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#Turfwars: Will Delhi see any respite from the AAP-ki JUNG?

Smrithi Suresh

Once upon a time there was a notification. It spelt out a demarcation of powers between two giants in the National Capital. And then all hell broke loose. Anyone who is abreast with the legal and political developments that have occurred in Delhi over the past 3-4 months, would now be aware of this notification issued by the Ministry of Home Affairs.

It is on the basis of this notification that a blitzkrieg of petitions have been unleashed by the Delhi Govt & Union Govt in the Delhi High Court and even in the Supreme Court. To understand the background of all these petitions, it is imperative to delve into what exactly has been laid down by this ‘controversial’ notification.

Background

The relevant portion of the Notification issued on May 21st reads,

“…In accordance with the provisions contained in article 239 and sub-clause (a) of clause (3) of 239AA, the President hereby directs that –

  • 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’, ‘Police’, ‘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 may, in his discretion, obtain the views of the Chief Minister of the National Capital Territory of Delhi in regard to the matter of ‘Services’ wherever he deems it appropriate.”

It also goes on to say that the Anti-Corruption Branch Police Station shall not take any cognizance of offences against officers, employees and functionaries of the Central Government.

These provisions have riled the Delhi Government to an extent that the AAP has openly claimed as to how the Centre was looking to wrest control in Delhi through the Lt-Governor. Amidst the caustic exchange of barbs between both sides, came a judgment of the Delhi High Court which ruled that the ‘Anti-Corruption Bureau could act against Central government employees’ and gave a fillip to the Delhi Government’s stance.

However, the issue did not end there as the Centre challenged the Single Bench order before the Apex Court while AAP fired its own salvo by challenging the notification in the Delhi High Court. The hearings in these petitions are at various stages and make for an interesting read; more so because of the constitutional interpretation attached to the issues.

All is not well.
All is not well.

I (GNCT of Delhi Vs Union of India)

Question involved- Whether or not the Lt-Governor should be vested (vide the MHA notification) with absolute powers in appointing bureaucrats and making other important appointments in the Capital. The AAP govt had challenged Najeeb Jung’s appointees Shakuntala Gaimlin as Chief Secretary and MK Meena as ACB Chief, in-spite of stiff resistance from the party over both the appointments.

Counsels- Indira Jaising, Dayan Krishnan for Delhi Govt; ASG Sanjay Jain for the Union.

Crux of arguments- Jaising had argued that the May 21 notification was ‘ultra-vires’ and that Services as listed under Entry 41 of the State List of Schedule VII of the Constitution were within the ‘exclusive legislative competence of the State.’ Jain had refuted this averment by stating that  Delhi remained a Union Territory, and that since the Union was the cadre controlling authority, administrative responsibilities rested with the Union.

In another hearing, Krishnan had submitted before the Court that Article 239AA of the Constitution had ‘crystallized the law’ so far as the constitutional mandate of Delhi’s CM was concerned.

Status- The matter which was partly-heard, has been adjourned to September 9 when Krishnan is expected to resume his arguments.

II Reliance Industries Ltd & Anr. Vs Govt of NCT of Delhi & Ors.; Union of India Vs Govt of NCT of Delhi & Ors.

Issue- Arvind Kejriwal, during his first stint as Chief Minister in 2014, had directed the ACB to file FIRs against Reliance India Ltd, (then) Union Ministers Veerappa Moily and Murli Deora alleging corruption and collusion among these individuals, over price hike of natural gas from KG Basin. The said writ petition was moved by RIL seeking quashing of the FIR filed by the Kejriwal govt.

Last year, the Delhi HC had granted an interim order operating in favour of Reliance when it had held that no coercive action ought to be taken against the people named in the FIR.

Question Involved- Whether or not the ACB had express powers to investigate Central Govt officers. RIL, in its petition for quashing, had also stated that since ‘gas’ as a subject, fell under the Union List, a state’s investigative machinery ought not to probe such cases.

Counsels- Abhishek Manu Singhvi, Harish Salve and a galaxy of senior counsels  have appeared for Reliance Industries. Senior Counsels Vikas Singh, and Rajeev Dhawan have appeared from time to time for the Delhi Govt.

Status- A Single Bench hearing all the matters related to apportionment of powers between the Centre and the Lt-Governor, had earlier said that it wanted to finish hearing arguments in the GNCT challenge to May’s notification.

Therefore, Justice VP Vaish has now adjourned the hearing in these matters to be held on October 14, by which time the Court is expected to wrap up hearing of the Delhi Govt’s petition.

III (Gopal Gupta Vs GNCT of Delhi & Ors; Naresh Kumar Vs GNCT of Delhi & Ors.

Issue/Question involved- The Delhi Govt had on August 4, come up with a notification that effectively tripled the rate of agricultural land in the Capital. Interestingly, this notification had run into hot waters much before it reached the Courts, when LG Najeeb Jung directed the Govt to maintain ‘status-quo’ until a legal examination of the issue. He had proceeded to stay the notification, which was later set aside by a resolution passed by the Govt. Confused? There’s more.

Crux of arguments- While Gupta’s petition stressed upon the fact that the said notification would have an adverse impact on the property market as also the bigger issue of it being passed without the L-G’s approval, Naresh Kumar had stated in his petition that the enhancement of rates was highly ‘discriminatory’ in nature.

Counsels- Senior counsel Dayan Krishnan submitted that as per the Ministry of Home Affairs and Transaction of Business Rules, a notification issued by the name of the Lt-Governor need not be signed by him. Advocate OP Saxena had appeared for Kumar.

Status- Gopal Gupta’s petition was dismissed by the Division Bench headed by Chief Justice G Rohini holding that ‘no case was made out’. In the Naresh Kumar matter the Bench has directed the Delhi Govt to file its reply before September 23 on whether such notification could be issued, without obtaining prior approval of the Lt-Governor.

In what could be termed as a minor reprieve for the Govt, the Bench had refused to stay the August 4 notification.

IV (Rajendra Prashad Vs Govt of NCT of Delhi; MA Usmani Vs Union of India & Ors)

Question involved/Issue- A challenge to the Delhi Govt’s decision to set up an Inquiry Commission for probing into the CNG fitness scam. Several key officials from the previous Sheila Dikshit government are pitted to be under the dock if the Commission initiates its probe.

While Prashad is a former employee of the Transport Department, Usmani is a DANICS cadre officer who was arrested in connection with the scam in 2012. The FIR against Usmani was moved by the ACB. Both the petitions had stated that formation of the Commission was not approved by the Lt-Governor. They also highlighted the fact that Jung had previously rejected the proposal for constituting this Commission.

Crux of arguments- Prashad’s lawyer had argued before the Bench that the Commission was formed under ‘arbitrary’ orders by the the CM’s office which had acted ‘way beyond its competence.’ He had also submitted that under the Inquiry Act of 1952, Lt-Governor alone was the competent authority to take a decision in this regard.

Counsels- Dayan Krishnan appearing for the Delhi Govt had informed the Court that the said issue was squarely a State subject, which effectively required no approval from the LG’s office.

Senior Counsel Siddharth Luthra had appeared for Usmani and sought an interim stay on the Commission’s appointment, which was not granted by the Court.

Status- The Bench issued notice and sought a response from the Delhi Government before fixing the next date of hearing on September 23.

V (Govt of NCT of Delhi Vs Mukesh Kumar Meena & Anr.)

Question involved/Issue- Delhi Govt had initiated contempt proceedings against ACB Chief MK Meena for expressly flouting orders issued by the Delhi High Court in the GNCT Vs UOI matter.

Counsels- Dayan Krishnan for Delhi Govt; ASG Sanjay Jain for Union

Crux of arguments- Krishnan had then argued as to how Meena had not co-operated in the smooth functioning of the ACB and had performed certain acts, unbecoming of his post. The Single Bench had issued show-cause notice to Meena and directed him to appear in Court in order to explain why should contempt proceedings not be initiated against him

Status- The matter will now be heard on October 8, 2015.

Centre Vs State: The road ahead

The Delhi High Court has seen a flurry of petitions since May, highlighting the bitter relationship between the Centre and the State Govt. In fact, the High Court has almost become a court for resolving acerbic political battles. However, if one has to go by the categorical submissions made by both sides during the proceedings, it wouldn’t be far fetched to say that the fight is far from over.

Recently, the Delhi Government also increased the strength of its legal battalion in the Delhi High Court which only goes on to say that they are not willing to take their foot off the pedal. So it would be quite an entertaining next few months in the High Court, when it becomes clear as to who blinks first.

Image taken from here 

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