bagati vs Union of India

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/-

Page 108: Tapesh Bagati vs Union of India

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

Page 109: Tapesh Bagati vs Union of India

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

Page 110: Tapesh Bagati vs Union of India

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

Page 111: Tapesh Bagati vs Union of India

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 120-

B/ 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.

Page 112: Tapesh Bagati vs Union of India

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

Page 113: Tapesh Bagati vs Union of India

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

Page 114: Tapesh Bagati vs Union of India

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) /86-

HP-II dated 1.8.86 and in exercise of the powers

Page 115: Tapesh Bagati vs Union of India

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

Page 116: Tapesh Bagati vs Union of India

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

Page 117: Tapesh Bagati vs Union of India

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

Page 118: Tapesh Bagati vs Union of India

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,

Page 119: Tapesh Bagati vs Union of India

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

Page 120: Tapesh Bagati vs Union of India

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

Page 121: Tapesh Bagati vs Union of India

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]

Page 122: Tapesh Bagati vs Union of India

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.

Page 123: Tapesh Bagati vs Union of India

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 set-

up 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

Page 124: Tapesh Bagati vs Union of India

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/Anti-

Corruption or Vigilance set-up and in which it is

necessary to obtain sanction for prosecution from a

Competent Authority of a Central Government

Department shall be referred to the 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 Anti-

Corruption 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

Page 125: Tapesh Bagati vs Union of India

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

Page 126: Tapesh Bagati vs Union of India

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]

Page 127: Tapesh Bagati vs Union of India

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 for effectively achieving the object of

successful investigation into the serious offences

mentioned in Section 5-A without unreasonably

Page 128: Tapesh Bagati vs Union of India

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-

Page 129: Tapesh Bagati vs Union of India

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

Page 130: Tapesh Bagati vs Union of India

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”.

Page 131: Tapesh Bagati vs Union of India

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

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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

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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

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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

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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

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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

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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:

Page 138: Tapesh Bagati vs Union of India

“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 a 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

Page 139: Tapesh Bagati vs Union of India

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

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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-à-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

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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

Page 142: Tapesh Bagati vs Union of India

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

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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

Page 144: Tapesh Bagati vs Union of India

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

Page 145: Tapesh Bagati vs Union of India

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

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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 :

Page 147: Tapesh Bagati vs Union of India

(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:

Page 148: Tapesh Bagati vs Union of India

“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

Page 149: Tapesh Bagati vs Union of India

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

Page 150: Tapesh Bagati vs Union of India

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

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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.

Page 152: Tapesh Bagati vs Union of India

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

Page 153: Tapesh Bagati vs Union of India

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

Page 154: Tapesh Bagati vs Union of India

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//

Page 155: Tapesh Bagati vs Union of India

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

Page 156: Tapesh Bagati vs Union of India

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 dues under OTS forRs.

1,91,70,000/- if OTS is 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 the

SARFAESI Act toborrowers and the sureties. 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.

Page 157: Tapesh Bagati vs Union of India

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

Respondent’s.

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.

Page 158: Tapesh Bagati vs Union of India

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.

Page 159: Tapesh Bagati vs Union of India

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 by letter dated 0.8.02.2006

sanctioned the above OTS 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.

Page 160: Tapesh Bagati vs Union of India

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 (GM-

RES) 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.

Page 161: Tapesh Bagati vs Union of India

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 sale proceeds of

the 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

Page 162: Tapesh Bagati vs Union of India

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. 2 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 a 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

Page 163: Tapesh Bagati vs Union of India

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 (GM-DRT) filed by

respondentno.1 in .the High. Court of

Karnataka praying forquashing order dated

20.06.2008 of 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.

Page 164: Tapesh Bagati vs Union of India

21.11.2011 The Division Bench of the High Court of

Karnataka allowed WA No. 6368/2011 (GM-

DRT).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 by the impugned judgment the

petitioner filed SLP being SLP (c) No.

35168/2011 and the Respondent 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 SLP’s and they

were converted to Civil Appeals being Civil

Appeal No. 35168 of 2011 & Civil Appeal No.

4680 of 2014 respectively.

22.04.2014 This Hon’ble Court vide order dated 22.04.2014

were pleased to dismiss the Civil Appeal

Page 165: Tapesh Bagati vs Union of India

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 also spent Rs.1,86,335/- towards

registration fee 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

Page 166: Tapesh Bagati vs Union of India

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 by the purchaser, as

mentioned above. We have consciously not

granted interest to the purchaser on the

aforesaid amount, as the purchaser has, in the

meantime, utilized the property in question.

Page 167: Tapesh Bagati vs Union of India

REPORTABLE

IN THE SUPREME COURT OF INDIA

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)

J U D G M E N T

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 thesaid loan, the bank took action under the

provisions of 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

Page 168: Tapesh Bagati vs Union of India

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

Page 169: Tapesh Bagati vs Union of India

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 a

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

Page 170: Tapesh Bagati vs Union of India

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,

Page 171: Tapesh Bagati vs Union of India

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 the Bank.

Instead, on15.11.2005, the borrower expressed its intention to

settle 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 a 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

Page 172: Tapesh Bagati vs Union of India

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 Judge

echoed the reasoning given by the DRT and 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.

Page 173: Tapesh Bagati vs Union of India

11. The High Court took into consideration provisions of the sub-

Rule (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 is

beingeffected either inviting tenders from the public or by

holdingpublic auction, the secured creditor shall cause a public

noticein two leading newspapers one in vernacular language

Page 174: Tapesh Bagati vs Union of India

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 officerconsiders it

material for a purchaser to know in 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.

Page 175: Tapesh Bagati vs Union of India

(2) The sale shall be confirmed in favour of the purchaser whohas

offered the highest sale price in his bid or tender or

quotation or offer to the Authorised Officer and 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

Page 176: Tapesh Bagati vs Union of India

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 to

anyencumbrances, the authorised officer may, if the thinks

fit,allow the purchaser to deposit with him the encumbrances and

anyinterest due thereon together with such additional amount

thatmay be sufficient to meet the contingencies or further

cost,expenses and interest as may be determined 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 of the

encumbrancesthe Authorised Officer shall issue or cause 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 to

thepurchaser free from encumbrances known to the secured

creditoron deposit of money as specified in sub-rule (7) above.

(10) The certificate of sale issued under sub-rule (6)

shallspecifically mention that whether the purchaser has

Page 177: Tapesh Bagati vs Union of India

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

Kannada and notMarathi.

iv) As per the sale notice, the appellant was required to

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,

Page 178: Tapesh Bagati vs Union of India

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 sought

to be sold forsettlement of the dues of the

banks/financialinstitutions. The Court examined in

detail theprovisions of the SARFAESI Act, 2002. The

Court alsoexamined the detailed procedure to be

Page 179: Tapesh Bagati vs Union of India

followed by thebank/financial institutions under the Rules,

2002. This Courttook notice of Rule 8, which relates

to Sale 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 thatSection 13(1) of SARFAESI Act, 2002 gives a

free hand 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 one hand any

SECUREDCREDITOR may be entitled to enforce the

SECURED ASSETcreated in its favour on its own

without resorting to anycourt proceedings or

approaching the Tribunal,such enforcement should be

in conformity with the otherprovisions of the

SARFAESI Act.”

13. This Court further observed that the

provisioncontained in Section 13(8) of the SARFAESI Act, 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 under Article 300A ofthe

Constitution of India. Therefore, the secured creditoras a trustee

Page 180: Tapesh Bagati vs Union of India

of the secured asset can not deal with the samein any manner it

likes and such an asset can be disposed ofonly in the manner

prescribed in the SARFAESI Act, 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 behalf is

notallowed to exploit the situation by virtue of

proceedingsinitiated under the SARFAESI Act, 2002.

Thereafter, inParagraph 27, this Court observed as follows:-

“27. Therefore, by virtue of the stipulations containedunder the

provisions of 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

Page 181: Tapesh Bagati vs Union of India

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 9

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

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ensure that the secured asset is not sold for asong. It is

expected that all the banks and 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 the property was

worth muchmore. It is not necessary for us to go into this

question 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 SiddeshwaraCooperative bank Limited and Anr. v.

Ikbal & Ors.; (2013) 10 SCC 83wherein it is held that the

mandatory provision of 30 days notice canbe waived by the

borrower and in such an eventuality, the sale cannot be voided.

Page 183: Tapesh Bagati vs Union of India

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, the borrower neverchallenged the

validity of this notice. Instead, at that stage theborrower

expressed its intention to settle the matter 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;

Page 184: Tapesh Bagati vs Union of India

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 have been

invalidated. 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 on 30.6.2005under Section 13(2) of the

Securatisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 (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

Page 185: Tapesh Bagati vs Union of India

property fell short of the total outstanding amount againstthe

borrower, the Bank moved the Joint Registrar of

CooperativeSocieties for recovery of the outstanding amount. In

those proceedings, an ex parte award for the outstanding amount

was passed against theborrower R-1. It was then that R-1

challenged the sale 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 held that even though this Rule is

mandatory, 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

Page 186: Tapesh Bagati vs Union of India

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 hisknown person. Another

important feature which was noted 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

Page 187: Tapesh Bagati vs Union of India

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 theborrower, borrower can always waive those

procedural requirements. This latter aspect never fell for

consideration in the earlier twojudgments. Therefore, we see no

force in the contention of the learnedSenior Counsel of the

appellant that judgment in Mathew 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

Page 188: Tapesh Bagati vs Union of India

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

Page 189: Tapesh Bagati vs Union of India

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 giving rise to 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

Page 190: Tapesh Bagati vs Union of India

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 relinquishment of a right.

Itinvolves conscious abandonment of an existing legal

right,advantage, benefit, claim [pic]or privilege, 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.,

Page 191: Tapesh Bagati vs Union of India

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 awaiver is an estoppel and where there is no

estoppel, there, is no waiver. Estoppel and waiver are

questions of conductand must necessarily be determined on

the facts of eachcase. …

15. There is no question of estoppel, waiver or

abandonment.There is no specific plea of 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

Page 192: Tapesh Bagati vs Union of India

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

Page 193: Tapesh Bagati vs Union of India

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 immediately filed the Writ Petition 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 Varghese’s 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.

Page 194: Tapesh Bagati vs Union of India

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

Page 195: Tapesh Bagati vs Union of India

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 ………….……………..J.

(Surinder Singh Nijjar) (A.K.Sikri)

New Delhi,

April 22, 2014