IN THE HIGH COURT OF DELHI AT NEW DELHI

1 (C) 5888/2015 & batch Page 1 of 194 * IN THE high COURT OF DELHI AT NEW DELHI Pronounced on: 04th August, 2016 + (C) & CM , 11083/2015, 13153/2015, 23565/2015, 5182/2016, 5183/2016, 12676/2016 & 16088/2016 GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI ..Petitioner Versus UNION OF INDIA ..Respondent + (C) & CM & 13616/2016 RAJENDER PRASHAD .. Petitioner Versus GOVT. OF NCT OF DELHI .. Respondent + (C) & CM , 16063/2015 & 16063/2016 NARESH KUMAR .. Petitioner Versus GOVT. OF NCT OF DELHI & ORS .. Respondents + (C) No. 8190/2015 & CM SANDEEP TIWARI .. Petitioner Versus GOVERNMENT OF NCT OF DELHI & ORS.. Respondents (C) 5888/2015 & batch Page 2 of 194 + (C) No. 8382/2015 & CM , 23564/2015, 25388/2015, 25389/2016 & 12674/2016 USMANI .. Petitioner Versus UNION OF INDIA & ORS .. Respondents + (C) & CM , 20896/2015, 12673/2016 & 20304/2016 UNION OF INDIA & ANR.

2 Petitioners Versus GOVT OF NCT OF DELHI & ANR.. Respondents + (C) & CM SANDEEP TIWARI .. Petitioner Versus GOVERNMENT OF NCT OF DELHI & ORS .. Respondents + (C) & CM Nos. 1425/2016 & 13619/2016 RAMAKANT KUMAR .. Petitioner Versus GOVERNMENT OF NCT OF DELHI .. Respondent + (Crl.) & & 4864/2016 GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI ..Petitioner Versus NITIN MANAVAT & ORS ..Respondents (C) 5888/2015 & batch Page 3 of 194 Advocates who appeared in the matters: For Petitioners: Mr. Rajeev Dhawan, Mr. Dayan Krishnan, Ms. Indira Jaising, Mr. Phoolka, Sr. Advocates with Mehra, Counsel, Ghose, ASC, Vij, Dev & Mr. Rohan, Advs. for petitioner/GNCTD in (C) Mr. Sanjay Jain, ASG with Singh, Shah Deo, Noor, Mr. Vidur Mohan, Bhardwaj, Mr. Aakash, Advs. for petitioner/UOI in (C) Mr. Siddharth Luthra, Sr.

3 Advocate with , Khazanchi, Narula, Advs. for the petitioner in (C) Nandrajog and , with Mehra, Counsel, Narayan, Ghose and Kalra, Rao, ASCs for petitioner/GNCTD in WP(Crl.) Mr. Kirti Uppal, Sr. Advocate with Vats, Rai, Ms. Sahiba Pantel, Advocates for the petitioners in (C) & 8190/2015. Shri Abhik Kumar and Shri Vivek Singh, the learned counsels for the petitioner in (C) Mr. Saxena, Advocates for the petitioner in (C) Mr. Neeraj Gupta, Adv. along with petitioner in person in (C) For Respondents: Mr. Sanjay Jain, ASG with Singh, CGSC, Daman Bhardwaj, CGSC, Makhija, CGSC, P. Bhardwaj, Mr. Sanjeev Uniyal, Shah Deo, Ali Noor, (C) 5888/2015 & batch Page 4 of 194 Bhardwaj, Mohan, Moktan & Bhushan, Advs. for Union of India. Mr. Rajeev Dhawan, Mr. Dayan Krishnan, Ms.

4 Indira Jaising, Mr. Phoolka, Mr. Rajiv Dutta, Ramachandran, Mr. Biswajit Bhattacharya, , Kumar, Sr. Advocates with Mehra, Counsel, Ghose, ASC, Mr. Gautam Narayan, ASC, Kalra, ASC Vij, Dev & Mr. Rohan, , Sandhu, Advs. for the respondent/GNCTD. Singh, Advocate for R-10 in (Crl.) For Intervener: Dr. Singhvi, Sr. Advocate with Prabhu, Adv. for applicant in CM & 5183/2016 in (C) CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE JAYANT NATH J U D G M E N T : , CHIEF JUSTICE 1. Though based on different set of facts, the controversy in all the petitions centers on common issues relating to the exercise of legislative power and executive control in the administration of National Capital Territory of DELHI (NCTD). 2. The parties to the writ petitions and the orders impugned have been set out in the following Table so as to get a glimpse of the controversy involved in each writ petition.

5 (C) 5888/2015 & batch Page 5 of 194 Writ Petition Parties Impugned order/action 1. (C) GNCTD vs. UOI Notifications dated and issued by the Govt. of India, Ministry of Home Affairs empowering the Lt. Governor to exercise the powers in respect of matters connected with 'Services' and directing the ACB Police Station not to take cognizance of offences against officials of Central Government. 2. (C) Rajender Prashad vs. GNCTD & Ors. Notification dated issued by the Directorate of Vigilance, GNCTD under the Commissions of Inquiry Act, 1952 without placing before the Lieutenant Governor for his views/concurrence. 3. (C) Naresh Kumar vs. GNCTD & Ors. Notification dated issued by the Revenue Department, GNCTD revising minimum rates of agricultural land (circle rates) under the provisions of Indian Stamp Act, 1899 and DELHI Stamp (Prevention of Undervaluation of Instrument) Rules without placing before the Lieutenant Governor for his views/concurrence.

6 4. (C) Sandeep Tiwari vs. GNCTD & Ors. Order passed by the Department of Power, GNCTD under DELHI Electricity Reforms Act, 2000 read with DELHI Electricity Reforms (Transfer Scheme) Rules, 2001 appointing the Nominee Directors on Board of Electricity Distribution Companies without placing before the Lieutenant Governor for his views/concurrence. 5. (C) Usmani vs. UOI & Anr. Notification dated issued by the Directorate of Vigilance, GNCTD under the Commissions of Inquiry Act, 1952 without placing before the Lieutenant Governor for his views/concurrence. 6. (C) UOI vs. GNCTD & Anr. Notification dated issued by the Directorate of Vigilance, GNCTD under the Commissions of Inquiry Act, 1952 without placing before the Lieutenant Governor for his views/concurrence. 7. (C) Sandeep Tiwari vs. GNCTD & Ors. Policy Directions dated issued by the Department of Power, GNCTD under Section 108 of Electricity Act, 2003 without placing before the Lieutenant Governor for his views/concurrence.

7 8. (C) Ramakant Kumar vs. GNCTD Notification dated issued by the Directorate of Vigilance, GNCTD under Commission of Inquiry Act, 1952 constituting the Commission of Inquiry without placing before the Lieutenant Governor for his views/concurrence. 9. (Crl.) GNCTD vs. Nitin Manawat Order passed by the , NCT of DELHI under Section 24 of appointing a Special Public Prosecutor to conduct the trial in FIR in the Special COURT under PC Act. 3. Except (C) and (Crl.) , in all other writ petitions the impugned orders have been challenged primarily on the ground that the said orders having been passed without placing the (C) 5888/2015 & batch Page 6 of 194 decision of the Council of Ministers before the Lt. Governor for his concurrence/views are illegal and unconstitutional. Out of the said petitions, (C) has been filed by the Union of India whereas the rest of the petitions are more or less in the nature of public interest litigation.

8 4. (C) and (Crl.) have been filed by the Govt. of NCT of DELHI (GNCTD). The grievance in (C) is that by virtue of the impugned notifications, the legislative and executive powers conferred on the Govt. of NCT of DELHI under Article 239AA of the Constitution in respect of matters relating to "services" have been withdrawn and are sought to be exercised by the Central Government, apart from curtailing the powers of the Anti Corruption Branch of Government of NCT of DELHI to take cognizance of offences against the officers, employees and functionaries of the Central Government. The primary contention is that the said notifications are contrary to the Constitutional scheme. 5. In (Crl.) , the appointment of a Special Public Prosecutor by the has been challenged contending inter alia that the of NCT of DELHI is not competent either to appoint a Special Public Prosecutor independently or to interfere with the appointment made by the Govt.

9 Of NCT of DELHI , having regard to the scheme of Article 239AA of the Constitution of India (for short 'Constitution') read with the provisions of the Government of NCT of DELHI Act, 1991 and the Rules made thereunder. 6. Before proceeding further, it is necessary to place on record that the hearing in this batch of writ petitions had commenced on on which date Shri Dayan Krishnan, the learned Senior Advocate appearing for (C) 5888/2015 & batch Page 7 of 194 the petitioner/GNCTD in (C) (agreed to be taken as a lead case) was heard in part. He had concluded his arguments on and thereafter from onwards, we had heard Shri Sanjay Jain, the learned ASG appearing for the respondents/Union of India in (C) on various dates till 7. At the request of the learned counsel for both the parties, the further hearing was adjourned from time to time to enable them to file the written synopsis in (C) 8.

10 On , fresh applications came to be filed on behalf of the Government of NCT of DELHI in all the writ petitions except (C) , with a prayer to refer the petitions to a Larger Bench contending that there is a conflict between the judgments rendered by the coordinate Benches of this COURT in Om Prakash Pahwa v. State of DELHI ; (1998) 46 DRJ 719, United RWAS Joint Action v. Union of India; (C) and batch dated and DELHI high COURT Bar Association v. Union of India; (2013) 203 DLT 129 on the issue whether the is bound by the aid and advice of the Council of Ministers under clause (4) of Article 239AA. 9. The submissions on behalf of both the parties on the said applications were heard on Though the learned Senior Counsel, Jaising appearing for GNCTD/applicant insisted on passing an order on the abovesaid applications stating that it is necessary to decide the same as a preliminary issue, we declined to do so having regard to the settled principle of law that a case cannot be referred to a larger Bench on mere asking of a party but it is essential for this COURT to take into consideration various factors including the applicability of the ratio decidendi of the judgment of (C) 5888/2015 & batch Page 8 of 194 co-ordinate Benches to the facts of the case on hand and a decision in that regard can be taken only after the hearing is concluded in all the writ petitions.