Full Text
HIGH COURT OF DELHI
TERRITORY OF DELHI ….Petitioner
W.P.(C) No.7887/2015 & CM Nos.15903/2015 & 13616/2016
RAJENDER PRASHAD ..... Petitioner
16063/2016 NARESH KUMAR ..... Petitioner
W.P.(C) No. 8190/2015 & CM No.12752/2016 SANDEEP TIWARI ..... Petitioner
2016:DHC:5534-DB
W.P.(C) No. 8382/2015 & CM Nos.17862/2015, 23564/2015, 25388/2015, 25389/2016 & 12674/2016
M.A. USMANI ..... Petitioner
UNION OF INDIA & ANR. ..... Petitioners
W.P.(C) No.9164/2015 & CM No.12754/2016 SANDEEP TIWARI ..... Petitioner
W.P.(C) No.348/2016 & CM Nos. 1425/2016 & 13619/2016
RAMAKANT KUMAR ..... Petitioner
GOVERNMENT OF NATIONAL CAPITAL
TERRITORY OF DELHI .…Petitioner
2016:DHC:5534-DB
Advocates who appeared in the matters:
For Petitioners: Mr. Rajeev Dhawan, Mr. Dayan Krishnan, Ms. Indira Jaising, Mr. H.S. Phoolka, Sr. Advocates with Mr.Rahul
Mehra, Sr.Standing Counsel, Mr.Sanjoy Ghose, ASC, Ms.Pratishtha Vij, Ms.Meher Dev & Mr. Rohan, Advs. for petitioner/GNCTD in W.P.(C) No.5888/2015.
Mr. Sanjay Jain, ASG with Mr.Kirtiman Singh, Ms.Prerna Shah Deo, Mr.W.A. Noor, Mr. Vidur Mohan, Mr.Evanesh Bhardwaj, Mr. Aakash, Advs. for petitioner/UOI in W.P.(C) No.8867/2015.
Mr. Siddharth Luthra, Sr. Advocate with Mr.Neeraj
K.Mishra, Mr.Gautam Khazanchi, Ms.Tara Narula, Advs. for the petitioner in W.P.(C) No.8382/2015.
Mr.Sudhir Nandrajog and Mr.P.P.Rao, Sr.Advs. with
Mr.Rahul Mehra, Sr.Standing Counsel, Mr.Gautam
Narayan, Mr.Sanjoy Ghose and Mr.Peeyoosh Kalra, Ms.Nandita Rao, ASCs for petitioner/GNCTD in
WP(Crl.) No.2099/2015.
Mr. Kirti Uppal, Sr. Advocate with Mr.Vaibhav Vats, Ms.Arpita Rai, Ms. Sahiba Pantel, Advocates for the petitioners in W.P.(C) Nos.9164/2015 & 8190/2015.
Shri Abhik Kumar and Shri Vivek Singh, the learned counsels for the petitioner in W.P.(C) No.7887/2015.
Mr. O.P. Saxena, Advocates for the petitioner in W.P.(C)
No.7934/2015.
Mr. Neeraj Gupta, Adv. along with petitioner in person in
W.P.(C) No.348/2016.
For Respondents: Mr. Sanjay Jain, ASG with Mr.Kiritiman Singh, CGSC, Mr.Ripu Daman Bhardwaj, CGSC, Mr.Akshay Makhija, CGSC, Mr.Dev P. Bhardwaj, Mr. Sanjeev Uniyal, Ms.Prerna Shah Deo, Mr.Waize Ali Noor, Mr.Gyanesh
2016:DHC:5534-DB
Bhardwaj, Mr.Vidur Mohan, Ms.Sanjugeeta Moktan &
Mr.Sumant Bhushan, Advs. for Union of India.
Mr. Rajeev Dhawan, Mr. Dayan Krishnan, Ms. Indira Jaising, Mr. H.S. Phoolka, Mr. Rajiv Dutta, Mr.Raju
Ramachandran, Mr. Biswajit Bhattacharya, Mr.P.P.Rao, Mr.S.Gurukrishna Kumar, Sr. Advocates with Mr.Rahul
Mehra, Sr.Standing Counsel, Mr.Sanjoy Ghose, ASC, Mr. Gautam Narayan, ASC, Mr.Peeyoosh Kalra, ASC
Ms.Pratishtha Vij, Ms.Meher Dev & Mr. Rohan, Mr.R.A.Iyer, Ms.Shikha Sandhu, Advs. for the respondent/GNCTD.
Mr.Kiritiman Singh, Advocate for R-10 in W.P.(Crl.)
No.2099/2015.
For Intervener: Dr. A.M. Singhvi, Sr. Advocate with Mr.R.S. Prabhu, Adv. for applicant in CM Nos.5182/2016 & 5183/2016 in
W.P.(C) No.5888/2015.
HON'BLE MR. JUSTICE JAYANT NATH
JUDGMENT
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. 2016:DHC:5534-DB W.P.(C) 5888/2015 & batch
┌─────────────────────────────────────────────────────────────────────────────────────────────────────────┐ │
┌──────────────────────────────────────────────────────────────────────────────────────────┐ │ Limited as under:- │ │ Sl. DISCOM Name of existing DPCL Nominees │ │ No. as Directors of DISCOMS │ ├──────────────────────────────────────────────────────────────────────────────────────────┤ │ 1. Tata Power Delhi 1. Sh.Sanjeev Singh, MD, DTL │ │ Distribution Limited 2. Sh.Anjani Kumar Sharma, │ │ 3. Sh.Sudhir Verma │ │ 4. Sh.Prem Prakash, GM (Tech.) │ │ DTL │ │ 5. Sh.Arun Kumar Garg, CA │ │ 2. BSES Rajdhani Power 1. Sh.Sanjeev Singh, MD, DTL │ │ Limite 2. Sh.Anjani Kumar Sharma, │ │ 3. Sh.Sudhir Verma │ │ 4. Sh.Prem Prakash, GM (Tech.) │ │ DTL │ │ 3. BSES Yamuna Power 1. Sh.Sanjeev Singh, MD, DTL │ │ Limited 2. Sh.Anjani Kumar Sharma, │ │ 3. Sh.Sudhir Verma │ │ 4. Sh.Prem Prakash, GM (Tech.) │ │ DTL │ │ You are requested to convey the approval to the │ │ concerned Distribution companies for further necessary action. │ │ W.P.(C) 5888/2015 & batch Page 163 of 194 │ │ 2016:DHC:5534-DB │ │ Yours Faithfully, │ │ Sd/- │ │ Dy.Secretary (Power)" │ └──────────────────────────────────────────────────────────────────────────────────────────┘
11. Central 1.25 crore 3.0 crore These revised rates shall come into force with immediate effect. By order and in the name of the Lt.Governor of the National Capital Territory of Delhi, Sd/- (Sanjay Kumar) IAS Spl.Inspector General (Registration) "
267. By the said Notification, the minimum rates of stamp duty on the instruments related to sale/transfer of agricultural land under the provisions of the Indian Stamp Act, 1899 read with Rule 4 of Delhi Stamp (Prevention of Undervaluation of Instruments) Rules, 2007 have been revised purportedly in exercise of the powers conferred by Section 27(3) of the Indian Stamp Act, 1899 and Rule 4 of the above-said Rules. 2016:DHC:5534-DB W.P.(C) 5888/2015 & batch
268. It is alleged by the petitioner that though the Notification has been issued in the name of the Lt. Governor, the prior approval of the Lt. Governor as required under the constitutional scheme was not obtained. The contention is that Lt. Governor being the competent authority to take a decision in that behalf, the Govt. of NCTD should not have issued the impugned notification without his prior approval.
269. It is sought to be explained by Shri Neeraj Gupta, the learned counsel appearing for the petitioner as under: Circle rates for agricultural land are the minimum rates at which agricultural land can be transferred or alienated and the subject of the stamp duty is an incidental outcome of the exercise of fixation of circle rates under Article 239AA(3)(a) of the Constitution. Hence, fixation of circle rate is directly relatable to Entry 18 of List II which lies within the exclusive domain of the Parliament. Executive power being co-extensive with the legislative power, the Govt. of NCT of Delhi cannot exercise any executive power in respect of 'transfer and alienation of agricultural land' and anything incidental thereto.
270. Contesting the writ petition, it is vehemently contended by Ms.Indira Jaising, the learned Senior Counsel appearing for the GNCTD that the subject of revision of circle rates is traceable to Entry 63 of List II, which deals with 'rates of stamp duty' and, therefore, GNCTD is empowered to exercise legislative power as well as executive control in terms of clauses (3) and (4) of Article 239AA of the Constitution.
271. While pointing out that the expression 'market value' in Section 27(2) and (3) of the Indian Stamp Act, 1899 has been inserted by the Indian Stamp 2016:DHC:5534-DB W.P.(C) 5888/2015 & batch (Delhi 2nd Amendment) Act, 2001 passed by the Legislative Assembly of NCTD, it is submitted by the learned Senior Counsel that as a corollary, the executive control also lies with the Govt. of NCT of Delhi. Thus, it is contended that the impugned notification under sub-Section (3) of Section 27 of the Indian Stamp Act, 1899 read with Rule 4 of the Delhi Stamp (Prevention of Under Valuation of Instruments) Rules, 2007 was rightly issued by GNCTD.
272. It is further submitted by the learned Senior Counsel that the plea of the petitioner that Entry 18 of List II, i.e., 'land' is attracted is absolutely wrong since stamp duty is levied on an instrument, i.e., document evidencing the transfer of agriculture land but not duty on land itself. Placing reliance upon State of Maharashtra v. Bharat Shanti Lal Shah; (2008) 13 SCC 5, The Calcutta Gas Company Ltd. v. State of West Bengal; AIR 1962 SC 1044 and State of Rajasthan v. G. Chawla; AIR 1959 SC 544, it is submitted by the learned Senior Counsel that liberal interpretation shall be adopted while interpreting the legislative entries by ascertaining the pith and substance of the enactment.
273. Section 27 of the Indian Stamp Act, 1899 which empowers the Government to notify minimum rates for valuation of land in relation to instruments, to the extent it is relevant for the purpose of the present petition, reads as under:- "27. Facts affecting duty to be set forth in instrument (1) xxx xxx xxx (2) xxx xxx xxx 2016:DHC:5534-DB W.P.(C) 5888/2015 & batch
3. In the case of instruments relating to land, chargeable with valorem duty, the Government may notify minimum rates for valuation of land."
274. It is submitted by Ms.Indira Jaising, the learned Senior Counsel that the term 'Government' under Section 27(3) must be read to mean "Government of NCT of Delhi" as defined in Rule 2(g) of the Transaction of Business Rules. The learned Senior Counsel has also relied upon Section 3(58) of the General Clauses Act under which 'State' has been defined as under:- "(58) ―State‖, - (a) as respects any period before the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean a Part A State, a Part B State, or a Part C State; and (b) as respects any period after such commencement, shall mean a State specified in the Schedule I to the Constitution and shall include a Union territory; " (emphasis supplied)
275. Therefore, according to the learned Senior Counsel the Government of NCT of Delhi shall be deemed to be a State/Government and it is competent to notify the circle rates under Section 27(3) of the Indian Stamp Act, 1899.
276. Supporting the contention of the petitioner, Shri Sanjay Jain, the learned ASG appearing for the Union of India submitted that the fixation of circle rates is directly relatable to Entry 18 of List II. It is also submitted that Entry 18 which refers to land in general and 'transfer and alienation of agriculture land' in particular makes it clear that the power to fixation of circle rates is directly relatable to Entry 18 which is an exempted subject 2016:DHC:5534-DB W.P.(C) 5888/2015 & batch under Clause (3) of Article 239AA. It is also submitted that the contention of GNCTD that the power is traceable to Entry 63 of List II is untenable since in terms of the said Entry 63, the stamp duty can be fixed for those documents which do not form part of List I. It is contended that being an exempted subject under Clause (3)(a) of Article 239AA, Entry 18 shall be treated as a part of List-I and, therefore, the Legislative Assembly of NCTD has no power to legislate with regard to the rates of stamp duty. The further contention is that though the term 'government' has not been defined in the Indian Stamp Act, 1899 it has to be read in consonance with the term 'government' used in Clause (B) of Section 9(2) of the said Act which would mean 'the State Government' as defined under Section 3(60) of the General Clauses Act. It is also pointed out that vide Notification No.S.O.1726 dated 22.07.1961 read with Notification No.S.O.2709 dated 07.09.1966 issued by the Ministry of Home Affairs, Government of India, the powers of the State Government under the Indian Stamp Act, 1899 have been delegated by the President to the Lt. Governor. It is also submitted that all revisions of rates of agricultural land that were made in the past were with the prior approval of the Lt. Governor and the impugned notification issued without such approval is unsustainable.
277. We have given our thoughtful consideration to the submissions made by both the parties. Entry 18 of List II upon which the writ petitioner and the Union of India have relied upon reads as under:- "18. Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agriculture loans; colonization." 2016:DHC:5534-DB W.P.(C) 5888/2015 & batch
278. Entry 63 of List II to which the power is sought to be traced by the Government of NCT of Delhi may also be reproduced hereunder:- "63. Rates of stamp duty in respect of documents other than those specified in the provisions of List I with regard to rates of stamp duty."
279. It is relevant to note that Entry 91 of List I deals with 'rates of stamp duty in respect of wills of exchange, cheques, promissory notes, bills of lading, letters of credit, policies of insurance, transfer of shares, debentures, proxies and receipts'.
280. On a careful analysis of Entry 63 of List II and Entry 91 of List I, it is clear that the power to impose/levy stamp duty has been divided between the Union and the State. While Union is empowered to levy stamp duty for the instruments specified in Entry 91 of List I, the States are empowered to levy stamp duty for the instruments specified in Entry 63 of List II. The law is well settled that the Entries mentioned in the three lists of the Seventh Schedule to the Constitution are fields of legislation which merely demarcate legislative fields between Parliament and State Legislatures whereas the source of legislative power is Article 246 of the Constitution.
281. Regarding the subject with which we are concerned in the present writ petition, as rightly submitted on behalf of the Government of NCT of Delhi, stamp duty is not a duty upon instrument but it is in reality a duty on transfer of property. In other words, the occasion for levy of stamp duty is the document which is executed as distinguished from the transaction which is embodied in the document.
282. For the aforesaid reasons, we agree with the submissions of Ms.Indira Jaising, the learned Senior Counsel that the power to revise the 2016:DHC:5534-DB W.P.(C) 5888/2015 & batch circle rates is traceable to Entry 63 of List II but not to Entry 18 as sought to be contended by the writ petitioner and Union of India. Entry 63 of List II not being an exempted matter under Clause (3)(a) of Article 239AA of the Constitution, the Legislative Assembly of NCT of Delhi has power to make laws in respect of the same and consequently the executive control also lies with the Government of NCT of Delhi. To that extent, we find force in the submission of Ms.Indira Jaising, the learned Senior Counsel appearing for Government of NCT of Delhi.
283. However, the fact remains that the impugned notification dated 04.08.2015 came to be issued only on the decision of the Council of Ministers without seeking the views/concurrence of the Lt. Governor. As expressed in Paras 107, 108, 116 and 117 (supra), such procedure is contrary to the constitutional scheme. Therefore, though the power to revise the circle rates lies with the Government of NCT of Delhi, no order as such can be passed unless the decision of the Council of Ministers is communicated to the Lt. Governor and no reference is required to the Central Government as provided in Chapter V of the Transaction of Business Rules.
284. Since no such procedure was followed, the impugned notification is illegal and liable to be quashed. W.P.(C) No.348/2016 (Ramakant Kumar Vs. Govt. of NCT of Delhi)
285. The petitioner who claims to be a practicing Advocate filed this writ petition as a Public Interest Litigation with a prayer to quash the Notification dated 22.12.2015 issued by the Directorate of Vigilance, Government of NCT of Delhi under Section 3 of the Commission of Inquiry Act, 1952 thereby appointing the Commission of Inquiry to inquire into the allegations 2016:DHC:5534-DB W.P.(C) 5888/2015 & batch regarding irregularities in the functioning of Delhi and District Cricket Association.
286. The impugned notification dated 22.12.2015 reads as under:- "DIRECTORATE OF VIGILANCE NOTIFICATION Delhi, the 22nd December, 2015 No.F.01/66/2015/DOV/15274-15281 - Whereas, over the past few months, the Govt. of National Capital Territory of Delhi received several complaints by retired Indian Cricketers, that included among them a few legends of the game, about a series of alleged malpractices and financial irregularities in the functioning of Delhi & District Cricket Association (DDCA) and maladministration of the game of cricket in Delhi. In July, 2015, the Government also received a letter from the Ministry of Youth Affairs and Sports, Govt. of India, requesting to take appropriate action into matters of irregularities committed by Delhi & District Cricket Association. And whereas, pursuant to these complaints and Govt. of India communication, the Govt. of NCT of Delhi set up a three member committee to enquire into the matter. The Committee made several recommendations with regard to cleaning up the affairs of DDCA. One of the recommendations was to consider appointing a Commission of Inquiry under the Commissions of Inquiry Act, 1952 to probe various wrong doings/allegations among other issues pertaining to DDCA. And whereas the matter was placed before the Council of Ministers for consideration. After deliberations, the Council of Ministers resolved vide Cabinet decision No.2274 dated 21/12/2015 to constitute a Commission of Inquiry under the Commissions of Inquiry Act, 1952. And whereas the following Resolution was adopted by the Delhi Legislative Assembly on 22/12/2015:- 2016:DHC:5534-DB W.P.(C) 5888/2015 & batch "That having noted with grave concern the serious allegations regarding irregularities in the functioning of the DDCA, this House resolves that: Pursuant to Section 3 of the Commission of Inquiry Act, 1952, a Commission of Inquiry be constituted by the Government of the National Capital Territory of Delhi to inquire into these allegations. This House further resolves that: “The Government may prescribe appropriate terms of reference for the Commission, as it deems fit." Now, therefore, in exercise of the powers conferred by Section 3 of the Commission of Inquiry Act, 1952, the Govt. of NCT of Delhi hereby appoints the Commission of Inquiry consisting of Sh.Gopal Subramanium, Senior Lawyer (Supreme Court) and former Solicitor General of India. The terms of reference of the Commission shall be to conduct inquiry into the:- (a) working, management and administration (including alleged financial irregularities) of DDCA; (b) whether such practices have been conducive to the game of cricket;
(c) recommendations to make DDCA an institution compatible with international standards;
(d) identify any acts of omission and commission by DDCA and its office bearers during the period between January 1, 1992 and November 30, 2015 and fix responsibility (e) and whether such acts of omission need to be pursued and if so, in what manner; (f) recommendations to make DDCA an effective and transparent body so that it could promote the glorious game of cricket and identify and nurture talent. Sh.Gopal Subramanium shall be paid Rs.One for this assignment. 2016:DHC:5534-DB W.P.(C) 5888/2015 & batch The Commission shall submit its report as soon as possible but not later than three months from the date of its first sitting. Having regard to the nature of inquiry to be made by the Commission and other circumstances of the case, all the provisions of sub-section-2, sub-section-4, sub-section-5 and sub-section-5A of Section-5 of the said Commission of Inquiry Act, 1952 shall be applicable to the Commission, and the Govt. of NCT of Delhi in exercise of the powers conferred under subsection-1 of Section-5 of the Commissions of Inquiry Act, 1952 hereby directs that all provisions of the sub-sections-2,3,[4] and 5A of that section shall apply to the Commission.
287. As is evident from the impugned Notification itself, the Commission of Inquiry has been appointed on the basis of the resolution adopted by the Legislative Assembly of NCTD dated 22.12.2015. The fact that the said appointment was made without placing the matter before the Lt. Governor of NCTD seeking his views/concurrence is not in dispute.
288. The question whether GNCTD can be treated as "appropriate Government" within the meaning of Section 2(a) of the Commission of Inquiry Act, 1952 has been considered in detail in W.P.(C) Nos.7887/2015, 8382/2015 and 8867/2015 and at Paras 234 and 235 (supra), we have concluded that "appropriate Government" to appoint a Commission of Inquiry under Section 3 shall be the Lt. Governor of NCT of Delhi only. Therefore, the appointment of the Commission of Inquiry merely on the basis of the Cabinet decision without approval of the Lt. Governor is without jurisdiction.
289. In the light of the conclusion we have already reached, the impugned notification dated 22.12.2015 under which the Commission of Inquiry has 2016:DHC:5534-DB W.P.(C) 5888/2015 & batch been appointed on the basis of the resolution adopted by the Legislative Assembly of NCTD without seeking the views/concurrence of the Lieutenant Governor is without jurisdiction and illegal. W.P.(Crl.) No.2099/2015 (Govt. of NCT of Delhi Vs. Nitin Manavat & Ors.)
290. The Government of NCT of Delhi filed this petition challenging the judicial order passed by the Special Judge-07 (PC Act Cases of ACB, GNCTD) in FIR No.21/2012 titled State v. Nitin Manavat and seeking a direction to the Special Judge not to permit anyone other than the Special Public Prosecutor notified under Section 24(8) Cr.P.C. by the Government of NCT of Delhi to act as Special Public Prosecutor in the said proceedings.
291. The facts in brief are as under.
292. On the basis of information received from one Vivek Garg, Advocate with respect to allotment of work relating to CNG Fitness Certificates in the Transport Department, GNCTD, FIR No.21/2012 was registered on 17.12.2012 by the ACB, GNCTD for the offences punishable under Sections 409, 420, 120B and 34 of IPC read with Section 13 of the Prevention of Corruption Act.
293. By order dated 03.09.2015 passed by the Home (Police-II) Department, GNCTD, Mr. B.S. Joon, Advocate was appointed as Special Public Prosecutor to conduct the cases relating to CNG Fitness Scam on behalf of Vigilance Department, GNCTD in the trial court.
294. However, on a request made by the Joint Commissioner of Police, ACB, the Lt. Governor on 04.09.2015 accorded approval for appointment of Mr. Sanjay Kumar Gupta, Advocate as Special Public Prosecutor to conduct the prosecution in FIR No.21/2012 dated 17.12.2012. 2016:DHC:5534-DB W.P.(C) 5888/2015 & batch
295. By Notification dated 07.09.2015 issued by the Home (Police-II) Department, GNCTD, in exercise of the powers conferred under Section 24(8) of Cr.P.C., Mr. B.S. Joon has been appointed as Special Public Prosecutor to conduct the case in FIR No.21/2012. Subsequently, Mr. B.S. Joon filed an application before the Special Judge-07 (PC Act Cases of ACB) seeking a direction to the Investigating Officer to hand over the police file to him as he has been appointed as Special Public Prosecutor by GNCTD vide Notification dated 07.09.2015. However, the Investigating Officer had placed on record the intimation regarding the appointment of Shri Sanjay Kumar Gupta as Special Public Prosecutor by the Lt. Governor vide order dated 04.09.2015.
296. The learned Special Judge by order dated 07.09.2015 dismissed the application filed by Mr. B.S. Joon holding that in view of Article 239AA of the Constitution, the Lt. Governor is the competent authority to appoint a Public Prosecutor.
297. Aggrieved by the same, this writ petition has been filed by the Government of NCT of Delhi under Article 226 and 227 of the Constitution read with Section 482 of Cr.P.C. to quash the order of the Special Judge dated 07.09.2015. It is contended by the petitioner/Government of NCT of Delhi that the learned Special Judge erred in holding that under Article 239AA of the Constitution, the Lt. Governor is competent to appoint a public prosecutor. It is also contended that the appointment of Mr. Sanjay Kumar Gupta with the purported "approval" of the Lt. Governor was illegal since the said appointment was made unilaterally by the Lt. Governor without reference to the GNCTD. The further contention is that it is the elected Government that is empowered in terms of Entries 1 and 2 of List III 2016:DHC:5534-DB W.P.(C) 5888/2015 & batch of Seventh Schedule to the Constitution to enforce and deal with 'criminal law' and 'criminal procedure' in GNCTD.
298. Shri P.P. Rao, the learned Senior Advocate who appeared on behalf of the Government of NCTD/writ petitioner submitted -
(i) The "approval" accorded by the Lt. Governor vide letter dated
04.09.2015 for the appointment of Mr. Sanjay Kumar Gupta as Special Public Prosecutor is without authority of law since the Minister-in-charge alone is competent to make such appointment in terms of Section 44 of the GNCTD Act, 1991 read with Rule 2 of GNCTD (Allocation of Business) Rules, 1993 and Item 10(6) of the Schedule annexed thereto.
(ii) Even as per Rule 15 of the Transaction of Business of the
Government of NCT of Delhi Rules, 1993, disposal of such matters is permissible by or under the authority of the Minister-in-charge i.e. Home Minister and the Lt. Governor has no role to play.
(iii) Since the appointment of Special Public Prosecutor is not relatable to Entries 1, 2 or 18 of List II of Seventh Schedule to the Constitution which are exempted matters under Clause (3) of Article 239AA, Clause (4) of Article 239AA is not at all attracted. On the other hand, the appointment of Public Prosecutor is expressly relatable to Entry 2 (Criminal Procedure) List-III (Concurrent List) in respect of which the power to make laws has been expressly conferred upon the Legislative Assembly of NCTD. Consequently, the executive power in relation to the said matters also vests with GNCTD. 2016:DHC:5534-DB W.P.(C) 5888/2015 & batch
(iv) Placing reliance upon R. Sarala v. T.S. Velu; (2000) 4 SCC 459 and State of U.P. & Anr. v. Johri Mal; (2004) 4 SCC 714, it is contended that the appointment of Public Prosecutor under Section 24 of Cr.P.C. is independent of Police or any other executive wing of the State.
299. Section 24 of the Criminal Procedure Code, 1973 which provides for appointment of Public Prosecutors, to the extent it is relevant for the purpose of the present case, reads as under: "24. Public Prosecutors. - (1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be. xxxx xxxx xxxx xxxx (8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor. xxxx xxxx xxxx xxxx" (emphasis supplied)
300. As could be seen, Section 24(8) of Cr.P.C. empowers the State Government for appointing a Special Public Prosecutor for the purposes of any case or class of cases. Admittedly, NCT of Delhi is a Union Territory and not a State. As per Sections 3(8), 3(58) and 3(60) of the General Clauses Act, 1897, the expression 'State Government' for the purpose of a Union Territory means the President and includes the Administrator in terms 2016:DHC:5534-DB W.P.(C) 5888/2015 & batch of Article 239 of the Constitution read with the Notification dated 20.03.1974 {See Para 167 (supra)} under which the Administrators of all the Union Territories were empowered to exercise the powers of the State Government under Cr.P.C. So far as NCT of Delhi is concerned, the 'State Government' thus means the Lt. Governor for the purpose of Section 24(8) of Cr.P.C. However, the power to appoint a Public Prosecutor is relatable to Entries 1 and 2 of List III in respect of which the Government of NCT of Delhi has legislative competence under Article 239AA of the Constitution. As a corollary, the exercise of the functions relating to the said subject by the Lt. Governor under Article 239AA(4) of the Constitution shall be on the aid and advice of the Council of Ministers with the Chief Minister at the head.
301. Hence, we are unable to accept the contention of the Union of India that the Council of Ministers have no role to play in exercise of the powers under Section 24(8) of Cr.P.C. In our considered opinion, the Lt. Governor under Section 24(8) of Cr.P.C. does not act eo-nominee but exercises the executive functions of the State. Hence, the said power has to be exercised on the aid and advice of the Council of Ministers in terms of Clause (4) of Article 239AA of the Constitution.
302. For the above reasons, we are of the view that it is not open to the Lt. Governor to appoint the Special Public Prosecutor on his own without seeking aid and advice of the Council of Ministers.
303. In the circumstances, the impugned order dated 07.09.2015 passed by the Special Judge-07 in FIR No.21/2012 is hereby set aside and there shall be a direction to the Special Judge to pass an appropriate order afresh in accordance with law. 2016:DHC:5534-DB W.P.(C) 5888/2015 & batch Conclusions:-
304. The conclusions in this batch of petitions may be summarized as under:-
(i) On a reading of Article 239 and Article 239AA of the Constitution together with the provisions of the Government of National Capital Territory of Delhi Act, 1991 and the Transaction of Business of the Government of NCT of Delhi Rules, 1993, it becomes manifest that Delhi continues to be a Union Territory even after the Constitution (69th Amendment) Act, 1991 inserting Article 239AA making special provisions with respect to Delhi.
(ii) Article 239 of the Constitution continues to be applicable to NCT of
(iii) The contention of the Government of NCT of Delhi that the
Lt. Governor of NCT of Delhi is bound to act only on the aid and advice of the Council of Ministers in relation to the matters in respect of which the power to make laws has been conferred on the Legislative Assembly of NCT of Delhi under clause (3)(a) of Article 239AA of the Constitution is without substance and cannot be accepted.
(iv) It is mandatory under the constitutional scheme to communicate the decision of the Council of Ministers to the Lt. Governor even in relation to the matters in respect of which power to make laws has been conferred on the Legislative Assembly of NCT of Delhi under 2016:DHC:5534-DB W.P.(C) 5888/2015 & batch clause (3)(a) of Article 239AA of the Constitution and an order thereon can be issued only where the Lt. Governor does not take a different view and no reference to the Central Government is required in terms of the proviso to clause (4) of Article 239AA of the Constitution read with Chapter V of the Transaction of Business of the Government of NCT of Delhi Rules, 1993.
(v) The matters connected with 'Services' fall outside the purview of the
Legislative Assembly of NCT of Delhi. Therefore, the direction in the impugned Notification S.O.1368(E) dated 21.05.2015 that the Lt. Governor of the NCT of Delhi shall in respect of matters connected with 'Services' exercise the powers and discharge the functions of the Central Government to the extent delegated to him from time to time by the President is neither illegal nor unconstitutional.
(vi) The direction in the impugned Notification S.O.1896(E) dated
23.07.2014 as reiterated in the Notification S.O.1368(E) dated 21.05.2015 that the Anti-Corruption Branch Police Station shall not take any cognizance of offences against officers, employees and functionaries of the Central Government is in accordance with the constitutional scheme and warrants no interference since the power is traceable to Entry 2 (Police) of List II of the Seventh Schedule to the Constitution in respect of which the Legislative Assembly of NCTD has no power to make laws. 2016:DHC:5534-DB W.P.(C) 5888/2015 & batch
(vii) Notification No.F.5/DUV/Tpt./4/7/2015/9386-9393 dated 11.08.2015 issued by the Directorate of Vigilance, Government of NCT of Delhi under Section 3 of the Commission of Inquiry Act, 1952 appointing the Commission of Inquiry for inquiring into all aspects of the award of work related to grant of CNG Fitness Certificates in the Transport Department, Government of NCT of Delhi is illegal since the same was issued without seeking the views/concurrence of the Lt. Governor as provided under Rule 10 and Rule 23 read with Chapter V of Transaction of Business Rules, 1993.
(viii) For the same reasons, the Notification No.F.01/66/2015/DOV/15274-
15281 dated 22.12.2015 issued by the Directorate of Vigilance, Government of NCT of Delhi under Section 3 of the Commission of Inquiry Act, 1952 appointing the Commission of Inquiry to inquire into the allegations regarding irregularities in the functioning of Delhi and District Cricket Association is also declared as illegal.
(ix) The appointment of Nominee Directors of Government of NCT of
Delhi on Board of BSES Rajdhani Power Limited, BSES Yamuna Power Limited and Tata Power Delhi Distribution Limited by the Delhi Power Company Limited on the basis of the recommendations of the Chief Minister of Delhi without communicating the decision of the Chief Minister to the Lt. Governor of NCT of Delhi for his views is illegal.
(x) The proceedings of the Government of NCT of Delhi, Department of
Power No.F.11(58)/2010/Power/1856 dated 12.06.2015 issuing policy 2016:DHC:5534-DB W.P.(C) 5888/2015 & batch directions to the Delhi Electricity Regulatory Commission regarding disruption in electricity supply to consumers and compensation payable in respect thereof are illegal and unconstitutional since such policy directions cannot be issued without communicating to the Lt. Governor of NCT of Delhi for his views.
(xi) The Notification No.F.1(1953)/Regn.Br./Div.Com/HQ/2014/191 dated 04.08.2015 issued by the Government of NCT of Delhi, Revenue Department in exercise of the powers conferred by sub-section(3) of Section 27 the Indian Stamp Act, 1899 (2 of 1899) and Rule 4 of the Delhi Stamp (Prevention of Under - Valuation of Instruments) Rules, 2007 revising the minimum rates for the purpose of chargeability of stamp duty on the instruments related to sale/transfer of agriculture land is illegal since the said notification was issued without seeking the views/concurrence of the Lt. Governor of NCT of Delhi as required under the constitutional scheme.
(xii) Though the Lt. Governor of NCT of Delhi is competent to appoint the
Special Public Prosecutor under Section 24(8) of Cr.P.C., such power has to be exercised on the aid and advice of the Council of Ministers in terms of Clause (4) of Article 239AA of the Constitution.
305. In result, W.P.(C) No.5888/2015 is dismissed, W.P.(C) Nos.7887/2015, 7934/2015, 8190/2015, 8382/2015, 8867/2015, 9164/2015 and 348/2016 are allowed and W.P.(Crl.) No.2099/2015 is disposed of with directions. 2016:DHC:5534-DB W.P.(C) 5888/2015 & batch
306. C.M. Nos. 5182/2016 is disposed of permitting intervention of the applicant/Reliance Industries Ltd. in W.P.(C) No.5888/2015. The other application being C.M.No.5183/2016 is dismissed.
307. C.M. No.16088/2016 in W.P.(C) No.5888/2015, C.M. Nos.12753/16 & 16063/2016 in W.P.(C) No.7934/2016, C.M. Nos.12673/2016 & 20304/2016 in W.P.(C) No.8867/2015, C.M.No.12674/2016 in W.P.(C) No.8382/2015, C.M.No.12754/2016 in W.P.(C)No.9164/2015, C.M.No.13616/2016 in W.P.(C) No.7887/2015, C.M.No.12752/2016 in W.P.(C) No.8190/2015, C.M.No.13619/2016 in W.P.(C) No.348/2016 and Crl.M.A.No.4864/2016 in W.P.(Crl.) No.2099/2015 are dismissed.
308. No order as to costs.
CHIEF JUSTICE JAYANT NATH, J. AUGUST 04, 2016 kks/pmc/anb