2016 Supreme(Del) 2806

IN THE HIGH COURT OF DELHI AT NEW DELHI
JAYANT NATH & G. ROHINI, JJ.
GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI – Petitioner
Versus
UNION OF INDIA – Respondent
W.P. (C) Nos. 5888, 7887, 7934, 8190, 8382, 8867, 9164 of 2015 & W.P. (C) No. 348 of 2016 & C.M. Nos. 10642, 11083, 13153, 17862, 19859, 23564, 20896, 23565, 25388, 25389 of 2015 & C.M. Nos. 1425, 5182, 5183, 12673, 12674, 12676, 12752, 12753, 12754, 13616, 13619, 15903, 16063, 16088, 20304 of 2016 & W.P. (CRL) No. 2099 of 2015 & CRL M.A. Nos. 13920 of 2015 & CRL M.A. Nos. 4864 of 2016
Decided On : 04-08-2016

Headnote:

Commission of Inquiry Act, 1952 - Section 3 - Commission of Inquiry - Appointment by Legislative Assembly - Irregularities in the functioning of Delhi and District Cricket Association- Legality of - Appropriate Government to appoint a Commission of Inquiry under Section 3 shall be the Lt. Governor of NCT of Delhi only - Appointment of the Commission of Inquiry merely on the basis of the Cabinet decision is without jurisdiction - Impugned notification under which the Commission of Inquiry has been appointed is illegal.

Commission of Inquiry Act, 1952 - Section 3 - General Clauses Act, 1897 - Section 3(58) - Fitness Certificates in the Transport Department - Investigations and developments - Appointing Commission of Inquiry - Legality of - Lt. Governor acting through the Central Government alone is competent to appoint a Commission of Inquiry in relation to administration of Delhi - Decision of the Council of Ministers to appoint the Commission of Inquiry was not communicated at all to the Lt. Governor - Procedure followed by the GNCTD in issuing the impugned notification is ex facie illegal being in violation of the constitutional scheme - Impugned Notification shall stand set aside.

Constitution of India, 1950 - Article 131 - Union - State - Executive power - Dispute - Scope of - Every dispute between the State and the Union of India, in discharge of their respective executive powers cannot attract Article 131 of the Constitution - Article 131 of the Constitution is attracted only when a dispute arises between or amongst the States and the Union in the context of the constitutional relationship that exists between them and the legal rights flowing there from.

Constitution of India, 1950 - Article 239AA (3)(4) - Electricity Act, 2003 - Section 108 - Electricity - Government of NCT - Competency to issue directions - State Government is empowered to issue policy directions with regard to electricity - Executive functions of the same shall be in terms of Clause (4) of Article 239AA - Decision of the Council of Ministers is to be communicated to the Lt. Governor - Impugned decision being contrary to the Constitutional Scheme cannot be sustained and is quashed - Writ petition shall stand allowed.

Constitution of India, 1950 - Article 239AA(4) - Legislative Assembly - NCT of Delhi - Power to make laws - Council of Ministers with the Chief Minister are conferred with certain executive powers - Competence of the Central Government in directing the Anti-Corruption Branch Police Station not to take cognizance of offences against the officials and employees of the Central Government does not involve any dispute of federal nature - Subject matter of the dispute is not covered by the class of disputes which fall within Article 131 - Proceedings shall not remain stayed till the Original Suit filed by the applicant under Article 131 of the Constitution is adjudicated by the Supreme Court.

Constitution of India, 1950 - Article 239AA(4) - Reconsideration of case - Reference to larger bench - Scope of - Necessity to refer the issue to a larger Bench - To enable the Court to refer any case to a Larger Bench for reconsideration, it is necessary to point out that particular provision of law having a bearing over the issue involved was not taken note of - There is an error apparent on its face or that a particular earlier decision was not noticed - Where a Single Judge or a Division Bench does not agree with the decision of a Bench of coordinate jurisdiction, the matter shall be referred to a Larger Bench - None of the circumstances arise - Held, there is no need for reference to a Larger Bench - Applications filed on behalf of GNCTD seeking reference of these petitions to a Larger Bench are dismissed.

Criminal Procedure Code, 1973 - Section 24 - General Clauses Act, 1897 - Sections 3(8), 3(58) and 3(60) - Public Prosecutor - Special Public Prosecutor - Appointment - Jurisdiction of - 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 - 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 - NCT of Delhi is a Union Territory and not a State - So far as NCT of Delhi is concerned, the 'State Government' means the Lt. Governor for the purpose of Section 24(8) of Cr.P.C - Power to appoint a Public Prosecutor is relatable to Entries 1 and 2 of List III - Held, Government of NCT of Delhi has legislative competence under Article 239AA of the Constitution - 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 - Impugned order dated 07.09.2015 passed by the Special Judge-07 in FIR No.21/2012 is set aside.

Government of Union Territories Act, 1963 - Section 44(1) - Constitution of India, 1950 - Article 163(1), 239AA(4) - Special status - Constituting a Legislative Assembly - Exclusive legislative competence - Whether Lt. Governor is bound to act only on the aid and advice tendered to him by the Council of Ministers of the GNCTD - Governor of a State has to act on the aid and advice of the Council of Ministers except some Constitutional provision required to exercise his functions in his discretion - In both the cases the impugned orders were passed in exercise of the powers conferred on the Governor under Article 234 - There is a difference between the position of the Governor of a State and the Lt. Governor of NCTD - Held, 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 NCTD - An order thereon can be issued only where the Lt. Governor does not take a different view - Governor is not bound to act only on the aid and advice of the Council of Ministers.

NCT of Delhi Act, 1991 - Section 41 - Criminal Procedure Code, 1973 - Section 2(s) - Services in union territory - Executive power - Legislative competence - Lies with governor - Whether anti-Corruption Branch shall not take cognizance of offences against officers, employees and functionaries of the Central Government - There are only two Services under the constitutional scheme - One is of the Union and the other is of each State - No separate service cadre of any Union Territory - Services of all Union Territories including NCT of Delhi are services of the Union - Held, services under NCT of Delhi fall beyond the legislative competence of Legislative Assembly of NCT of Delhi - Services is a matter of which the Lt. Governor is required to act in his discretion.

Stamp Act, 1899 - Section 27(2) (3) R/w Delhi Stamp (Prevention of Undervaluation of Instruments) Rules, 2007 - Rule 4 - Stamp duty - Revised - Without concurrence of the Lt. Governor - Held, 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 - Impugned notification is illegal and is quashed.

Constitution of India, 1950 - Article 239AA r/w GNCTD Act, 1991 - Business Rules - Legislative competence - Transaction of Business Rules - Decision of the Council of Ministers - Even to the matters in respect of which power to make laws has been conferred on the Legislative Assembly of NCTD, order can be issued only where the Lt. Governor does not take a different view - Lt. Governor holds no share in DPCL and that GNCTD is the 100% shareholder - Exercise of executive function is traceable to the subject 'electricity' which is a Concurrent List - It is not an exempted matter under Clause (3)(a) of Article 239AA - Legislative Assembly of NCTD is competent to make laws and as a sequel the Government of NCT of Delhi can exercise the executive control - But the decision of the Council of Ministers can be enforceable only after communicating the same to the Lt. Governor - Such procedure was not followed - Impugned appointment is declared as illegal - Writ petition shall stand allowed.