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BEFORE THE HON’BLE HIGH COURT OF DELHI


Writ Petition (Civil) No. ……………………….. of 2011

Vs.

In the matter of

…....................................Petitioner

Versus

…..................................Respondent

PETITIONERS:

RESPONDENTS:

1. Union of India represented by the Secretary,


Ministry of Communications & Information Technology,
Electronics Niketan, 6, CGO Complex, Lodhi Road, New Delhi 110003

Address for service of notice etc. on the petitioner is that of his counsel M/s .

Address for service of notice etc. on the respondent is as shown above.

New Delhi
Dated : May 2011
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SYNOPSIS AND LIST OF DATES & EVENTS

The Petitioner is constrained to file the present Writ Petition challenging the rules

and Regulations passed by the Respondent in violation of fundamental rights

granted under Article 19 (1) (a) of the Constitution of India,

Counsel for the Petitioner.


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BEFORE THE HON’BLE HIGH COURT OF DELHI


(Special Original Jurisdiction)
Writ Petition (Civil) No. ……………………….. of 2011
(Special Original Jurisdiction)

In the matter of

…....................................Petitioner

Versus

…..................................Respondent

PETITIONERS:

PETITION UNDER ARTICLE 226 AND 227 OF THE


CONSTITUTION OF INDIA FOR A WRIT, ORDER OR DIRECTION IN
THE NATURE OF MANDAMUS DIRECTING THE RESPONDENT NO.1

TO THE HON'BLE CHIEF JUSTICE AND HIS COMPANIION


JUSTICES OF THE HON'BLE HIGH COURT OF DELHI AT NEW
DELHI THE HUMBLE PETITION OF THE ABOVENAMED
PETITIONER S

MOST RESPECTFULLY SHOWETH:

1. That the Petitioners are constrained to file the present Writ Petition
challenging the Rules and Regulations........
DESCRIPTION OF THE PETITIONERS

2. The Information Technology Act, 2000 was introduced to to provide legal


recognition for transactions carried out by means of electronic date interchange and other
means of electronic communication, commonly referred to as "electronic commerce",
which involve the use of alternative to paper-based methods of communication and storage
of information to facilitate electronic filing of documents with the Government agencies.
The Act has listed various offences under it. The Principal Act was amended by the
Information Technology (Amendment) Act, 2008, which received the assent of the
President on 05-02-2009 and came into force on 27-10-2009 as per Notification No.
S.O.2689(E) dated 27-10-2009. This Amendment Act has made substantial amendments to
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various provisions in the Principal Act. Among the various amendments, Section 79 of the
Principal Act was substituted. Section 79 provides for exemption from liability of
intermediary. As per clause (w) of sub-section (1) of Section 2 of the Principal Act as
amended, intermediary, with respect to any particular electronic records, means any person
who on behalf of another person receives, stores or transmits that record or provides any
service with respect to that record and includes telecom service providers, network service
providers, internet service providers, web-hosting service providers, search engines, on-line
payment sites, on-line auction sites, on-line market places and cyber cafes. The Central
Government notified the Information Technology (Intermediaries guidelines) Rules, 2011,
on 11th April 2011, prescribing guidelines for intermediaries, in exercise of the powers
conferred by clause (zg) of sub- section (2) of section 87 read with sub-section (2) of
section 79 of the Information Technology Act, 2000 (21 of 2000). A true copy of these
rules notified on 11th April, 2011 is produced and marked as Exhibit P1.

3. Rule 3 of Ext. P1 rules prescribes due diligence to be observed by the


intermediary. Sub-rule (1) of rule 3 mandates intermediaries to publish rules and
regulations, privacy policy and user agreement for access or usage of the intermediary's
computer resource. Sub-rule (2) of rule 3 mandates the intermediary to inform users the
kind of information that cannot be hosted, uploaded, modified, published, transmitted,
updated or shared. Sub-rule (3) of rule 3 mandates that the intermediary shall not
knowingly host or publish any information or shall not initiate the transmission, select the
receiver of transmission, and select or modify the information contained in the transmission
as specified in sub-rule (2) . Sub-rule (4) of rule 3 requires the intermediary to disable
information that is in contravention of sub-rule (2) within 36 hours, upon obtaining
knowledge by itself or on being brought to actual knowledge by an affected person . Sub-
rule (5) of rule 3 mandates the intermediary to inform users that in case of non-compliance
with rules and regulations, user agreement and privacy policy for access or usage of
intermediary computer resource, the Intermediary has the right to immediately terminate
the access or usage rights of the users to the computer resource of Intermediary and remove
non-compliant information. Sub-rule (7) of rule 3 mandates the intermediary to provide
information to Government agencies on a request in writing.

4. It is submitted that, in the present digital age, blogs and websites are a
medium for citizens and the civil society to express their views. Blogs and websites have a
great role to play in forming public opinion as well as in reporting news and events from
places of political unrest and revolutions against dictatorial regimes as evidenced in the
recent events in Tunisia and Egypt, and in the case of natural disasters such as the
earthquake and Tsunami which recently struck Japan. The intermediaries play an important
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role in dissemination of information by providing tools and platforms that allow users to
access the Internet, host content, share files and transact business. Ext.P1 rules by
mandating the intermediaries to place restrictions on the content posted on their websites
will result in restrictions on the freedom of speech and expression of the citizens of India.
Ext.P1 rules while providing for an affected party to complain about a posted content does
not afford a right of hearing to the user who posted the content. The rules by mandating
the intermediaries to provide information to Government agencies to share information on a
written request will adversely affect the privacy of citizens.

The petitioner is an organisation.... The petitioner has no other effective and alternative
remedy for the redressal of his grievance than to approach this Hon’ble Court and seek to
invoke its extra-ordinary jurisdiction under Article 226 of the Constitution of India on the
following among other grounds. The Petitioner reserves its right to amend or alter the
present petition including the grounds therein.

GROUNDS

A. That the rules violate the fundamental right to freedom of speech and expression
granted to citizens and are unconstitutional: Sub-rule (4) of rule 3 of Ext.P1 rules
mandates that the intermediary, on whose computer system the information is stored or
hosted or published, upon obtaining knowledge by itself or been brought to actual
knowledge by an affected person in writing or through email signed with electronic
signature about any such information as mentioned in sub-rule (2) above, shall act within
thirty six hours and where applicable, work with user or owner of such information to
disable such information that is in contravention of sub-rule (2) . Sub-rule (2) of Rule 3
includes an exhaustive list including information that is grossly harmful, harassing,
blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of
another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or
encouraging money laundering or gambling, or otherwise unlawful in any manner
whatever. The subject matter of information listed in sub-rule (2) of rule 3 is highly
subjective and could result in wide interpretation. The rules place a burden on the
intermediaries to decide on the lawful nature of the content as a pre-condition for
exemption from liability. The intermediaries, on receiving a complaint, to ensure that they
continue to receive the protection offered by Section 79 of the Act, will be forced to disable
access to the content posted by a user. Under Ext.P1 rules, any person who is critical of an
article or a blog post can raise a complaint with an intermediary, and this will result in
removal of the content by the intermediary. Thus, the direct effect of the rules will be strict
censoring of content posted on-line by users. The rules will have a direct effect on the
fundamental right of freedom of speech and expression guaranteed under Article 19(1) of
the Constitution of India. Article 19(1) of the Constitution of India guarantees all citizens
the right to freedom of speech and expression.
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Clause (2) of Article 19 permits the state to make laws mandating 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. Thus, any restrictions that can be made on the right of citizens to freedom of
speech and expression can only be within the ambit of clause (2) of Article 19. Any
unreasonable restrictions on fundamental rights, that are imposed by a statute or executive
orders are liable to be struck down as unconstitutional by a competent court. The Hon'ble
Supreme Court has held in Express Newspapers (Private) Ltd. and Anr. Vs. The Union of
India (UOI) and Ors., AIR 1958 SC 578 that if any limitation on the exercise of the
fundamental right under Art. 19(1)(a) does not fall within the four corners of Art. 19(2) it
cannot be upheld. The Hon'ble Court further held that there can be no doubt that freedom
of speech and expression includes freedom of propagation of ideas.

It is submitted that in judging whether a statute is constitutional the effect that the statute
will have on the fundamental rights of citizens has to be examined. The effect of Ext.P1
rules will be strict censorship by intermediaries of content posted by users. Such an action
by the intermediaries will affect the fundamental right of freedom of speech and expression
guaranteed by Article 19(1) of the Constitution of India. A five-judge bench of the Hon'ble
Supreme Court held in Bennett Coleman & Co. Vs. Union of India (UOI), AIR1973 SC
106, (1972) 2 SCC 788 that:

“The true test is whether the effect of the impugned action is to take away or
abridge fundamental rights. If it be assumed that the direct object of the law or
action has to be direct abridgement of the right of free speech by the impugned
law or action it is to be related to the directness of effect and not to the
directness of the subject matter of the impeached law or action. The action may
have a direct effect on a fundamental right although its direct subject matter
may be different. A law dealing directly with the Defence of India or
defamation may yet have a direct effect on the freedom of speech. Article
19(2) could not have such law if the restriction is unreasonable even if it is
related to matters mentioned therein. Therefore, the word "direct" would go to
the quality or character of the effect and not to the subject matter”.

The Hon'ble Supreme Court considered the issue of restrictions on freedom of speech in
detail in Sakal Papers (P) Ltd. Vs. The Union of India, AIR 1962 SC 305. The Hon'ble
Court held in para 31 of the judgment that :
“ It must be borne in mind that the Constitution must be interpreted in a broad
way and not in a narrow and pedantic sense. Certain rights have been enshrined
in our Constitution as fundamental and, therefore, while considering the nature
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and content of those rights the Court must not be too astute to interpret the
language of the Constitution in so literal a sense as to whittle them down. On
the other hand the Court must interpret the Constitution in a manner which
would enable the citizen to enjoy the rights guaranteed by it in the fullest
measure subject, of course, to permissible restriction. Bearing this principle in
mind it would be clear that the right to freedom of speech and expression
carries with it the right to publish and circulate one's ideas, opinions and views
with complete freedom and by resorting to any available means of publication,
subject again to such restrictions as could be legitimately imposed under clause
(2) of Article 19. The first decision of this Court in which this was recognized
is Romesh Thapar v. State of Madras MANU/SC/0006/1950 : 1950CriLJ1514 .
There, this Court held that freedom of speech and expression includes freedom
of propagation of ideas and that this freedom is ensured by the freedom of
circulation. In that case this Court has also pointed out that freedom of speech
and expression are the foundation of all democratic organisations and are
essential for the proper functioning of the processes of democracy. These and
in other cases this Court pointed out that very narrow and stringent limits have
been set to permissible legislative abridgment of the right of freedom of speech
and expression. In State of Madras v. V. G. Row MANU/SC/0013/1952 :
1952CriLJ966 , the question of the reasonableness of restrictions which could
be imposed upon a fundamental right has been considered. This Court has
pointed out that the nature of the right alleged to have been infringed, the
underlying purpose of the restrictions imposed, the extent and scope of the evil
sought to be remedied thereby, the disproportion of the imposition and the
prevailing conditions at that time should all enter into the judicial verdict. In
Dwarkadas Shriniwas v. The Sholapur Spinning & Wearing Co., Ltd.
MANU/SC/0019/1953 : [1954]1SCR674 this Court has pointed out that in
construing the Constitution it is the substance and the practical result of the act
of the State the should be considered rather than its purely legal aspect. The
correct approach in such cases should be to enquire as to what in substance is
the loss or injury caused to the citizen and not merely what manner and method
has been adopted by the State in placing the restriction”

Ext.P1 rules go beyond the permissive limits to freedom of speech and expression that can
be imposed by a statute. Rule 3 of the the Information Technology (Intermediaries
guidelines) Rules, 2011 is violative of the fundamental right to freedom of speech and
expression guaranteed under Article 19(1) of the Constitution of India and is liable to be
struck down.

In Romesh Thappar Vs. The State of Madras, AIR 1950 SC 124, the Hon'ble Supreme
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Court held that:

“ It was, however, argued that section 9(1-A) could not be considered wholly
void, as, under article 13(1), an existing law inconsistent with a fundamental
right is void only to the extent of the inconsistency and no more. In so far as the
securing of the public safety or the maintenance of public order would include
the security of the State, the impugned provision, as applied to the latter
purpose, was covered by clause (2) of article 19 and must, it was said, be held
to be valid. We are unable to accede to this contention. Where a law purports to
authorise the imposition of restrictions on a fundamental right in language wide
enough to cover restrictions both within and without the limits of
constitutionally permissible legislative action affecting such right, it is not
possible to uphold it even so far as if may be applied within the constitutional
limits, as it is not severable. So long as the possibility of its being applied for
purposes not sanctioned by the Constitution cannot be ruled out, it must be held
to be wholly unconstitutional and void. In other words, clause (2) of article 19
having allowed the imposition of restrictions on the freedom of speech and
expression only in cases where danger to the State is involved, an enactment,
which is capable of being applied to cases where no such danger could arise,
cannot be held to be constitutional and valid to any extent.”.

Ext.P1 rules, with the broad list of unlawful information mentioned in sub-rule (2) of rule
3, can be used for purposes not sanctioned by the Constitution, and hence the rules, as a
whole, are liable to be held as unconstitutional and struck down.

B. That the rules are unreasonable and arbitrary: Sub-rule (2) of Rule 3 mandates
intermediaries to place restrictions on the kind of content that a user can post by listing a
broad list of information. Sub-rule (2) of Rule 3 mandates users not to host information
included in a broad list that includes information that is grossly harmful, harassing,
blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of
another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or
encouraging money laundering or gambling, or otherwise unlawful in any manner
whatever. The subject matter of information listed in sub-rule (2) of rule 3 is highly
subjective and is not defined either in the rules or in the Act. The action of the respondent
in notifying Ext.P1 rules is highly unreasonable and arbitrary. Sub-rule (4) of rule 3 that
mandates that the intermediary, upon obtaining knowledge by itself or been brought to
actual knowledge by an affected person about any such information as mentioned in sub-
rule (2) above, shall act within thirty six hours to disable such information that is in
contravention of sub-rule (2), does not provide for an opportunity to the user who has
posted the content to reply to the complaint and to justify his case. The rule that mandates
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the intermediary to disable the content without providing an opportunity of hearing to the
user who posted the content is highly arbitrary. Moreover, the rules result in endowing an
adjudicating role to the intermediary in deciding questions of fact and law, which can only
be done by a competent court. Such a provision of the rules is highly unreasonable and
arbitrary. Moreover sub-rule (5) of rule 3 mandates the intermediary to inform users that in
case of non-compliance with rules and regulations, user agreement and privacy policy for
access or usage of intermediary computer resource, the Intermediary has the right to
immediately terminate the access or usage rights of the users to the computer resource of
Intermediary and remove non-compliant information. This provision will result in
termination of services to a user on posting of any content which the intermediary deems as
unlawful. Such a power mandated to be exercised by the intermediary is highly
unreasonable and arbitrary. The Hon'ble Supreme Court in Bidhannagar (Salt Lake)
Welfare Association Vs. Central Valuation Board and Ors., AIR 2007 SC 227:(2007)6 SCC
668 held that “When a substantive unreasonableness is to be found in a statute, it may have
to be declared unconstitutional.” The Hon'ble Supreme Court has held in Indian Express
Newspapers (Bombay) Pvt. Ltd. v. Union of India, AIR 1986 SC 515 that:

“A piece of subordinate legislation does not carry the same degree of


immunity which is enjoyed by a statute passed by a competent legislature
Subordinate legislation may be questioned on any of grounds on which
plenary legislation is questioned. In addition it may also be questioned on
the ground that it does not conform to the statute under which it is made. It
may further be questioned on the ground that it is contrary to some other
statute. That is because subordinate legislation must yield to plenary
legislation. It may also be questioned on the Ground that it is unreasonable,
unreasonable not in the sense of not being reasonable, but in the sense that it is
manifestly arbitrary.”

The Hon'ble Court further held that

“On the facts and circumstances of a case, a subordinate legislation may be


struck down as arbitrary or contrary to statute if it fails to take into account
very vital facts which either expressly or by necessary implication are
required to be taken into consideration by the statute or, say, the
Constitution. This can only be done on the ground that it does not conform to
the statutory or constitutional requirements or that it offends Article 14 or
Article 19 (1) (a) of the Constitution”.

Ext.P1 rules are unreasonable and arbitrary and are liable to be struck down.

C. That the rules violate the right to privacy of citizens and are unconstitutional: Sub-
rule (7) of rule 3 mandates the intermediary, when required by lawful order, to provide
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information or any such assistance to Government Agencies who are lawfully authorised
for investigative, protective, cyber security activity. The requirement for lawful order is
modified while mandating that the information or any such assistance shall be provided for
the purpose of verification of identity, or for prevention, detection, investigation,
prosecution, cyber security incidents and punishment of offences under any law for the
time being in force, on a request in writing stating clearly the purpose of seeking such
information or any such assistance. The requirement of giving information about users by
the intermediary on a mere written request from an agency could have serious implications
on the right to privacy of citizens. Right to privacy as a component of Article 21 of the
Constitution of India, which guarantees for “right to life and personal liberty” has been
recognised by the Hon'ble Supreme Court in Gobind v. State of Madhya Pradesh, (1975) 2
SCC 148 and R. Raj Gopal v. State of Tamil Nadu,(1994) 6 SCC 632. This right can be
curtailed only by a procedure established by law and cannot be done arbitrarily. The
Hon'ble Supreme Court of India in People's Union of Civil Liberties (PUCL)Vs. Union of
India (UOI) and Anr., (1997)1 SCC 301, while deliberating on the issue of tapping of
telephone conversation held that “Telephone-Tapping is a serious invasion of an
individual's privacy” and prescribed guidelines for that. The rules by providing for
information to be provided by intermediaries on a written request will result in wire-
tapping of the internet without any legal safeguards whatsoever. Ext.P1 rules are violative
of the right to privacy which is an integral part of the fundamental right of right to life and
personal liberty guaranteed to all and are liable to be struck down as unconstitutionsal

D. The rules are ultra vires of the Act and are invalid: The Central Government obtains
the source of power to issue Ext.P1 rules from the provisions of the Information
Technology Act, 2000. The rule making power has to be strictly confined to the boundaries
specified as per the Act and cannot result in expanding the scope of the Act. Chapter XII
of the Information Technology Act, 2000 (as amended) provides exemption from liability
of intermediaries in certain cases. This exemption is subject to certain conditions to be
observed by the intermediaries. The Government obtains the source of power to issue these
rules from two provisions of the Act :
S.79 (2) (c) – ...the intermediary observes due diligence while discharging his
duties under this Act and also observes such other guidelines as the Central
Government may prescribe in this behalf.
S.87 (2) (zg) - the guidelines to be observed by the intermediaries under sub-
section (2) of section 79
Thus the rule making power of the Central Government is limited to prescribing other
guidelines in this behalf. These guidelines can only be related to “due diligence” to be
observed by the intermediary while discharging its duties under the Act. But Ext.P1 rules
have widened the scope of the Act by legislating on information that can be posted by a
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user and listing a much broad list of of information that can be considered as unlawful.
Ext. P1 rules goes beyond controlling intermediaries and result in controlling the users who
post content.

The Hon'ble Supreme Court has held in State of Karnataka and Anr. Vs. Ganesh Kamath
and Ors. (1983)2 SCC 40 that:

“it is a well settled principle of interpretation of statutes that the conferment of


rule-making power by an Act does not enable the rule-making authority to
make a rule which travels beyond the Scope of the enabling Act or which is
inconsistent there with or repugnant thereto”.

The Hon'ble Supreme Court has held in Agricultural Market Committee Vs. Shalimar
Chemical Works Ltd. (1997)5 SCC 516 that the delegate which has been authorised to make
subsidiary Rules and Regulations has to work within the scope of its authority and cannot
widen or constrict the scope of the Act or the policy laid down thereunder. It cannot, in the
garb of making Rules, legislate on the field covered by the Act and has to restrict itself to
the mode of implementation of the policy and purpose of the Act. In view of the law as laid
down in the aforementioned judgments, the respondent has acted beyond its powers
vested by the Information Technology Act, 2000 in framing the Ext.P1 rules. Ext.P1 rules
are in excess of the provisions contained in Section 79 of the Act as amended. Various
provisions contained in Ext.P1 Rules have, in fact, made additions to the provisions in
Section 79 of the Act. Rules have thus added and amended the provisions in the Act.
Ext.P1 rules notified by the respondent are ultra vires of the Information technology Act,
2000 and are liable to be struck down.

Section 69 of the Information Technology Act, 2000 deals with the power to issue
directions for interception or monitoring or decryption of any information through any
computer resource. Sub-section (2) of Section 69 provides for procedures and safeguards
subject to which such interception or monitoring may be carried out. The Information
Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of
Information) Rules, 2009 were notified by the Government to provide for such safeguards
and procedures. These rules enshrine the guidelines prescribed by the Hon'ble Supreme
Court in People's Union of Civil Liberties (PUCL)Vs. Union of India (UOI) and Anr.,
(1997)1 SCC 301. These rules mandate that such interception or monitoring of information
can be carried out by an order by an order issued by a competent authority. The competent
authority to issue such an order under these rules is the Secretary in the Ministry of Home
Affairs, in case of Central Government or the Secretary in charge of the Home Department,
in case of a State Government or Union Territory. Sub-rule (7) of rule 3 that mandates an
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intermediary to provide information does not have any such safeguards and is in violation
of the provisions of the Act and the rules issued thereunder. Ext.P1 rules are thus ultra
vires of the Act and are liable to be struck down.

PRAYER

Hence it is humbly prayed that this Hon’ble Court may be pleased:

In the light of the foregoing it is respectfully prayed that this Hon’ble Court be pleased to:

1. i) to issue an appropriate writ, or order declaring that Ext.P1 Rules are ultravires of
the Constitution and void;
ii) to issue an appropriate writ or order declaring that Ext.P1 rules are ultravires the
provisions in the Information Technology Act, 2000 and thus illegal.

2. To issue such other appropriate writ, order or directions as this Hon’ble court may
deem just and proper to issue in the circumstances of the case.

3. For such other or further order(s) or direction(s) as this Hon'ble Court deem fit and
proper in the facts and circumstances of the case.

4. FOR WHICH ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND


SHALL EVER PRAY

INTERIM RELIEF PRAYED FOR

This Hon’ble Court be pleased to issue an interim order staying the operation of
Ext.P1 rules.

Dated this the 16th of May, 2011.

PETITIONER

Counsel for the Petitioner.


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BEFORE THE HON’BLE HIGH COURT OF DELHI


Writ Petition (Civil) No. ……………………….. of 2011

Petitioner
Vs.
Union of India Respondents

AFFIDAVIT

I, ….. do hereby solemnly affirm and state as follows:-

1. I am the petitioner in the above W.P. and am conversant with the facts of
the case
2. That the contents of the present Writ Petition are based on the documents
available iand are true and correct to the best of my knowledge, information and
belief.
3.That the annexures annexed to the Petition are true copies of their
respective originals.
4. The interim order prayed for is just and necessary.
5. I have not filed earlier petitions seeking similar and identical reliefs in
respect of the same subject matter.
All the facts stated above are true and correct.
Dated this the .

DEPONENT.

VERIFICATION

Verified at New Delhi on this __ day of October, 2006 that the contents of the
above paras are true and correct to the best of knowledge and belief and nothing
material has been concealed therefrom.

DEPONENT

, Advocate.
14

BEFORE THE HON’BLE HIGH COURT OF DELHI


Writ Petition (Civil) No. ……………………….. of 2011
Petitioner
Vs.
Union of India Respondents

INDEX

Dated this the

Counsel for the Petitioner


15

Presented on:
BEFORE THE HON’BLE HIGH COURT OF DELHI
Writ Petition (Civil) No. ……………………….. of 2011

Petitioner
Vs.
Union of India Respondents

WRIT PETITION (CIVIL) UNDER ARTICLE 226 OF THE


CONSTITUTION OF INDIA
Court Fee Rs.100/- paid

M/s

Counsel for the Petitioner

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