TC 2209 (Petitioner)

TEAM CODE: VIM/SLC/2209
S,S, JAIN SUBODH LAW COLLEGE
INTRA COLLEGE VIRTUAL MOOT COURT COMPETITION 2022
IN THE HON’BLE HIGH COURT OF HAITIEN CITY
WRIT PETITION FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF

ATGAMA REPUBLIC
IN THE MATTER OF: -
GABRIEL BORHIC …………………….…………………...……………….. PETITIONER
V.
CARALINE BLINKEN ………….…………………………...………. RESPONDENT No. 1
CHIEF SECRETARY OF HAITIEN CITY …………………..….… RESPONDENT No. 2
DIRECTOR GENERAL, NBI ……………………………..………… RESPONDENT No. 3
MOST RESPECTFULLY SUBMITTED BEFORE THE HON’BLE HIGH COURT OF

HAITIEN CITY
MEMORIAL ON BEHALF OF PETITIONER
DRAWN AND FILED BY THE COUNSELS FOR THE PETITIONER

2
TABLE OF CONTENTS
TABLE OF CONTENTS ……………………………………………………………………... 2
INDEX OF AUTHORITIES ……………………………………………………………….. 3-4
LIST OF ABBREVIATIONS ……………………………………………………………… 5-6
STATEMENT OF JURISDICTION ………………………………………………………..… 7
STATEMENT OF FACTS ……………………………………….………………………….. 8-9
ISSUES RAISED …………………….……………………………………………...……….. 10
SUMMARY OF ARGUMENTS …………………………………………….…………… 11-12
ARGUMENTS ADVANCED …………………………………………...………………. 13-28
I. Whether the Lt. Governor can suo moto refer the matter for NBI enquiry?
II. Whether the action of the Lt. Governor in intruding with the functioning of a duly
elected democratic government can be justified?
III. When there is a failure to of Constitutional Machinery in the Union Territory, the Lt.
Governor’s action of not referring and recommending to the President of the Atgama
Republic for the dissolution of the legislative assembly is constitutionally valid?
IV. Whether the Lt. Governor in suspending the democratically elected Chief Minister,
without dissolving the legislative assembly is constitutionally valid?
V. Whether the President of Atgama Republic can suo moto interfere with the affairs of
the Union Territory and take necessary action?
PRAYER FOR RELIEF .…………………………………………………………………….. 29
WRITTEN SUBMISSION ON THE BEHALF OF PETITIONER

3
INDEX OF AUTHORITIES
❖ CASES REFERRED
❖ Supreme Court Cases

1. GNCT Delhi v. Union of India (2018) 8 SCC 501.
2. GNCT Delhi v. Union of India (2019) SCC OnLine SC 193.
3. Kesavanand Bharti v. State of Kerela, AIR 1973 SC 1461.
4. M. Karunanidhi v. Union of India, 1979 AIR 898.
5. Nabam Rebia and Bamang Felix v. Deputy Speaker and Ors. (2017) 13 SCC 332.
6. NDMC v. State of Punjab, (1997) 7 SCC 339.
7. S.R. Bommai v. Union of India 1994 (3) SCC 1.
8. T.M. Kanniyan vs Income-Tax Officer, Pondicherry 1968 AIR 637.
❖ High Court Cases

1. Lalu Prasad @ Lalu Prasad Yadav vs The State of Jharkhand Through CBI, 2017
Latest Caselaw 417 SC. (Jharkhand High Court).
2. N.T. Ramarao v. His Excellency the Governor of Andhra Pradesh, 1995 (3) ALT
929. (Andhra Pradesh High Court).
❖ STATUTES REFERRED
1. The Code of Criminal Procedure, 1973.
2. The Constitution of India, 1949.
3. The Government of National Capital Territory Act, 1991.
4. The Government of Union Territories Act, 1963.
5. The Indian Penal Code, 1860.
6. The Lokpal and Lokayuktas Act, 2013.
7. The National Investigating Agency Act, 2008.
8. The Police Act, 1861.

4
9. The Prevention of Corruption Act, 1947.

10. The Universal Declaration of Human Rights, 1948.
❖ BOOKS REFERRED
1. C.K. Takwani, CiviL Procedure Code with Limitation Act, 1963, Eastern Book
Company, Lucknow, Eighth ed. (2018).
2. J.N. Pandey, Constitution of India, Central Law Agency, Allahabad, Fifty Fifth ed.
(2018).
3. Prof. M.P. Jain, Indian Constitutional Law, Lexis Nexis, Butterworths Wadhwa
Publication, Nagpur, Sixth ed. (2011).
4. Ratanlal and Dhirajlal, The Indian Penal Code, Lexis Nexis, Gurgaon, Thirty Forth ed.
(2015).
5. V.N. Shukla, Constitution of India, Eastern Book Company, Lucknow, Eleventh ed.
(2008).
❖ WEBSITES REFERRED
1. Advocatekhoj.com
2. Casemine.com
3. Constiutionofindia.net
4. Egazatte.nic.in
5. Indiankanoon.org
6. Latestlaws.com
7. Lawctopus.com
8. Legalservicesindia.com
9. Legislative.gov.in
10. Lexisnexis.com
11. Manupatra.in
12. Scconline.com

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LIST OF ABBREVIATION
ABBREVIATION EXPANSIONS
AIR All India Reporter
ALT Alternative Law Journal
Anr. Another
Art. Article
& And
CM Chief Minister
Const. Constitution
GNCT Government of National Capital Territory
HC High Court
Hon’ble Honourable
IPC Indian Penal Code
LG Lieutenant Governor
Lt. Lieutenant
NCT National Capital Territory

6
NDMC New Delhi Municipal Corporation
NIA National Investigating Agency
No. Number
Ors. Others
SC Supreme Court
SCC Supreme Court Cases
Sec. Section
UOI Union of India
v. Versus
W.P. Writ Petition

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STATEMENT OF JURISDICTION
The Hon’ble High Court of Haitien City has jurisdiction to hear the Writ Petition under Article
2261 of the Constitution of Atgama Republic, 1949.
The Petitioner most humbly submits before the Jurisdiction of the present court and accepts that
it has power and authority to preside over the present case.
1
226. Power of High Courts to issue certain writs
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation
to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government,
within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part
III and for any other purpose
(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person
may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause
of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government
or authority or the residence of such person is not within those territories
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is
made on, or in any proceedings relating to, a petition under clause ( 1 ), without
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order;
and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such
order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel
of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it
is received or from the date on which the copy of such application is so furnished, whichever is later, or where the
High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High
Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as
the case may be, the expiry of the aid next day, stand vacated
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the
Supreme court by clause ( 2 ) of Article 32

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STATEMENT OF FACTS
• Mr. Gabriel Borhic is the Chief Minister of Haitien City, a Union Territory in the Atgama
Republic.
• It is alleged that Mr. Borhic has involved himself in a conspiracy related to misappropriation
of state funds and as the result, a large amount of Rs. 40 thousand crores have been siphoned
off and misappropriated by several persons by submitting forged vouchers, fake certificates,
and statements.
• Mrs. Caraline Blinken, Lieutenant Governor of Haitien City issued order for an NBI enquiry
without having any initial report from the local police and authorities.
• Political parties of the state started pressurizing Mr. Gabriel Borhic, for his resignation without
even having him convicted as guilty.
• Media got involved in the case insisting for the resignation of the Chief Minister spreading
propaganda and along with social media hue and cry, several articles and editorials were
published in the criticism of the Chief Minister for not stepping down. Mr. Borhic was on a
public trial and was assumed guilty without even giving him any chance to prove his
innocence.
• Opposition parties were up in arms which created wide havoc throughout the Union Territory
pressurising everyone in the ruling government to act immediately. Due to this distress normal
life of people got adversely affected.
• Mrs. Blinken, without having any proof of involvement of Mr. Borhic, issued a Suspension
letter to Chief Minister.
• In the suspension letter, it is addressed that he is discharged from his duties as an acting Chief
Minister. Lt. Governor appointed the senior most Cabinet Minister Mr. Antony Morris as the
new Chief Minister of the Union Territory and directed the current ruling party to elect a
candidate to be appointed as the Chief Minister.
• Lt. Governor administered the oath of office and secrecy to Mr. Antony Morris.
• Now, Mr. Borhic, by the action of the Lt. Governor approached the High Court of Haitien
City challenging orders issued by Lt. Governor and impleaded the LG, Chief Secretary and
Director General of NBI.

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• The petitioner sought an interim relief allowing him to discharge function as the Chief
Minister.
• The Hon’ble High Court admitted the Petition.
• The respondent filed the counter affidavit challenging the maintainability of the writ petition
and that the LG was acting in her Constitutional capacity to maintain the peace in the Union
Territory.

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ISSUES RAISED
a. Whether the Lt. Governor can suo moto refer the matter for NBI enquiry?
b. Whether the action of the Lt. Governor in intruding with the functioning of a duly
c. When there is a failure to of Constitutional Machinery in the Union Territory, the Lt.
d. Whether the Lt. Governor in suspending the democratically elected Chief Minister,
e. Whether the President of Atgama Republic can suo moto interfere with the affairs of

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SUMMARY OF ARGUMENTS
It is humbly submitted to the Hon’ble court that the Lt. Governor cannot suo moto refer the
matter for NBI enquiry without the proper procedure of first a police investigation and then
if then any need of a separate enquiry arises and referring the case to NBI.
It is humbly submitted to the Hon’ble court that the actions taken by the Lt. Governor of
suspending and interfering in the function of the duly democratically elected esteemed
Chief Minister is unjustifiable due to her using her power absolutely and arbitrarily given
to her in sec 41 of the GNCT Delhi Act, 1991.
It is humbly submitted to the Hon’ble court that when there is a failure to the constitutional
machinery in the UT, the Lt. Governor’s action of not referring and recommending to the
President for the dissolution of the Legislative Assembly is unconstitutional as the Article
239AA sets a mandate upon the Lieutenant Governor to act on the aid and advice of the
Council of Ministers except when he decides to refer the matter to the President for final
decision.

12
It is humbly submitted to the Hon’ble court that the suspension of democratically elected
chief minister without dissolving legislative assembly done by Lt. Governor is invalid.
Under Article 174 (2) (b) in The Constitution, the governor has the power to dissolve the
Legislative Assembly in anticipation that a successive legislative assembly will reconvene
later with possibly different members, A State Legislative Assembly may be dissolved in
a state of emergency, by the Governor on request of the Chief Minister, or if a motion of
no confidence is passed against the ruling majority party or coalition.
It is humbly submitted to the Hon’ble court that the President of Atgama Republic can
suo moto interfere with the affairs of the Union Territory and take necessary action due
to the powers given him under Article 239 to 242 of the Atgama Republic Constitution
that deals with the administration of Union Territory and states that every union territory
is administered by the President acting through an administrator appointed by him.

13
ADVANCED ARGUMENTS
The counsel humbly submits to the Hon’ble Court that the Lt. Governor cannot suo moto refer the
matter for NBI enquiry without giving any notification about the offence petitioner is suspected to
be part of.
Section 2 (1) of the Delhi Special Police Establishment Act 1946, states that “Notwithstanding
anything in the Police Act, 1861 (5 of 1861), the Central Government may constitute a special
police force to be called the Delhi Special Police Establishment for the investigation [in any Union
territory] of offences notified under section 3”.
But the section 3 of the DSPE Act (1946) states that “the Central Government may, by notification
in the Official Gazette, specify the offences or classes of offences which are to be investigated by
the Delhi Special Police Establishment”. And no such notification was issued by the Central
Government in the Official Gazette about the misappropriation of the state funds be included in
the offences or classes of offences which are to be investigated by the special police.
The National Investigation Agency (NIA), which is governed by The NIA Act, 2008, has
jurisdiction across the country. But the CBI is governed by The Delhi Special Police Establishment
(DSPE) Act, 1946, and must mandatorily obtain the consent of the state government concerned
before beginning to investigate a crime in a state.
Section 62 of The DSPE Act says: “Nothing contained in section 53 shall be deemed to enable any
member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area
in a State, not being a Union territory or railway area, without the consent of the Government of
that State.”
The Lieutenant Governor exercising his power to refer the case to NBI instead of the original
procedure of first a police investigation and then if then any need of a separate enquiry arises and
2
Consent of State Government to exercise of powers and jurisdiction
3
Extension of powers and jurisdiction of special police establishment to other areas

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refer the case to NBI, is the clear misuse of his discretionary powers given to him under sec. 414
of the Government of NCT of Delhi Act, 1991.
Henceforth, it is humbly submitted to the Hon’ble court that the Lt. Governor cannot suo moto
refer the matter for NBI enquiry without the proper procedure of first a police investigation and
then if then any need of a separate enquiry arises and referring the case to NBI. This is a clear
exercise and misuse of the discretionary powers given to the Lt. Governor if the Haitien City of
Atgama Republic.
4
41. Matters in which Lieutenant Governor to act in his discretion. - (1) The Lieutenant Governor shall act in his
discretion in a matter--
(i) which falls outside the purview of the powers conferred on the Legislative Assembly but in respect of which
powers or functions are entrusted or delegated to him by the President; or
(ii) in which he is required by or under any law to act in his discretion or to exercise any judicial or quasi- judicial
functions.
(2) If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor
is by or under any law required to act in his discretion, the decision of the Lieutenant Governor thereon shall be
final.
(3) If any question arises as to whether any matter is or is not a matter as respects which the Lieutenant Governor
is required by any law to exercise any judicial or quasi- judicial functions, the decision of the Lieutenant Governor
thereon shall be final.

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The council humbly submits before the Hon’ble High Court that the present appeal which is filed
by the former Chief Minister of Haitien City deals with the Lt. Governor intruding with the
functioning of a duly democratically elected government.
The primary function of the governor is to preserve, protect and defend the constitution and the
law as incorporated in their oath of office under Article 159 5 of the Indian constitution in the
administration of the State affairs, and the LG failed to preserve, protect or to defend the
constitution by herself using her powers out of her constitutional capacity.
In the matter of S.R. Bommai v. Union of India6, following the Sarkaria Commission's
recommendations, the Hon’ble Supreme Court underlined that the breakdown of constitutional
machinery implied a virtual impossibility, and not a mere difficulty, in carrying out governance in
a state.
Lt. Governor suspending CM is her arbitrary exercising of the sec. 417 of the Government of NCT
of Delhi Act, 1991 and the discretion which he summons through the aforementioned section to
decide the matters with respect to his decretory powers is vague and lack any limits in it. LG can
use his powers in his personal interest any time without having to answer any of the questions
asked by the Legislative Assembly and like the case currently concerned, can also suspend any
government official to his pleasure without giving any chance to the petitioner and also without
being the charges proven or any without any report submitted by the authorities proving the
petitioner guilty of the offence he has been charged of.
Section 19 of the Prevention of Corruption (Amended) Act, 2018 reads as follows:
5
159. Oath or affirmation by Governor Every Governor and every person discharging the functions of the Governor
shall, before entering upon his office, make and subscribe in the presence of the chief Justice of the High Court
exercising jurisdiction in relation to the State, or, in his absence, the senior most Judge of that court available, an
oath or affirmation in the following form, that is to say swear in the name of God I, A B, do that I solemnly affirm will
faithfully execute the office of Governor (or discharge the functions of the Governor) of (name of the State) and will
to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to
the service and well-being of the people of (name of the State).
6
1994 (3) SCC 1.
7
Supra note 4 at p.no. 14

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(1) No court shall take cognizance of an offence punishable under sections 78,119,1310 and 1511
(section 10 now excluded) alleged to have been committed by a public servant except with the
previous sanction, save as otherwise provided in the Lokpal and Lokayuktas Act, 2013.
(a) In the case of a person who is employed, or as the case may be, was at the time of commission
of the alleged offence employed in connection with the affairs of the Union and is not removable
from his office save by or with the sanction of the Central Government, of that Government;
(b) In the case of a person who is employed, or as the case may be, was at the time of commission
of the alleged offence employed in connection with the affairs of a State and is not removable from
his office save by or with the sanction of the State Government, of that Government.
Interference of the Lt. Governor cannot be justified as this was not the case failure of constitutional
machinery as in the case of S.R. Bommai v. Union of India12, Hon’ble Supreme Court classified
the instances of failure of constitutional machinery into three heads:
i. Political crisis.
ii. Internal subversion.
iii. Physical breakdown.
The case concerned contained none of them. Thus, Lt. Governor cannot interfere into a duly
democratically elected government without having any state of emergency or without any situation
of failure in the constitutional machinery of the Legislative Assembly.
8
7. Any public servant who, — (a) obtains or accepts or attempts to obtain from any person, an undue advantage,
with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause
forbearance to perform such duty either by himself or by another public servant; or
(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or
dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public
servant; or
(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear
performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person,
shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to
seven years and shall also be liable to fine.
9
11. Public servant obtaining valuable thing, without consideration from person concerned in proceeding or business
transacted by such public servant.
10
13. Criminal misconduct by a public servant.
11
15. Punishment for attempt.
12
Supra note 6. at p.no. 15.

17
Case: N.T. Ramarao v. His Excellency the Governor of Andhra Pradesh13
Hon’ble High Court held that “"We declare the law of this branch of our Constitution to be that
the President and Governor, Custodians of all executive and other powers under various Articles
shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in
accordance with the advice of their Ministers save in a few well-known exceptional situations.
Without being dogmatic or exhaustive, these situations relate to (a) the choice of Prime Minister
(Chief Minister), restricted though this choice is by the paramount consideration that he should
command a majority in the House; (b) the dismissal of a Government which has lost its majority
in tine House but refuses to quit office; (c) the dissolution of the House where an appeal to the
country is necessitous, although in this area the Head of State should avoid getting involved in
politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the
responsibility for the step. We do not examine in detail the constitutional proprieties in these
predicaments except to utter the caution that even here the action must be compelled by the period
to democracy and the appeal to the House or to the country must become blatantly obligatory”.
The chief minister is duly elected by the people of the Union Territory and cannot be suspended
on the mere charge which is in fact not proven nor any report of the proof of the charge has been
submitted by the NBI.
Case: GNCT Delhi v. Union of India (2019)14
Hon’ble Supreme Court held that “In accordance with the provisions contained in Article 239 and
sub-clause (a) of clause (3) of Article 239AA, the President hereby directs that –
i) 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”.15
The charge held up against the petitioner does not come under any of the matters with respect to
the ‘Public Order’, ‘Police’, ‘Land’ and ‘Services’. The charges are of misappropriation of the
money which also, ipso facto, is not proven.
13
1995 (3) ALT 929.
14
(2019) SCC OnLine SC 193.
15
GNCT Delhi v. Union of India (2019), SCC OnLine SC 193.

18
The proviso of Article 239AA (4)16 of the Constitution also explains that the interference of the
Lieutenant Governor is not justified in the case of “difference in the opinion between the LG and
the elected government, shall be approached to the President.
The charge framed against the petitioner is not yet proven in the Hon’ble Court and the petitioner
is constantly facing the burden of media trial, has been forestalled and has degraded his daily life
on the personal grounds ever since the charge has been framed. This ipso facto is an infringement
to the Article 11 of the Universal Declaration of Human Rights17 which states “Everyone charged
with penal offence has a right to be presumed innocent until proven guilty according to law in a
public trial at which he had all the guarantees necessary for his defences”. And is the prime
example of the irreconcilable of the doctrine of ei incumbit probatio, qui dicit, non qui negat.
Henceforth, the actions taken by the Lt. Governor of suspending and interfering in the function of
the duly democratically elected esteemed Chief Minister is completely shallow and unjustifiable
to its core.
16
(4) There shall be a Council of Ministers consisting of not more than ten per cent. of the total number of members
in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the
exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make
laws, except in so far as he is, by or under any law, required to act in his discretion:
Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter,
the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon
by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the
matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to
give such direction in the matter as he deems necessary.
17
Adopted by the UN General Assembly in Paris on 10 December 1948, during its 183th plenary meeting.

19
Republic for the dissolution of the Legislative Assembly is constitutionally valid?
In the light of the ruling of the nine-Judge Bench in NDMC v. State of Punjab18, it is clear as
noonday that by no stretch of imagination, NCT of Delhi can be accorded the status of a State
under our http://www.judis.nic.in present constitutional scheme. The status of NCT of Delhi is sui
generis, a class apart, and the status of the Lieutenant Governor of Delhi is not that of a Governor
of a State, rather he remains an Administrator, in a limited sense, working with the designation of
Lieutenant Governor. With the insertion of Article 239-AA19 by virtue of the Sixty-ninth
Amendment, Parliament envisaged a representative form of Government for NCT of Delhi. The
said provision intends to provide for the Capital a directly elected Legislative Assembly which
shall have legislative powers over matters falling within the State List and the Concurrent List,
barring those excepted, and a mandate upon the Lieutenant Governor to act on the aid and advice
of the Council of Ministers except when he decides to refer the matter to the President for final
decision.
Case: Govt. of NCT Of Delhi vs Union of India (2019)20
This principle of collective responsibility is of immense significance in the context of “aid and
advice”. If a well-deliberated legitimate decision of the Council of Ministers is not given effect to
due to an attitude to differ on the part of the Lieutenant Governor, then the concept of collective
responsibility would stand negated. The meaning of “aid and advise” employed in Article 239 AA
(4) has to be construed to mean that the Lieutenant Governor of NCT of Delhi is bound by the aid
and advice of the Council of Ministers and this position holds true so long as the Lieutenant
Governor does not exercise his power under the proviso to clause (4) of Article 239-AA. The
Lieutenant Governor has not been entrusted with any independent decision-making power. He has
to either act on the “aid and advice” of Council of Ministers or he is bound to implement the
decision taken by the President on a reference being made by him.
18
(1997) 7 SCC 339.
19
Special provisions with respect to Delhi.
20
(2019) SCC OnLine SC 193

20
The words “any matter” employed in the proviso to clause (4) of Article 239-AA cannot be inferred
to mean “every matter”. The power of the Lieutenant Governor under the said proviso represents
the exception and not the general rule which has to be exercised in exceptional circumstances by
the Lieutenant Governor keeping in mind the standards of constitutional trust and morality, the
principle of collaborative federalism and constitutional balance, the concept of constitutional
governance and objectivity and the nurtured and cultivated idea of respect for a representative
Government. The Lieutenant Governor should not act in a mechanical manner without due
application of mind so as to refer every decision of the Council of Ministers to the President.
The council also humbly argues that Chief Minister is a public servant.
It was the Supreme Court of India, which, in the case of M. Karunanidhi v. Union of India21 had
held that the post of Chief Minister is that of a "public servant". Interpreting the term "public
servant", the apex court had taken recourse to Section 21 (12) (a)22 of the Indian Penal Code, 1860,
which said “every person in the service or pay of the government or remunerated by fees or
commission for the performance of any public duty by the government” is a public servant.
The Code of Criminal Procedure also defines the public servant similarly;
Under Section 19723 of the Code a 'public servant' who is not removable from his office save with
the sanction of the State Government cannot be, tried for an offence committed by him while
purporting to act in the discharge of his official duty except with the previous sanction of the State
Government.
Prevention of Corruption Act, 1947, Section 6 of the Act states:
21
1979 AIR 898
22
(12) Every person — (a) in the service or pay of the Government or remunerated by fees or commission for the
performance of any public duty by the Government;
23
Prosecution of Judges and public servants.
(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by
or with the sanction of the Government is accused of any offence alleged to have been committed by him while
acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except
with the previous sanction-
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged
offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged
offence employed, in connection with the affairs of a State, of the State Government: 1 Provided that where the
alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued
under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression"
State Government" occurring therein, the expression" Central Government" were substituted.

21
"Previous sanction necessary for prosecution (1) No court shall take cognizance of an offence
punishable under section 16124 or section 16425 or section 16526 of the Indian Penal Code, 1860,
or under sub-section (2) of section 5 of this Act, alleged to have been committed by a public
servant, except with the previous sanction,
(a)in the case of a person who is employed in connection with the affairs of the Union and is not
removable from his office save by or with the sanction of the Central Government, of the Central
Government,
(b)in the case of a person who is employed in connection with the affairs of a State and is not
removable from his office save by or with the sanction of the State Government, of the State
Government,
(c)in the case of any other person, of the authority competent to remove him from his office”.
The appeals will have to be heard afresh by the High Court with the prosecution represented by a
Public Prosecutor appointed under Section 24(1)27 of the Criminal Procedure Code, 1973 or a
Special Public Prosecutor appointed by the State of Karnataka under Section 24(8)28 of the said
Code.
The learned senior counsel for the fourth respondent referred to the decision of the Supreme Court
in Kesavananda Bharati v. State of Kerala29, and submitted that the Constitution envisaged
governance on the basis of consensus and not on the basis of majority votes. The same is
manifested in the governance mechanism of Puducherry. The Lieutenant Governor and the Council
of Ministers have to work in harmony and the Lieutenant Governor is accountable to the President,
in turn the Union Council of Ministers and in turn to the Central Government. The argument put
forth on behalf of the petitioner that the Lieutenant Governor acts unto herself and is not
http://www.judis.nic.in answerable to any authority is not correct, because the Lieutenant
24
[Rep. by the Prevention of Corruption Act, 1988 (49 of 1988), sec. 31.]
25
Ibid.
26
Ibid.
27
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.
28
(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.
29
AIR 1973 SC 1461

22
Governor is not only accountable to the people of Puducherry but also to the people of the whole
country. The hallmark of our Constitution is a system of checks and balances which is a
cornerstone of democracy and the same remains uneclipsed and undiluted in any manner in the
present case.
Case: N.T. Rama Rao vs His Excellency the Governor of Andhra Pradesh.30
The High Court of Andhra Pradesh held that "... The principle of democracy underlying our
Constitution necessarily means that any such question should be decided on the floor of the House.
The House is the place where the democracy is in action. It is not for the Governor to determine
the said question on his own or on his own. verification. This is not a matter within his subjective
satisfaction. It is an objective fact capable of being established on the floor of the House."
30
1995 (3) ALT 929.

23
without dissolving the Legislative Assembly is constitutionally valid?
It is humbly submitted before the Hon’ble Court that appeal against the respondent is filed in which
Chief Minister of Union Territory was suspended without dissolving legislative assembly.
The dissolution of a legislative assembly is the mandatory simultaneous resignation of all of its
members, in anticipation that a successive legislative assembly will reconvene later with possibly
different members, A State Legislative Assembly may be dissolved in a state of emergency, by the
Governor on request of the Chief Minister, or if a motion of no confidence is passed against the
ruling majority party or coalition.
Article 174 (2) (b)31 in The Constitution of Atgama Republic 1949. give power to governor that
he can dissolve the Legislative Assembly. The Indian Constitution prescribes for an impartial
Governor with a deep sense of constitutional morality and fair play, though the power to dissolve
the Legislative Assembly but the justification is needed of dissolving. In a democracy, the
numerical strength of the elected members dictates the formation of a government and not the
belief of the Governor in given case no legislative assembly was dissolved and Chief Minister who
was in majority at the time was suspended The Governor is not permitted to take any decision on
his own without state cabinet advise when an elected government is in charge under the provisions
of Part VI32 of the constitution and no consultation with the cabinet was done regarding the matter.
Lt. Governor of Union Territory send report to the president if president satisfy imposed president
rule in the UT after considering the report and other information received by him, the president
was satisfied that a situation had arisen in which the administration of the Union Territory could
not carry on in accordance with the provisions of the Government of Union Territories Act, 1963,
then legislative assembly get dissolved.
President's rule is applied on the basis of section 51 of the Government of Union Territories Act,
1963. Which thus reads “If the President, on receipt of a report from the Administrator of the
Union territory or otherwise, is satisfied, ―
31
(2) The Governor may from time to time – (b) dissolve the Legislative Assembly
32
Part VI – Sub-ordinate Courts.

24
(a) that a situation has arisen in which the administration of the Union territory cannot be carried
on in accordance with the provisions of this Act, or
(b) that for the proper administration of the Union territory it is necessary or expedient so to do,
the President may, by order, suspend the operation of all or any of the provisions of this Act for
such period as he thinks fit and make such incidental and consequential provisions as may appear
to him to be necessary”.
There is some discretionary power which governor can use When no party gets a clear majority,
the governor has discretion to choose a candidate for chief minister who will put together a
majority coalition as soon as possible. They submit reports on their own to the president or on the
direction of the president regarding the affairs of the state. But he didn’t use these powers rather
himself suspend the chief minister and no power of suspension of chief minister is given to him.
Case: Nabam Rebia and Bamang Felix vs Deputy Speaker and Ors.33
The court said the Governor’s discretionary powers are limited to specified areas like giving assent
or withholding/referring a Bill to the President or appointment of a Chief Minister or dismissal of
a government which has lost of confidence but refuses to quit, etc. The court said the Governor’s
discretionary powers are limited to specified areas like giving assent or withholding/referring a
Bill to the President or appointment of a Chief Minister or dismissal of a government which has
lost of confidence but refuses to quit, etc when Constitution required to function in his discretion.
The expression "required" signifies that the Governor can exercise his discretionary powers only
if there is a compelling necessity to do so.
“The Governor under the Constitution has no functions which he can discharge by himself; no
functions at all. While he has no functions, he has certain duties to perform, and I think the House
will do well to bear in mind this distinction. This Article (Article 167) certainly, it should be borne
in mind, does not confer upon the Governor the power to overrule the Ministry on any particular
matter. Even under this Article, the Governor is bound to accept the advice of the Ministry”.34
33
(2017) 13 SCC 332.
34
Nabam Rebia and Bamang Felix v. Deputy Speaker and Ors. (2017) 13 SCC 332.

25
Case: Lalu Prasad @ Lalu Prasad Yadav vs The State of Jharkhand Through CBI.35
The Jharkhand High Court in March 1996 ordered the case to be handed over to the CBI. In June
1997, the CBI filed the charge sheet in the case and made Yadav an accused. The charge forced
Yadav to resign from the office of Chief Minister.
In the above case arrest warrant was passed against the CM and he was convicted then he himself
resigns from the post but in the following case NBI enquiry is not yet completed no charges were
proved and CM was just suspected but still got suspended.
As to the appointment of the Chief Minister under Article 164(1)36 of Constitution of Atgama
Republic, it is not, as pointed out before a function which the Governor is required to exercise in
his discretion. He has no choice in the matter of appointment, he has to make it, and so too in his
choice of the person whom he shall appoint as the Chief Minister, he has no discretion, but will be
governed by the principles of Party and Parliamentary Government. He has necessarily to choose
one for appointment as the Chief Minister, who shall have the support of his party and the majority
in the House or who can form a Ministry which will have the support of the majority in the House.
So too, as we said earlier, is his power of dismissal to be exercised in accordance with
parliamentary conventions.
Hence it is humbly submitted to the Hon’ble court that the suspension of democratically elected
chief minister without dissolving legislative assembly done by Lt. Governor is invalid.
35
2017 Latest Caselaw 417 SC
36
164. Other provisions as to Ministers - (1) The chief Minister shall be appointed by the Governor and the other
Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office
during the pleasure of the Governor: Provided that in the State of Bihar, Madhya Pradesh and Orissa, there shall be
a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and
backward classes or any other work

26
It is most humbly submitted before the Hon’ble High Court that the present appeal which is filed
by Former Chief Minister of Haitien City deals with the matter of president interference in the
matter of Union Territory.
The issue here concerned with the powers of President to interfere in matters of union territory he
derives power from following articles:
o Article 239 to 242 under Part VIII37 of the Atgama Republic Constitution deals with the
administration of Union Territory Every union territory is administered by the President
acting through an administrator appointed by him.
• An administrator of a union territory is an agent of the President, The President can specify
the designation of an administrator; it may be Lt. Governor of Chief Commissioner or
Administrator. In respect of Haitien city designation bestowed is that of Lieutenant Governor.
President is the head of union territory he withdraws power from Atgama Republic constitution
under article 239(1) which provides that Parliament by law, every Union territory shall be
administered by the President acting, to such extent as he thinks fit. Which give power to president
that if he feels he can interfere in the matter of union territory.
Section 49 in The Government of National Capital Territory of Delhi Act, 1991 states that
“Relation of Lieutenant Governor and his Ministers to President. Notwithstanding anything in this
Act, the Lieutenant Governor and his Council of Ministers shall be under the general control of,
and comply with such particular directions, if any, as may from time to time be given by, the
President”.
Article 356 of the constitution – dealing with provisions in case of failure of constitutional
machinery in a state – begins under sub-clause (1) as follows:
“If the President, on receipt of report from the Governor of the State or otherwise, is satisfied
that a situation has arisen in which the government of the State cannot be carried on in
37
Part VIII: The Union Territories

27
accordance with the provisions of this Constitution, the President may by proclamation, assume
to himself…”
The key word here is “otherwise”, which has been left undefined where it states in the absence
of the Governor’s report recommending President’s rule, the President can rely on any other
material to arrive at the conclusion that the constitutional machinery in a state has collapsed.
President Rule should apply in union territory when situation get out of control then report from
Lieutenant Governor need to be send if the Union Cabinet approved a proposal to dissolve the
Assembly and impose President’s rule in the UT. The President was satisfied that a situation had
arisen in which the administration of the Union Territory of Haitien city could not carry on in
accordance with the provisions of the Government of Union Territories Act, 1963. This is the
power given to president under article 239-A38. Under President’s Rule, the Lt. Governor becomes
full-fledged executive head of the government. He has the power to appoint a group of advisors
which will act as Council of ministers but there was no president rule was imposed so he can’t
work on his own without referring matter to president. Supreme court ruled that “there is no room
for absolutism and there is no room for anarchism also”.
The Union government can take over a State government under article 356 of the Constitution of
India39 through Presidential proclamation if a situation has arisen in which the government of that
State cannot be carried on in accordance with the provisions of the Constitution. cl. 5 was inserted
in article 356 by the Constitution (38th Amendment) Act, 1975 which was as follows:
"Notwithstanding anything in this Constitution, the satisfaction of the President mentioned in cl.
(1) shall be final and conclusive and shall not be questioned in any court on any ground.
Case: Govt. of NCT Of Delhi vs Union of India (2019)40
the High Court of Delhi held that since National Capital Territory of Delhi remains a Union
Territory, it is the President who continues to administer National Capital Territory of Delhi as
well as Territory of the Union.
38
Creation of local Legislatures or Council of Ministers of both for certain Union Territories.
39
Provisions in the case of failure of constitutional machinery in States.
40
(2019) SCC OnLine SC 193.

28
Article 240 of the Constitution of India states that “Power of President to make regulations for
certain Union territories, the President may, during the period of such dissolution or suspension,
make regulations for the peace, progress and good government of that Union territory”.
Case: T.M. Kanniyan vs Income-Tax Officer, Pondicherry (1967)41
Any regulation so made may repeal or amend any Act made by Parliament or any existing law
which is for the time being applicable to the Union territory and, when promulgated by
the President, shall have the same force and effect as an Act of Parliament which applies to that
territory.
The Lieutenant-Governor has not been entrusted with any independent decision-making power,”
but rather is bound by the “aid and advice” of the council of ministers,” the court ruled. “He has
to either act on the ‘aid and advice’ of Council of Ministers or he is bound to implement the
decision taken by the President on a reference being made by him.
Even there was infringement of article 2142 as it of former chief minister as it states; No person
shall be deprived of his life or personal liberty but there is no life and liberty without human
dignity. Media was also highly involved in the case several articles and editorials were published
in criticism of the Chief Minster for not stepping down from his position where his involvement
in conspiracy was just allegation which was made, nothing was proved yet and under Article
19(2)43 which restriction on freedom of speech and expression can be imposed and in that one is
in defamation a statement which injures man reputation amounts to defamation here same happens
with the former chief minister.
As in the matter concerned there was no involvement of president so we plead this to the Hon’ble
court to take that in consideration. Hence it is most humbly submitted before the Hon’ble Court
following matter where respondent acted indifference of his powers.
41
1968 AIR 637.
42
Protection of Life and Personal Liberty – under Part III of the Constitution (Fundamental Rights).
43
(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from
making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the
said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations
with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement
to an offence

29
PRAYER
Wherefore, in the light of the issues raised hereinabove, arguments advanced and authorities relied
upon, the counsel for the Petitioner humbly pray before this Hon’ble HC of Haitien City to kindly
adjudge and be pleased to declare and/or issue:
A. Act of Lt. Governor in suspending the democratically elected Chief Minister, without
dissolving the legislative assembly is constitutionally invalid.
B. Lt. Governor in intruding with the functioning of elected democratic government is not
justified and plead for the involvement of President in respected matter.
C. Compliance with interim order does not make the matter infructuous or academic or a fait
accompli. Such compliance is always subject to the final outcome of the suit, appeal and
other proceedings.
And pass any other order, direction or relief that it may deem fit
in the best interests of justice, equity and good conscience for this act of kindness,
the Petitioner shall duty bound forever Pray.
All of which respect is submitted counsels for the Petitioner.

TC 2209 (Petitioner)

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TEAM CODE: VIM/SLC/2209

S,S, JAIN SUBODH LAW COLLEGE

INTRA COLLEGE VIRTUAL MOOT COURT COMPETITION 2022

IN THE HON’BLE HIGH COURT OF HAITIEN CITY

WRIT PETITION FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF

IN THE MATTER OF: -

GABRIEL BORHIC …………………….…………………...……………….. PETITIONER

CARALINE BLINKEN ………….…………………………...………. RESPONDENT No. 1

CHIEF SECRETARY OF HAITIEN CITY …………………..….… RESPONDENT No. 2

DIRECTOR GENERAL, NBI ……………………………..………… RESPONDENT No. 3

MOST RESPECTFULLY SUBMITTED BEFORE THE HON’BLE HIGH COURT OF

MEMORIAL ON BEHALF OF PETITIONER

DRAWN AND FILED BY THE COUNSELS FOR THE PETITIONER

TABLE OF CONTENTS ……………………………………………………………………... 2

INDEX OF AUTHORITIES ……………………………………………………………….. 3-4

LIST OF ABBREVIATIONS ……………………………………………………………… 5-6

STATEMENT OF JURISDICTION ………………………………………………………..… 7

STATEMENT OF FACTS ……………………………………….………………………….. 8-9

ISSUES RAISED …………………….……………………………………………...……….. 10

SUMMARY OF ARGUMENTS …………………………………………….…………… 11-12

ARGUMENTS ADVANCED …………………………………………...………………. 13-28

PRAYER FOR RELIEF .…………………………………………………………………….. 29

WRITTEN SUBMISSION ON THE BEHALF OF PETITIONER

❖ Supreme Court Cases

❖ High Court Cases

WRITTEN SUBMISSION ON THE BEHALF OF PETITIONER

9. The Prevention of Corruption Act, 1947.

WRITTEN SUBMISSION ON THE BEHALF OF PETITIONER

AIR All India Reporter

ALT Alternative Law Journal

GNCT Government of National Capital Territory

IPC Indian Penal Code

NCT National Capital Territory

WRITTEN SUBMISSION ON THE BEHALF OF PETITIONER

NDMC New Delhi Municipal Corporation

NIA National Investigating Agency

SCC Supreme Court Cases

UOI Union of India

W.P. Writ Petition

WRITTEN SUBMISSION ON THE BEHALF OF PETITIONER

WRITTEN SUBMISSION ON THE BEHALF OF PETITIONER

WRITTEN SUBMISSION ON THE BEHALF OF PETITIONER

WRITTEN SUBMISSION ON THE BEHALF OF PETITIONER

WRITTEN SUBMISSION ON THE BEHALF OF PETITIONER

WRITTEN SUBMISSION ON THE BEHALF OF PETITIONER

WRITTEN SUBMISSION ON THE BEHALF OF PETITIONER

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WRITTEN SUBMISSION ON THE BEHALF OF PETITIONER

Section 19 of the Prevention of Corruption (Amended) Act, 2018 reads as follows:

WRITTEN SUBMISSION ON THE BEHALF OF PETITIONER

WRITTEN SUBMISSION ON THE BEHALF OF PETITIONER

Case: N.T. Ramarao v. His Excellency the Governor of Andhra Pradesh13

Case: GNCT Delhi v. Union of India (2019)14

WRITTEN SUBMISSION ON THE BEHALF OF PETITIONER

WRITTEN SUBMISSION ON THE BEHALF OF PETITIONER

Case: Govt. of NCT Of Delhi vs Union of India (2019)20

WRITTEN SUBMISSION ON THE BEHALF OF PETITIONER

Prevention of Corruption Act, 1947, Section 6 of the Act states:

WRITTEN SUBMISSION ON THE BEHALF OF PETITIONER

WRITTEN SUBMISSION ON THE BEHALF OF PETITIONER

WRITTEN SUBMISSION ON THE BEHALF OF PETITIONER

WRITTEN SUBMISSION ON THE BEHALF OF PETITIONER

WRITTEN SUBMISSION ON THE BEHALF OF PETITIONER