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Md. Ibrahim Khan Vs. Susheel Kumar and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit petn. No. 4667 of 1982
Judge
Reported inAIR1983AP69
ActsCommissions of Inquiry Act, 1952 - Sections 5, 5(4), 8, 8B and 8C; Constitution of India - Article 226
AppellantMd. Ibrahim Khan
RespondentSusheel Kumar and anr.
Appellant AdvocateH.S. Gururaj Rao, Adv.
Respondent AdvocateAdv. General and ;N. Subbareddy, Government Pleader for F.&A.
Excerpt:
constitution - enquiry commission - sections 5, 5 (4), 8, 8b and 8c of commissions of inquiry act, 1952 and article 226 of constitution of india - petitioner was involved in alleged acts of land grabbing - state government appointed commission of inquiry to inquire into allegations of land grabbing by petitioner - petitioner seek relief to interdict proceeding of commission of inquiry on ground that procedure followed by commission was contrary to provisions of inquiry act - court observed that constitution of commission was not questioned - perusal of term of reference clearly showed that allegations were quite specific - revenue records used to prove them - commission was vested with full discretion to regulate its own proceedings in respect of any matter for which no procedure made in.....chennakesav reddy, j.1. mohammad ibrahim khan, now know to the public as the 'king of land grabbers' is the petitioner in this writ petition. he disclosed to be public disturbing facts. he involved in the alleged acts of land grabbing some senior civilians and veteran political grandsires provoking a probe by a high power commission. he now seeks to invoke the extraordinary jurisdiction of this court under art. 226 of the constitution to interdict the proceeding of the commission of inquiry, land grabbing, by the issue of 'writ mainly on the ground that the procedure followed by the commission is contrary to the provisions of the commissions of inquiry act, 1952 and the rules made thereunder.2. by g.o. ms. no. 146, general administration (general-b) department, dated 17th march, 1982 the.....
Judgment:

Chennakesav Reddy, J.

1. Mohammad Ibrahim Khan, now know to the public as the 'King of Land Grabbers' is the petitioner in this writ petition. He disclosed to be public disturbing facts. He involved in the alleged acts of land grabbing some senior civilians and veteran political grandsires provoking a probe by a high power commission. He now seeks to invoke the extraordinary jurisdiction of this Court under Art. 226 of the Constitution to interdict the proceeding of the commission of Inquiry, Land Grabbing, by the issue of 'writ mainly on the ground that the procedure followed by the commission is contrary to the provisions of the commissions of Inquiry Act, 1952 and the Rules made thereunder.

2. By G.O. Ms. No. 146, General Administration (General-B) Department, dated 17th March, 1982 the Government of Andhra pradesh appointed a commission of Inquiry under the commissions of Inquiry Act, 1952 (central Act 60 of 1952) consisting of a single member viz., sri susheel Kumar, I.A.S. commissioner of sugar and Ex-officio secretary to Government industries and commerce department to enquire into the allegations of land grabbing by Mohd. Ibrahim Khan,the petitioner. The commission was requested to complete its enquiry and submit its report on or before 17th May, 1982. Subsequently, by G.O. Ms. No. 208. General Administration (General-B) department dated 13 April, 1982, an amendment to the Notification issued under G.O. Ms. No. 146 was issued. By the said amendment, the terms of reference were modified and they read as follows:-

'2. The terms of reference of th commission shall be as follows:-

(1) to probe and inquire into such of the cases pertaining to complaints and allegations of alnd grabbing of Government lands, local authorities land and also of certain private owners' lands by sri Mohd. Ibrahim Khan son of sri Mahaboob Khan of Hydewrabad city and his associates, either directly or by formation of bogus co-operative Housing societies registered in the Hyderabad (urban) and Ranga reddy districts or otherwise which are submitted to or filed in the office of the commission by the Director general of police, andhra pradesh or by the commissioner of police, Hyderabad city or by the district collectors of Hyderabad (urban) and Ranga Reddy Districts or by the state crime branch C.I.D. more particularly into those cases that are described in the Annexure appended hereto.

(2) to inquire into other complaints and allegations related thereto or connected therewith'.

By G.O. Ms. No. 271 dated 17th may, 1982 the time limit for the submission of the report was also extended till 15th July, 1982.

3. The commission issued notices on 26-5-1982 under Rule 4(1) (a) of the Andhra Pradesh commissions of Inquiry rules, 1968 (hereinafter referred ot as the rules) to the petitioner and several others to furingh statements in duplicate accompanied by affadavits and documents relating to the matters mentioned in the notice. Simultaneously with the issue of the aforesaid notice, a general notification in all important local dailies was got pulbished as required by Rule 4 (1) (b0 of the Rules. In response to the above notices, several persons filed statements supported by affidavits and documents indicting the petitioner. But the petitioner raised several objections to the notice contending that the notice was ultra vires the provisions of Article 20(3) of the Constitution, and further that land grabbing by a particular individual was not a matter of public importance for the appointment of any commission to recall its notice. On a consideration of the objections raised by the petitioner the commission by its order dated 23rd June, 1982 rejected the contentionsof the petitioner. The commission to inspect such documents as were produced before the commission. After a careful scrutiny of the several affidavits and documents received by the commission in response to the notices under Rule 4 (1) (b) of the rules the commission felt that the allegations contained in and the information furnished through the aforesaid affidavits and documents might prejudicially affect the petitioner's reputation. So on 24-6-1982. Three notices were issued to the petitioner under section 8-b of the commissions of Inquiry Act, 1952 (hereinafter referred to as the Act) on 24-6-82 and 26-6-82 and 26-6-82. By the said notices, the petitioner was informed that it was necessary to enquire inyo his conduct and his reputation may be prejudicially affected by the allegations contained and the information furnished in the affidavits mentioned in the notices. He was further informed that he may avail of the opportunity by producing the necessary material in the form of affidavits accompanied by the authenticated documents touching the matters raised in the affidavits particularly regarding the nature, identity of survey Numbers and extent of the land abutting or forming part of Makta madar shah' the possession of which the Government had taken on 2-5-1982, the land alleged to have been encroached upon by Bakelite Hylam Employees' co-operative House building society, the land claimed by the united co-operative Housing society. Hyderabad and our home weaker sections co-operative society which is said to belong to jubilee hills Housing society, hyderabad. The petitioner made three applications on 29-6-1982, 30-6-1982 and 1-7-1982, in respect of the aforesaid three notices respectively requesting the commission to furnish the copies of the several documents referred to in the affidavits mentioned in the notices and give him reasonable time to submit his explanation after furnishing the copies. He also requested that under the Act he cannot be called upon to submit his explanation even before he is given an opportunity to cross examine the witnesses by calling them before the commission with reference to the affidavits filed by them. The commission of Inquiry by its order dated 3-7-1982, obseved that the commission of Inquiry was only a fact-finding body and that the procedure adopted by the commission was not violative of the principles of natural justice. Further the petitioner was permitted to inspect all the documents filed before the commission between 5-7-1982 and 9-7-1982 and take copies of any documents in the presence of the secretary to the commission within the stipulated time. He was also granted extension of time to avail of the opportunity as provided in the notices under section 8B of the Act by 12-7-1982. On 5-7-1982 While the petitioner was taking extracts of the order dated 15-9-1950. The representative of the revenue Department N. Veera Reddy objected to the taking of extracts from the above report. Therefore the petitioner filed a petition on 5-7-1982, requesting the commission to permit him to take a copy of the report of the land record Officer referred to in the order of the collector dated 15-9-1950. He also filed petitions on 6-7-1982 and 7-7-1982 to summon the officers who have given report against him and permit him to cross-examine them as well as the investigating officers. He claimed that he has such a right to cross-examine the witnesses under the Act and the Rules made thereunder. The commission of inquiry by its order dated 7-7-1982 up held the privilege claimed on behalf of the revenue department under sections 123 and 124 of the Evidence Act in respect of 4 documents and permitted the petitioner to take copies of the other documents. The prayer of the petitioner to cross-examine the witnesses who have sworn to the affidavits before the Commission was rejected holding that the right to cross-examine a witness arises only when a witness is examined orally by the commission and not when the evidence is taken on affidavits. The petitioner wa permitted by the commission to tender his evidence in the form of affidavits as already intimated to him in the notices issued under section 8B of the Act. Aggrieved against the proceedings of the commission dated 24-6-1982, 26-6-1982 and 26-6-1982 under sec. 8B of the Act and the order of the commission dated 7-7-1982 rejecting the request of the petitioner to cross-examine the witnesses who have given evidence by way of affidavits, the petitioner has filed this writ petition to quash the said notices under section 8B of the Act and the order of the commission dated 7-7-1982.

4. The learned counsel for the petitioner Mr. Gururaja Rao, Submits that the commission of Inquiry is not competent to go into the questions of title to the property and can only go into the conduct and reputation of any person. But, argues the learned counsel that the three notices under section 8B of the Act issued by the commission dated 24-6-1982, 26-6-1982 and 26-6-1982 really raised questions of title to the immoveable property. The learned counsel further pleads that no enquiry by the commission is called for nor permissible, in respect of the land known as 'Makta Madar Shah' which the Government have admittedly taken possession of on 2-5-1982 and a civil suit filed by the petitioner and an appeal filed under the hyderabad land revenue Act are already pending in respect of the same property.

5. The learned counsel in support of his submission placed reliance on a decision of the delhi High Court in dhirendra Brahmachari v. Union of India, AiR 1979 NoC 91 (Delhi) wherein it was observed:

'A commission should not deal with a matter if a civil or criminal Court is already seized of it'.

6. On the other hand, the learned Advocate General appearing for the state Government submits that the enquiry by the commission is into a matter a public importance, namely systematic large scale grabbing of Government lands, the commission is only a fact finding body and questions of title are not decided. According tot he learned Advocate General the enquiry relates only to the conduct and reputation of the petitioners. The allegations against the petitioner relate to large scale tampering of revenue records showing survey Numbers which for the purpose of land grab, were never in existence. In an enquiry into such allegations according to him, the questions of title might incidentally arise and the commission being only a fact finding body, it will only help the Government to form its opinion for further action.

7. It is true that the only power of the commission is to enquire and make a report and embody therein its recommendations. The commission has no power of adjudication of any questions of title or dispute and pass a decree which can be enforced proprio vigore. There is no charge as such against any personl not is there any accused or accusor. There is neither a plaintiff nor a defendant. There are no pleadings raising issues to be tried. No one is punished. No serious disability or disqualification is incurred by the findings. The enquiry made by the commission differs from a criminal trial. The commission is only a machinery set up to enquire into a definite matter of public importance and to make a report so as to enable the Government to take such action as the Government may deem fit. Therefore, there is no definite judgment in the enquiry, nor is there any usurpation of judicial functions. The Supreme Court in Ram krishna Dalmia v. S.R. Tendolkar,AIR 1958 (at P. 546 ) has observed:

'.......................the only power that hte commission has is to enquire and make a report and embody therein its recommendations. The commission has no power of adjudication in the sense of passing an order which can be enforced proprio vigore. A clear distinction must on hte authorities be drawn between a decision which by itself has no force and no penal effect and a decision which becomes enforceable immediately or which may become enforceable by some action being taken. Therefore as the commission we are concerned with is merely to investigate and record its findings and recommendations without having any power to enforce them the inquiry or report cannot be looked upon as a judicial inquiry in the sense of its being an exercise of judicial function properly so called and consequently the question of usurpation by parliament or the Government of the powers of the judicial organs of the Union of India cannot arise on the facts of this case.........'

8. Again the Supreme Court in P. V. Jagannath Rao v. State of Orissa, : [1968]3SCR789 , dealing with the question whether the appointment of commission of Inquiry under commissions of Inquiry Act, during the pendency of civil litigation would amount to contempt of Court, held (at p. 226):-

'The inquiry cannot be looked upon as a judicial inquiry and the order ultimately passed cannot be enforced proprio vigore. The inquiry and the investigation by the commission do not therefore amount to usurpation of the function of the courts of law. The scope of the trial by the courts of law and the commission of Inquiry is altogether different.'

9. Therefore,the grievance of the petitioner that the commission is going to inquire and decide questions of title of immovable property is wholly unfounded.

10. Before embarking on a consideration of the question relating to the propriety of the procedure adopted by the commissionone other submissionof hte learned counsel relating to the legality of the privilege claimed on behlaf of the Government and upheld by the commission under sections 123 and 124 of the Evidence Act by the order dated 7-7-82 in respect of certain documents requested for inspection by the petitioner, may be considered.

11. It is true that the privilege claimed on behalf of the Revenue Department in respect of four documents was upheld by the commission in its order dated 7-7-82. The commission opined that the disclosure of those documents is against public interest. The learned counsel submits that the commission decided the matter in a mechanical way without scrutinising the true nature of the documents . the rejection of the request of the petitioner to inspect those documents argues the counsel, will result in the denial of a reasonable opportunity of being heard to the petitioner. The learned advocate General has stated before us from the Bar that the privilege claimed has been waived and the petitioner will be permitted to peruse the said documents also and make copies thereof. Therefore it is unnecessary to go into the question of legality of the claim of privilege.

12. Then there remains the really complex and vexed question whether the procedure to the principles of natural justice. The learned counsel for the petitioner argues that on a proper construction of the provisions of secs. 8B and 8C of the Act and the rules made thereunder, the right procedure to be adopted by the commission is to make the persons who have given affidavit evidence available for cross-examination by the petitioner and the rejection of such request is contrary to the provisions of the Act and the fundamental principles of natural justice applicable to quasi judicial inquiries. It is therefore, necessary to read the provisions of the Act relating to the procedure to be followed by the commission:

'Section 8: procedure to be followed by the commission:- The commission shall, subject to any rules that may be made in this behalf have power to regulate its own procedure (including the fixing of places and times of its sitting and deciding whether to sit in public or in private).

8-A. ....................

8B: persons likely to be prejudicially affected to be heard. If at any stage of inquiry, the commission:-

(a) considers it necessary to inquire into the conduct of any person; or

(b) is of opinion that the reputation of any person is likely to be prejudicially affected by the inquiry.

The commission shall given to that person a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence;

Provided that nothing in this section shall apply where the credit of a witness is being impeached.

8C. Right of cross-examination and representation by legal practitioner: The appropriate Government every person referred to in section 8(b) and, with the permission of the commission, any other person whose evidence is recorded by the commission.

(a) may cross-examine a witness other than a witness produced by it or him;

(b) may address the commission: and

(c) may be represented before the commission by a legal practitioner or with the permission of the commission by any other person.'

13. Rules 4 and 5 of the central commissions of Inquiry (procedure) Rules, 1960 reads as follows.

'4. If at any stage of the inquiry the commission:-

(a) considers it necessary to inquire into the conduct of any person or

(b) is of the opinion that the reputation of any person is likely to be prejudically affected by the inquiry.

The commission shall give to that person a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence.

5. The central Government every person referred to in Rule 4 and with the permission of the commission any other person whose evidence is recorded under Rule 3:

(a) may cross-examine a witness other than witness produced by it or him;

(b) may address the Court; and

(c) may be represented before the commission by a legal practitioner or with the consent of the commission. By any other person.'

14. Now the relevant Rules of the Andhra pradesh commissions of inquiry rules may be looked into-

Rule 5. Recording of evidence: (1) The commission shall examine all the statements furnished to it under Rule 4 and if, after such examination the commission considers it necessary to record evidence, it shall first record the evidence if any. Produced by the state Government and may thereafter record in such order as it may deem fit:

(a) the evidence of any person who has furnished a statement under Rule 4 and whose evidence the commission having regard to the statement considers relevant for the purpose of the inquiry.

(b) the evidence of any other person whose evidence, in the opinion of the commission, is relevant to the inquiry:

Provided that the commission may dispense with the attendance of any person for the purpose of giving evidence before it, if in its opinion-

(i) such attendance cannot be enforced except without causing undue hardship or inconvenience to that person; or

(ii) such attendance should be dispensed with for any other sufficient reason to be recorded by it in writing.

(2) & (3) xx xx xx xx 6. Persons likely to be prejudicially affected to be heard:-

If, at any stage of the inquiry the commission:

(a) considers it necessary to inquire into the conduct of any person; or

(b) is of the opinion that the reputation of any person is likely to be prejudicially affected by the inquiry, the commission shall give to that person an opportunity of being heard in the inquiry and to produce evidence in his evidence.

7. Right of cross-examination and representation by legal practitioner: the state Government , every person referred to in Rule 6 and with the permission of the commission, any other person whose evidence is recorded under Rule 5-

(a) may cross-examine a witness other than a witness produced by it or him;

(b) may address the Court; and

(c) may be represented before the commission by a legal practitioner or with the consent of the commission by any other person'.

15. It may at once be seen that the provisions of Rr. 4 and 5 of the central commissions of Inquiry Rules 1960 as well as those of Rr. 6 and 7 of the Andhra pradesh commissions of Inquiry Rules are identical to Ss. 8B and 8C of the Act. Unless S. 8 of the Act, the commission is entitled to regulate its own procedures subject to any rules that may be made in that behalf Under S. 8B of the Act reasonable opportunity of being heard in the inquiry is required to be given to every person whose conduct the commission considers it necessary to inquire into and whose reputation in the opinion of the commission, is likely to be prejudicially affected by the inquiry.

On a scrutiny of the several statements, affidavits and reports received in response to the notices and notification issued under Rule 4 (1) (a) (b) of the Rules, the commission was of the opinion that the reputation of the petitioner was likely to be prejudicially affected by the allegations made in the said affidavits and reports. Therefore the commission issued the three impugned notices under S. 8(b) of the Act affording an opportunity of being heard to the petitioner in his defence and requiring the petitioner to produce the necessary material in the form of affidavits accompanied by authenticated documents touching the matters raised in the affidavits and the report of the collector and the joint collector. Hyderabad District.

16. The learned counsel Sri Gururaja Rao, however, submits that a reasonable opportunity of being heard envisages communication of clear, precise and unambiguous charge and includes an indefeasible rights to have persons who have given evidence against hte person on affidavit summoned, for the purpose of cross-examination. According to the learned counsel any opinion formed by the commission can only be on legal evidence and the evidence which is not subject to cross-examination is no legal evidence as it is vitiated by the breach of natural Justice.

17. The learned counsel placed reliance in support of his submission on the texts on Administrative Law and Judicial precedents. S.A. De. Smith in his standard well-known work 'Judicial review of Administrative Action' (3rd Edition) says at page 177 under the heading 'Form of hearing':

'It must be pointed out, however that when the words 'hearing' or 'opportunity to be heard' are used in legislation, they nearly always denote a hearing at which oral submissions and evidence may be tendered. In some legislative contexts the term 'hearing' is used in contrast to 'inquiry': in practice a hearing may be held in private though members of the general public are not necessarily excluded; the conduct of both hearings and inquiries in town planning matters is oral and is now governed by similar procedural rules.

In the absence of clear statutory guidance on the matter, one who is entitled to the protection of the audi alteram parterm rule is now prima facie entitled to put his case orally but in a number of contexts the courts have held natural justice to have been satisfied by an opportunity to make written representations to the deciding body and there are still many situations where a person will be able to present his case adequately in this way'.

18. Reference is also made to a passage occurring at page 188 wherein it is stated:

'Refusal to permit cross-examinations of witnesses at an administrative hearing will usually be a denial of natural justice'.

But the author again at page 189 said:

'Again, deprivation of the opportunity to test evidence by cross-examination is not a violation of natural justice if the tribunal can and does decide merely on the strength of an inspection or oral or written submissions supplemented by its own local or specialised knowledge or if the proceedings before an investigating body are only for the purpose of collecting information.....'

19. In this case there can be no dispute that the commission is only an investigating body; it collects information and sends up the report to the Government and helps the Government to form its opinion.

20. In Halsbury's laws of England, IV Edition, under the heading Evidence on Affidavit'; the following passage occurs at page 215;

'A deponent may be ordered to attend for cross-examination on his affidavit before a Judge master or examiner of the Court, and the Court may refuse to Act on an affidavit where the deponent cannot be cross-examined'.

21. There the author was dealing with the proceedings in a Court and not before any commission of Inquiry.

22. The learned counsel then relied on the decision of the Supreme Court in the state of Punjab v. Dewan Chuni lal, : [1970]3SCR694 wherein it was held that refusal of the right to cross-examine the witnesses who have made general remarks against the character of the delinquent sub-Inspector of Police, amounted to denial of a reasonable opportunity. That was a case of dismissal of a sub-Inspector of police on ht charges of inefficiency and dishonesty based on adverse reports of superior officers. In the departmental enquiry against the sub-inspector of police, charges were framed against him for inefficiency and dishonesty on the basis of adverse confidential reports of superior officers. Such officers though available were not examined during the course ofthe enquiry and the charged-officer was not given an opportunity to cross-examine them. R. 16 (24) of the punjab police Rules clearly provides for the examination of witnesses whenever possible in the presence of the charged-officer and for the cross-examination of hte witnesses.

23. In Smt. Maneka Gandhi v. Union of India. : [1978]2SCR621 the Supreme Court observed (at page 628):

'The law must, Therefore now be taken to be well settled that even in an administrative proceeding, which in volves civil consequences the doctrine of natural justice mustbe held to be applicable'.

24. Reliance was also placed on the decisions of the Supreme Court in Khandesh spinning & Weaving Millsa v. R.G.K. Sangh, AIR 1960 Supreme Court 517 and B.E. supply co. V. The workmen, : (1971)IILLJ407SC Wherein it was pointed out that no materials can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the person against whom they are sought to be used. They are cases arising under the Industrial disputes Act wherein a dispute had been referred by the state Government for adjudication by the industrial Tribunal and the industrial Tribunal had passed an award after enquiry.

25. Strong reliance was placed on the decision of the Supreme Court in state of kerala v. K.T. Shaduli Grocery Dealer, : AIR1977SC1627 Wherein the question whether opportunity of being heard includes the right to cross-examine a witness, under S. 17 (3) of the kerala General sales Tax Act, fell for consideration Bhagwati, J. Speaking for the Court observed (at Pp. 1629-30 of AiR):

'Once of the rules which constitutes a part of the principles of natural justice is the rule of audi alteram partem which requires that no man should be condemned unheard. It is indeed a requirement of the duty to Act fairly which lies on all quasi-judicial authorities and this duty has been extended also to the authorities holding administrative enquiries involving civil consequences or affecting rights of parties because as pointed out by this Court in A.K. Kraipak. V. Union of India. : [1970]1SCR457 ' the aim of the rules of natural justice is to secure justice or to put in negatively, to prevent miscarriage of justice and justice, in a society which has accepted socialism as its Article of faith in the Constitution is dispensed not only by judicial or quasijudicial authorities but also by authorities discharging administrative functions. This rule which requires an opportunity to be heard is to be given to a person likely to be affected by a decision is also like the genus of which it is a species, not an inflexible rule having a fixed connotation. It has a variable content depending on the nature of the enquiry the frame work of the law under which it is held the Constitution of the authority holding the inquiry the nature and character of the rights affected and consequences flowing from the decision'.

26. In that case, the sales Tax officer had made a best Judgment assessment under S. 17, best-sec. (3) of the kerala General sales Tax Act, 1963 S. 17 (3) reads:

'If no return is submitted by the dealer under sub-section (1) within the prescribed period or if the return submitted by him appears to the assessing authority to be incorrect or incomplete the assessing authority shall after making such inquiry as it may consider necessary and after taking into account all relevant materials gathered by it , assess the dealer to the best of its judment:

Provided that before taking action under this sub-section the dealer shall be given a reasonable opportunity of being heard and, where a return has been submitted, to prove the correctness or completeness of such return'.

27. The assessee in that case had submitted his sales tax returns before the sales Tax Officer who on an examination of the accounts found that the returns submitted by the assessee were both incorrect and incomplete inasmuch as certain entries in the books of account of Haji P.K. usmankutty revealed certain transactions which were not accounted for in the assessee's books of account. The sales Tax Officer, after hearing the assessee, made an assessment to the best of his judgment under S. 17 (3) of the Act read with R. 15 made under the Act. When the assessee sought an opportunity to cross-examine haji Usmankutty with respect tot he correctness of his accounts which were relied upon by the sales Tax officer the sales Tax Officer refused the request of the assessee. Therefore the question that arose was whether the opportunity of being heard under S. 17 (3) of the Act would include within its sweep the right of cross-examination of a third party whose accounts were the basis of the best Judgment assessment made by the sales Tax. Officer. The Supreme Court construing S. 17 (3) of the Act held:

'.........the inescapable conclusion would be that the assessee has been given a statutory right to prove the correctness of his return by showing that the matterials on the basis of which his return is found to be incorrect or incomplete are wrong and if for this purpose the assessee makes an express prayer for cross-examining the wholesale dealers whose accounts formed the sheet-anchor of the notice issued to the assessee he is undoubtedly entitled to cross-examine such wholesale dealers. In view of the language in which the Rules are couched it seems to us that a determinative issuearises in this case the department taking the stand that the returns filed by the assessees are incorrect and incomplete, whereas the assessees contend that their returns are correct and that the accounts of the wholesale dealers which formed the basis of the information of the sales Tax authorities were wrong and incorrect and such an issue can only be determined after examination of the accounts of both the parties and after affording the assessee the rights to cross examine the wholesale dealers concerned, particularly when the assessee makes a specific prayer to this effect.'

28. But this is a case of inquiry under the commissions of Inquiry Act. The commission is purely a fact finding body and it performs no judicial or quasi-judicial functions. There is no lis to be decided. The decision does not prejudically affect rights. Therefore, the use of the accolade judicial or quasi-judicial to such inquiries is inappropriate.

29. Natural justice is really nothing more than fair play in action. But rules of fair play differ from Court to Court they certainly do differ in their applicability to different legislative and factual situations, the fundamental rule, to put it in a simple form is that the citizen should be entitled to a 'hearing' free of bias before any decision, which will prejudicially affect his right, is taken. This rule of fairness does not mean that a citizen should in all circumstances, be entitled to a traditional, elaborate, time-consuming process of a trial in a law Court; but merely that he should be afforded an opportunity to present his version of the issue in a manner appropriate to the particular exercise of power.

30. The idea of natural justice is by no means modern. It has an impressive ancestry. Prof De smith pointed out in his standard work 'Judicial Review of Administrative Action', Fourth edition, at pages 157 and 158:

'That no man is to be judged unheard was a precept known to the Greeks, inscribed in ancient times upon images in places where justice was administered, proclaimed in seneca's medes, enshrined in the scriptures, mentioned by st. Augustine, embodied in Germanic as well as African proverbs ascribed in the year books to the law of nature asserted by coke to be a principle of divine justice, and traced by an eighteenthcentury judge to the events in the Garden of Eden.

31. In modern times and especially during the past two decades the precept has been invoked and applied by bold administrators as well as quasi-judicial bodies to a provess of fair decision making. But the sweep of the precept should not be allowed to frustrate prompt action.

32. One of us (chennakesav Reddi, J.) dealing with the scope of the expression 'reasonable opportunity of being heard' employed in S. 6B of the Essential commodities Act, observed in Dharani Trading company v. State of A.P., (1974) 2 APLJ 166.

'The procedure prescribed under section 6-B of the Act is based upon expediency and policy necessitating speedy and prompt action. If the authorities under the Act were to go in for the traditional, elaborate and time -consuming process of trial in a law Court, the very purpose of the object to take ready and immediate action either to quell some prejudicial activity or to palliate some measure economic or otherwise would be frustrated..........the rules of natural justice vary with the varying Constitution of statutory bodies and the rules prescribed by the Act under which they function and the question whether or not rules of natural justice had been contravened, should be decided not under any preconceived notions but in the light of the statutory rules and provisions'.

After referring to the several decisions on the question, the following propositions were enunciated:-

'1. The scope and extent of reasonable opportunity must be judged in the light of the Constitution of the statutory body which has to function in accordance with the rules laid down by the legislature;

2. Whether an opportunity has been afforded and whether that opportunity was or was not reasonable in a given case should be ascertained by the Court on encyclopaedic view of all the material in the case;

3. In every case the minimum requirement of hearing must be satisfied and there must be a fair and honest determination of the question.

4. The test for the minimum requirement is satisfied if the person concerned was given proper opportunity of making a representation or statement that would dissipate the suspicion of the authority competent to take action; and

5. Whether the representation dispelled or confirmed, the suspicion was of no consequence.

33. Again, the Supreme Court in state of Karnataka v. Union of India, : [1978]2SCR1 on a critical scrutiny of the provisions of the commissions of Inquiry Act, 1952 observed at page 699 (of SCC) : (at pp. 137-38 of AIR):

'it is clear from the provisions and the general scheme of the Act that a commission of Inquiry appointed under the Act is a purely fact-finding body which has no power to pronounce a binding or definitive judgment. It has to collect facts through the evidence led before it and on a consideration thereof it is required to submit its report which the appointing authority may or may not accept. There are sensitive matters of public importance which, if left to the normal investigational agencies can create needless controversies and generate an atmosphere of suspicion the larger interests of the community require that such matters should be inquired into by high-powered commissions consisting of persons whose findings can command the confidence of the people.............................. it is only be establishing the truth that the purity and integrity of public life can be preserved and that is the object which the commissions of Inquiry Act seeks to achieve'.

It is no doubt observed at page 742 (of SCC) : (at p. 171 of AIR).

'Reading the Act as whole the commission is given wide powers of inquiry compelling the attendance of witnesses and persons who are likely to be prejudicially affected giving them a right of cross-examination when a report is submitted by the commission, sec, 3 (4) contemplates action to be taken by the appropriate Government'.

As observed by the Supreme Court a witness may be compelled to attend the inquiry. To compel or not is purely vested in the discretion of hte commission. If a witness is not compelled to attend and is allowed by the commission to give affidavit evidence then the question of right to cross-examine him by the person prejudically affected cannot arise under S. 8-B of the Act. He is also entitled to an apportunity to give affidavit evidence.

34. The Supreme Court in Brajnandan Sinha v. Jyoti narain, : 1956CriLJ156 , dealing with the powers of a commission appointed under the public servants (Inquiries) Act ( 37 of 1959). Observe:

'As the commissioner has to form his opinion upon legal evidence he has been given the power to summon witnesses, administer oath to them and also compelproduction of relevant documents. These may be some of the trapping of a judicial tribunal but they cannot make the proceeding anything more than a mere fact finding enquiry ..... at the close of the enquiry, the commission has to submit a report to the Government regarding his finding on each one of the charges made. This is a mere expression of opinion and it lacks both finality and authoritativeness which are the essential tests of a judicial pronouncement. The opinion is not even binding on the Government.

We are unable to appreciate how this decision renders any support to the contention of the learned counsel.

35. Support was sought to be gathered from the decision in Re. W.L.W., (1972) 2 All ER 433, Wherein Goff. J., of the chancery Court allowed cross-examination by the parties of lord chancellor's visitor whose report was in conflict with the affidavit evidence given by another medical practitioner in support of the application filed by a mental patient for discharge of receiver and restoration to the management of own affairs. This does deal with the proceedings in a Court which adjudicates finally on the matter and not a mere investigating body.

36. In S.K. Segar v. P.G. Karnik, : AIR1973Bom171 , the question again was to who should lead the evidence first before the commission appointed to inquire into the incidents of violence leading to firing by the police. The main question was whether the firing was justified or whether it was excessive. Therefore, the question of right of cross-examination by the person prejudicially affected did not arise in that case.

37. It is then submitted that the commission of Inquiry is a quasi-judicial body and therefore, the general right of cross-examination of witnesses accrues to the petitioner. Therefore refusal to permit to cross-examine the witness will amount to denial of reasonable opportunity. Reference is made to a passage contained in the foreword by Mr. Justice krishna Iyer, to the commissions of Inquiry Act, 1952 by K.A. Ramasubramaniam. At page (vi) the learned Judge observed:

'We in this country, currently live in an era of commissions and have accumulated sufficient experience of the utility and futility the processual failing and political fall-outs and a host of other facets of these quasi-judicial though purely recommendatory operations. The time is ripe for a social functional audit of the Act in depth with the critical yet constructive purpose of modifying its structure and restyling its engineering so that the statute may be able to fill the bill'.

Again the learned Judge said at page 8.

'These commissions, more or less function as a Court of law statements of person are recorded either by an affidavit or viva voce and in any case under oath. There is a public hearing appearing on behalf of all those concerned, including witnesses. Affected parties whose reputation is likely to be prejudicially affected are given an opportunity to be heard to cross examine the witnesses appearing against them and to adduce evidence in their defence, by and large, the Rules of the Evidence Act are followed. It is clothed with the essential powers of a Court of law and is always presided over by a high judicial dignitary'.

But again the learned Judge said at page (ix):-

'...........Yet, the pronouncements of this commission are not binding on any one. It is most essential there should be written into the Act, and perhaps even in the Representation of the people's Act that a person whose conduct has been adversely reported upon by a commission of enquiry should suffer some legal disqualification. He should be debarred from holding any elective office or contesting any election for a period and, if he is a civil servant, it should automatically spell his removal from public service. Otherwise these commissions become an expensive luxury ending in futility. If the object is to ultimately cleanse public life and cleanse the Augean stables, they should be invested with some sanctions'.

38. Mr. Krishna Iyer. Therefore deeply regrets that the reports of the commissions are not binding on any one.

39. The Delhi High Court in P.R. Nayak v. Union of India, ILR (1973) 1 Delhi 747 also held that the proceedings before the commissions of Inquiry Act, 1952 were quasi-judicial in nature.

40. The question whether a person prejudicially affected gets a right to cross-examine the witnesses who have not been summoned and who have given affidavit evidence, did not arise.

41. Quasi-judicial decision equally pre-supposes as a true judicial decision the existence of a dispute between two or more parties. It involves: (I) presentation of thier cases by the parties; (ii) the ascertainment of any disputed facts by the evidence adduced by the parties; (iii) submission of arguments; and (iv) a declaration of the liabilities of the parties. In an inquiry before the commission, there is neither a dispute nor a decision which prejudicially affects any right. There is an investigation and a mere report of the facts ascertained. There is no decision therefore use of the accolade judicial or quasi-judicial to inquiries before a commission of Inquiry appointed under the commissions of Inquiry Act is inappropriate the commission is not an adjudicating body but an assisting body that assesses the facts and assists the Government in the arrival at an appropriate decision.

42. The Supreme Court in state of Karnataka v. Union of India : [1978]2SCR1 . Observed that the commission is only fictionally a civil Court for the limited purposes enumerated in s. 5(4) of the Act, that there is no accuser no accused and no specific charges for trial before the commission, not is the Government under the law, required to pronounce one way or the other on the findings of the commission. Therefore, the enquiry under the commissions of Inquiry is not quasi-judicial in nature.

43. Now let us turn to look at the domain of 'natural justice' from the other side of the spectrum. The wellknown author, S.A. de Smith in his standard text book on 'Judicial Review of Administrative Action' (III Edition) says at page 203 under the heading ' Hearing without Deciding':

'In what circumstances must the rules of natural justice be observed by persons entrusted with the conduct of an investigation but having no power to give a binding decision! This is one of the most troublesome problems in the whole of administrative law. The authorities often appear to be, and sometimes are, in conflict with one another. When one comes across a judicial formulation of general legal principle it is not infrequently misleading because the Court has in mind only a limited range of contexts in which the problem arises. Again some of the best known dicta have been uttered in cases where no allegation of breach of natural justice was made and one can never be certain that the same words would have been used if that issue had been before the Court. Nor is it always possible to assess how far the form of the proceedings has influenced the approach adopted by the Court.......'

Having said so the author observed at page 205:

'In a number of cases in which the proceedings of investigating bodies have been impugned (mainly on grounds other than non-compliance with natural justice) the courts have refused to intervence unless the investigation does or can culminate in a determination or order which has binding force or will itself acquire binding force upon confirmation or promulgation by another body or which otherwise control the decision of that other body. To put the matter in another way, an investigating body is under no duty to Act judicially if it cannot do more than recommend or advise on action which another body may take in its own name and in its own discretion......'

The law commission of India, in its 24th Report observed at page 12, after extracting Rules 4 and 5 made by the central Government under section 12 of the Act.

'We think that since these rules, embody the fundamental principles of natural justice and safeguard the rights of individuals, they should be incorporated in the Act itself'.

In pursuance of the recommendations of the law commission Rules (4) and (5) have been inserted as section 8B and 8C of the Act by clause 12 of Act 79 of 1971.

44. The very same rules of natural justice fell for consideration before the Supreme Court in state of J. & K.V. Bakshi Gulam Mohammad. : AIR1967SC122 . Section 10 of the Jammu and Kashmir commissions of Inquiry Act is in pari materia with sections 8B and 8C of the Act. The Supreme Court speaking through sarkar, C.J. observed (at pp. 131-32):-

'The next point is as to the right of cross-examination. This claim was first based on the rules of natural justice. It was said that these rules require that Bakshi Gulam Mohammad should have been given a right to cross-examine all those persons who had sworn affidavits supporting the allegations against him. We are not aware of any such rule of natural justice. No authority has been cited in support of it. Our attention was drawn to meenglas Tea Estate v. Their workmen, : (1963)IILLJ392SC . But there all that was said was that when evidence is given viva voce against a person he must have the opportunity to hear it and to put the witnesses questions in cross-examination. That is not our case. Furthermore, in meenglas Tea Estate case : (1963)IILLJ392SC , the Court was not dealing with a fact finding body as we are. Rules of natural justice require that a party whom an allegation is being inquired into should be given a hearing. Bakshi Gulam Mohammad was certainly given that. It was said that the right to the hearing included a right to cross-examine. We are unable to agree that that is so. The right must depend upon the circumstances of each case and must also depend on the statute under which the allegations are being enquired into. This Court in nagendra nath Bora v. Commr. Of Hills division, : [1958]1SCR1240 said that 'the rules of natural justice vary with the varying Constitution of statutory bodies and the rules prescribed by the Act under which they function and the question whether or not any rules of natural justice had been contravened should be decided not under any pre-conceived notions but in the light of the statutory rules and provisions.' We have to remember that we are dealing with a statute which permits a commission of Inquiry to be set up for fact-finding purposes. The report of the commission has no force proprio vigore. This aspect of the matter is important in deciding the rules of ntural justice reasonably applicable in the proceedings of the commissions of Inquiry under the Act. Then we find that section 10 to which we have earlier referred gives a right to be heard but only a restricted right of cross-examination. The later right is confined only to the witnesses called to depose against the person demanding the right. So the Act did not contemplate a right of hearing to include a right to cross-examine. It will be natural to think that the statute did not intend that in other cases a party appearing before the commission should have any further right of cross-examination. We, therefore, think that no case has been made out by Bakshi Gulam Mohammad that he rules of natural justice require that he should have a right to cross-examine all the persons who had sworn affidavits supporting the allegations made aginst him'

45. No dissent or dissatisfaction with the ratio in the ruling in Bakshi Gulam Mohammad's case (supra) has been expressed in any subsequent decisions of the Supreme Court.

46. The Supreme Court in Union of India v. J.N. Sinha : (1970)IILLJ284SC , observed (para 7):-

Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. As observed by this Court in kraipak v. Union of India, : [1970]1SCR457 , 'the aim of rules of Natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law but supplement it'.

47. In an enquiry before a commission, the procedure is governed by sections 8-B and 8-C of the Act and the Rules made by the state Government under section 12 of the Act. Only when a witness is examined viva voce before the commission the right to cross-examine that witness accrues under section 8-C to the person likely to be prejudicially affected. No such right arises when evidence is given on affidavits.

48. The Supreme Court in Chairman Board of Mining Examination v. Ramjee, : [1977]2SCR904 dealing with the meaning and scope of natural justice observed: (at p. 969)

'Natural justice is no unruly horse no lurking land mine, nor a judicial cureall. If fairnesss is shown by the decisionmaker to the man proceeded against the form features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation no breach of natural justice can be complained of Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction.

49. In Maneka Gandhi's case. : [1978]2SCR621 , Bhagwati, J., speaking for the Supreme Court observed (at p. 629).

'The audi alteram partem rule is intended to inject justice into the law and it cannot be applied to defeat the ends of justice, or to make the law 'lifeless, absurd, stultifying self-defeating or plainly contrary to the common sense of the situation.' Since the life of the law is not logic but experience and very legal proposition must in the ultimate analysis, be tested on the touchstone of pragmatic realism, the audi alteram partem rule would but the experimental test, be excluded if importing the right to be excluded if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands'.

It can thus be seen that the rules of natural justice ought not to be allowed undue expansion without regard or reference to the administrative realities or the needs for promptitude or urgency of the matter.

50. It is clear from chapter 3 of the Extract from the Report of the commission of Inquiry headed by Justice H.R. Khanna that the right to cross-examine under the Act and the Rules accrues only when a witness gives oral testimony. So also sarkaria commission of Inquiry laid down in the regulations of procedure to be followed by the commissions of Inquiry that only in case on oral evidence is recorded, cross-examination shall be allowed to all parties and persons as indicated in section 8C of the Act. A commission may, at its discretion, refuse to call any person for oral examination or cross-examination and, instead, allow him to be examined on affidavit through interrogatories delivered to him.

51. But the learned counsel for the petitioner placed reliance on the recommendations of the Royal commission on Tribunals of Inquiry 1966 Wherein the Royal commission recommended that before any person who is involved in an inquiry should have the opportunity of testing by cross-examination conducted by his own solicitor or counsel any evidence which may affect him.

52. But combined reading of se. 8 of the Act and Rule 9 of the Rules would make it abundantly clear that the commission is vested with full discretion to regulate its own proceedings in respect of any matter for which no procedure has been made in the Act or the Rules.

53. We may now sum up our conclusions:

(i) the use of the accolade judicial or quasi-judicial to inquiries under the commissions of Inquiry Act, Strictly speaking is inappropriate.

(ii) A quasi-judicial inquiry equally presupposes like a judicial inquiry the existence of a dispute between two or more parties and investigates and declares the liabilities.

(iii) Before a commission of Inquiry appointed under the Act, there is no lis between the parties and no decision prejudicially affecting the rights of parties by the commission, is given. The function of the commission is purely to investigate, assess the ascertained facts and report. That is the purpose and the end. The report of the commission is not binding on the Government.

(iv) the procedure to be followed by the commission has been laid down in sections 8B and 8C of the Act. The basic rules of natural justice have been incorporated in sections 8B and 8C of the Act and the commisssion is invested with the power to regulate its own procedure subject to the provisions of the Act and the rules made thereunder.

(v) the provisions of sections 8B and 8C of the Act do not confer the right to summon parties who have given evidence on affidavit for cross-examination . The general right to cross-examine a witness will accrue only when the evidence is recorded viva voce.

(vi) Rules of natural justice do not supplant but only supplement the law.

54. The commission in the notice issued under Rule 4 (1) of the rules directed all persons who in the opinion of the commission could furnish information relating to the 14 cases described in the Annexure to G.O. Ms. No. 208 to furnish statements relating tothe 14 cases in question accompanied by affidavits and documents. In response to the above notice and the Notification issued under Rule 4 (1) (b) of the Rules, several persons filed statemetns and affdavits along with certain documents. No person was proposed to be examined orally by the commission. Therefore, in the absence of any person being examined orally by the commission the petitioner cannot get any right under section 8B of the Act.

55. Under section 8B of the Act, as already held by the Supreme Court in Bakshi Gulam Mohammad's case : AIR1967SC122 (supra) the right of cross-examination accrues to the petitioner only if any oral evidence is recorded by the commission. In the absence of any oral examination of a witness, the petitioner gets no right to summon a witness who has given only affidavit evidence for cross-examination.

56. The learned counsel, however, invited our attention to a passage from seervai's constitutional law of India (second Edition). At page 803 of volume II, the author said:

'Assuming that the requirements of natural justice have not been expressly or impliedly waived, what is the legal effect of a decision rendered in violation of natural justice? In Ridge v. Baldwin (1964 Ac 40) it was held by a majority that the decision was void, and not merely voidable. Lord Reid and Lord Hodson held that according to the authorities, a decision rendered contrary to the principles of natural justice was void and that in wood v. Woad. (1874) LR 9 Ex. 190, it was expressly so decided'.

57. There is no question of violation of natural justice in this case. Principles of natural justice as stipulated in the statute and the Rules have been complied with by the commission.

58. Lastly a submission is made that the terms of reference to the commission are very bague and speculative in character. The reference according to the learned counsel, should confine to investigation of a definite matter. The learned counsel placed reliance on a decision of the Supreme Court in krishna Ballabh sahay v. Commission of Inquiry, : 1969CriLJ520 . The Supreme Court no doubt, observed (para 12):-

'If the charges were vague or speculative suggesting a fishing expedition we would have paused to consider whether such have paused to consider whether such an inquiry should be allowed to proceed. Aperusal of the grounds assures us that the charges are specific, and that records rather than oral testimony will be used to establish them. We agree with the High Court that the affidavit in opposition makes out a sufficient case for inquiry'.

59. Firstly the Constitution of commission itself has not been questioned in this case; and secondly we are unable to agree with the submission of the learned counsel that the reference is very vague and speculative in character. A perusal of the terms of reference clearly shows that the allegations are quite specific and the revenue records alone will be used to prove them. We, therefore see no real substance in the contention of the learned counsel.

60. Reference is also made to a decision of the Allahabad High Court in Niranjan prasad v. State, : AIR1960All323 . In that case, the learned Judge was dealing with the dismissal of a Government servant. There is a Government servant who was asked to show cause why he should not be dismissed for having accepted bribes was not supplied with particulars of any specific acts of misconduct. It was held that delinquent officer would not be deemed to have been given a reasonable opportunity of showing cause as required by Article 311(2) of the Constitution. We do not see any relevancy of that case to the facts of the present case which arises under the commissions of Inquiry Act.

61. In the upshot, the writ petition fails and it is accordingly dismissed with costs. Advocate's fee Rs. 250/-

ORAL LEAVE APPLICATION

62. Learned counsel for the petitioner makes an oral application for leave to appeal tothe Supreme Court . In our opinion no substantial question of law of general importance which requires to be considered by the Supreme Court, arises in this case. Leave sought for is therefore, refused.

63. Petition dismissed.


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