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2017 DIGILAW 2639 (DEL)

Ashwani Kumar v. Government of Nct. of Delhi

2017-07-31

C.HARI SHANKAR, GITA MITTAL

body2017
ORDER : CM No.27211/2017 (exemption) Allowed, subject to just exceptions. The application is allowed. W.P.(C) 6567/2017 & CM No.27210/2017 This writ petition has been filed by the petitioner who on 1st September, 2016 was appointed as the Secretary of the Public Works Department. He is currently holding the post of Principal Secretary, Public Works Department and of the Vigilance Commission, Department of Govt. of NCT of Delhi. 2. In exercise of power under Section 33 of the Government of NCT of Delhi Act, 1991 the Legislative Assembly of the NCT of Delhi has framed the Rules of Procedure and Conduct of Business in the Legislative Assembly of the NCT of Delhi, 1997. 3. It appears that this court is seized of the issue relating to desilting and incidental matters by way of a public interest litigation registered as WP(C)No.1758/2005 Lt. Col. B.B. Sharan (Retd) v. MCD & Anr. wherein orders, dated 4th May, 2017; 26th May, 2017; 30th May, 2017; 5th July, 2017 and 25th July, 2017 have been passed. 4. A perusal of these orders reflects that pursuant to the court order dated 4th May, 2017, a Co-ordination Committee stands constituted by the Lt. Governor, which is chaired by the writ petitioner. The members of this Co-ordination Committee are as follows: (i) Pr. Secretary (PWD), GNCTD - Chairman (ii) Spl. Secy. (UD)-cum-Addl. Dir. (LB) - Member (iii) Engr.-in-Chief (North DMC) - Member (iv) Engr.-in-Chief (South DMC) - Member (v) Engr.-in-Chief (East DMC) - Member (vi) Chief Engineer (C-1), NDMC - Member (vii) Chief Engineer (I&FC) - Member (viii) Director (Works), DDA - Member (ix) Executive Engineer, Delhi Cantt. Board - Member (x) Member (Drainage), DJB - Member (xi) Engr.-in-Chief (PWD) - Member Secretary Thus all authorities concerned with drains are represented in this Committee. Reports have been filed in this court by this Co-ordination Committee regarding the subject matter of the writ petition which includes de-silting of drains and related matters and are under consideration of the writ court. It is undisputed that this writ petition remains pending even as on date. 5. We may note that, even on 25th July, 2017, the GNCTD had appeared in this writ petition and is actively participating in the proceedings. In fact the GNCTD has taken upon itself to inform the Court Commissioners about location of drains to enable the Court Commissioners to choose which part of the drains they would inspect. 5. We may note that, even on 25th July, 2017, the GNCTD had appeared in this writ petition and is actively participating in the proceedings. In fact the GNCTD has taken upon itself to inform the Court Commissioners about location of drains to enable the Court Commissioners to choose which part of the drains they would inspect. Mr. Sidharth Luthra, ld. Senior Counsel for the writ petitioner submits that, it is evident from the above that this court is monitoring and examining in W.P.(C)No.1758/2005 all issues relating to development and progress of the de-silting of drains and related matters. 6. It appears that, while the issues in WP(C)No.1758/2005 are being scrutinized and are pending before this court, a complaint was received by the Speaker of the Legislative Assembly of the GNCTD which was forwarded to the Committee on Petitions which inquired into the matter and called upon the writ petitioner in this case as also the writ petitioner in WP(C)No.1758/2005, to participate in its inquiry. Meetings were held by the Committee on Petitions on 1st June, 2017; 5th June, 2017; 20th June, 2017; 22nd June, 2017 and 29th June, 2017. Several field visits were also taken to ascertain the ground reality and to verify the claims of the several authorities. 7. It is asserted that the Committee of Petitions prepared a report which was tabled in the Legislative Assembly on 30th June, 2017. Based on this report of the Committee on Petitions, a resolution dated 3rd July, 2017 came to be passed, accepting the report. The Legislative Assembly agreed with the recommendations made by the Committee on Petitions and its conclusion that there was misrepresentation of facts before the Committee. This aspect of the matter was referred to the Committee of Privileges. 8. It appears that pursuant to this resolution of the Legislative Assembly, the respondents have issued a impugned notice dated 28th July, 2017 (page 68) calling upon the petitioner to appear before the Committee of Privileges on 31st July, 2017. 9. The writ petitioner has assailed the report of the Committee on Petitions dated 30th June, 2017; the resolution dated 3rd July, 2017; the communication dated 5th July, 2017 and the meeting notice dated 28th July, 2017 by way of the present petition. 9. The writ petitioner has assailed the report of the Committee on Petitions dated 30th June, 2017; the resolution dated 3rd July, 2017; the communication dated 5th July, 2017 and the meeting notice dated 28th July, 2017 by way of the present petition. The writ petitioner has also, inter alia, sought declaration by way of issuance of an appropriate writ, declaring the proviso to Rule 204 of the NCT of Delhi Rules as ultra vires and unconstitutional. 10. In support of the challenge, the writ petitioner has placed Rule 93 and Rule 201(iii)(a)&(b) before us which read as follows (page 49): "93. Conditions of admissibility of Resolutions. In order that a resolution may be admissible, it shall satisfy the following conditions, namely : (1) it shall be clearly and precisely expressed, (2) it shall raise substantially only one definite issue, (3) It shall not contain arguments, inferences, ironical expressions, imputations or defamatory statements : (4) it shall not refer to the conduct or character of persons, except in their official or public capacity. (5) it shall not relate to any matter which is under adjudication by a Court of Law having jurisdiction in any part of India, and (6) it shall not reflect upon the conduct of the President as distinct from the Government of India or of the Lt. Governor as distinct from the Government." "201. Scope of Petitions. Petitions may be presented to the House when it is in session or submitted to the Speaker when not in session on : (i) a Bill which has been published under rule 118 or which has been introduced in the House; (ii) a matter connected with the business pending before the House; and (iii) any matter of general public interest, provided that it is not one. (a) which falls within the cognizance of the court of a law having jurisdiction in any part of India or a Court of Inquiry or a Statutory Tribunal or Authority or a Quasi - Judicial or a Commission; (b) for which remedy is available under the law including rules, regulations, bye-laws made by the Central Government or the Government of the National Capital Territory of Delhi or an authority to whom power to make such rules, regulations etc., is delegated." (Emphasis by us) 11. From a prima facie reading of the said rules, it would appear that the rules themselves preclude any action by the Committee on Petitions with regard to any matter which is the subject matter of adjudication before a court of law. 12. Even as per the report relied upon by the Committee on Petitions, which was placed before the Legislative Assembly of respondent no.1, it is an admitted position that the entire matter relating to de-silting of drains etc. is pending consideration before this court. 13. As noted above, the Co-ordination Committee had been constituted by the Lt. Governor of Delhi pursuant to the order dated 4th May, 2017 of this court, which is seized of the entire issues. The matter is being monitored by the court. 14. The orders of the court placed before us would show that the Co-ordination Committee is placing its minutes and reporting to the court in W.P.(C)No.1758/2005. On 30th May, 2017 (page 271), this court has expressed an opinion that the "Co-ordination Committee should be a permanent mechanism". 15. In this background, it appears that the matter regarding desilting of drains and all actions relating thereto is a matter under adjudication before this court in W.P.(C)No.1758/2005 and would be covered within the meaning of a matter under adjudication by a court of law in sub-rule (v) of Rule 93 of the Rules of Procedure and Conduct of Business of the Legislative Assembly of the NCT of Delhi. 16. It is noteworthy that Rule 201 of these rules also prescribes the scope of petitions. Sub-rule (iii)(a) and (b), as extracted above, clearly preclude submission of any petition which falls inter alia within the cognizance of court of law as well as one for which remedy is available under the law. The complaint considered by the Committee of Petitions appears to be so barred as well. 17. Mr. Sanjay Jain, ld. Senior Counsel for respondent no.5 has also challenged the authority of the respondent no.1 to issue the impugned notice dated 28th July, 2017 on the ground of legislative competence. In this regard, reliance is placed on the pronouncement dated 4th August, 2016 passed in W.P.(C)No.5888/2015, Govt. of NCT of Delhi v. Union of India and connected matters. It is not necessary for us to go into this matter at this stage. 18. Mr. Ramesh Singh, ld. In this regard, reliance is placed on the pronouncement dated 4th August, 2016 passed in W.P.(C)No.5888/2015, Govt. of NCT of Delhi v. Union of India and connected matters. It is not necessary for us to go into this matter at this stage. 18. Mr. Ramesh Singh, ld. counsel appearing on behalf of respondent nos.1 to 3, submits that the action of the respondents is strictly in accordance with law and that the petitioner having participated in the proceedings of the Committee on Petitions is precluded from raising the challenge contained in the present writ petition. 19. It is submitted that the Committee on Petitions has acted purely in public interest having regard to the seriousness and magnitude of the problem regarding de-silting of drains. 20. We have been informed by Mr. Ramesh Singh, ld. counsel for respondent nos.1 to 3 that, as a matter of fact, the petitioner has today appeared before the Committee on Privileges and sought time to file reply which has been granted to him. He submits that the next date of proceedings stands fixed. 21. Be that as it may, it cannot be denied that the above issues raised by both sides required to be considered. The question with regard to the legality and maintainability of the action by the Legislative Assembly is of paramount importance, given the overlap of the exercise of jurisdiction over matters which are admittedly pending consideration before this court. 22. The fact that the petitioner has appeared before the Committee on Privileges would not, in any manner, detract from the importance of the issues raised, especially the legal issues as well as objection as to jurisdiction, having regard to the clear rule position as has been delineated before this court. 23. In view thereof, issue notice to show cause as to why rule nisi be not issued and notice in the application. 24. Mr. Ramesh Singh, Standing Counsel accepts notice on behalf of respondent nos.1 to 3. Mr. Vinod Diwakar, CGSC accepts notice on behalf of respondent no.4. Mr. Akshay Makhija, CGSC accepts notice on behalf of respondent no.5. 25. Counter affidavit be filed by the respondents within four weeks from today. Rejoinder thereto, if any, be filed before the next date of hearing. List on 8th November, 2017. 26. Mr. Vinod Diwakar, CGSC accepts notice on behalf of respondent no.4. Mr. Akshay Makhija, CGSC accepts notice on behalf of respondent no.5. 25. Counter affidavit be filed by the respondents within four weeks from today. Rejoinder thereto, if any, be filed before the next date of hearing. List on 8th November, 2017. 26. Till the next date of hearing, there shall be a stay of the effect and operation of the impugned notice dated 28th July, 2017 and further proceedings pursuant to the impugned notice.