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Bhagwat Dayal Sharma Vs. the Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 1239 of 1973
Judge
Reported inILR1974Delhi847
ActsCommission of Inquiry Act, 1952 - Sections 3; Constitution of India - Article 226
AppellantBhagwat Dayal Sharma
RespondentThe Union of India and ors.
Advocates: K.R. Gupta,; P.R. Monga,; Niren De,;
Cases ReferredJulius v. Lord Bishop of Oxford
Excerpt:
.....to appoint a commission is, however, optional and discretionary, even if there is any definite matter of public importance. a commission may be appointed by the appropriate government if it is of the opinion that it is necessary so to do. this opinion is, by the words of the section, subjective. in other words, even if there is any definite matter of public importance, the appropriate government may not appoint a commission of inquirty if it is of opinion that it is not necessary so to do.; that an enquiry under the commissions of inquiry act is not a judicial inquiry and the object of constituting a commission of inquiry under the act is to enable the government to make up its mind as to what legislative or administrative measures should be adopted to eradicate the evil found or..........said act defines, inter alia, the appropriate government which means the central government or the state government as the case may be. the legislative and executive sanction to appoint commissions of inquiry is to be found in entry 94 of list i and entry 45 of list iii in the seventh schedule to the constitution. (6) the relevant part of sub-section (1) of section 3 of the said act provides:- 'theappropriate government may, if it is of opinion that it is necessary so to do, and shall, if a resolution in this behalf is passed by the house of the people or, as the case may be, the legislative assembly of the state, by notification in the official gazette, appoint a commission of inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such.....
Judgment:

S.N. Andley, C. J.

(1) This writ petition came up for admission before us on September 18, 1973 when we issued notices to the respondents to show cause as to why it be not admitted. Replies to show cause notices have been filed by some of the respondents. The question which has been urged on behalf of the respondents is that the petitioner has no locus standi to file this petition. Because the question relates to the maintainability of the writ petition, we heard it at length and reserved judgment.

(2) The petitioner is Mr. Bhagwat Dayal Sharma. He has disclosed his interest in filing this petition in paragraph 1. He has stated that he is a citizen of India, a tax-payer, a member of the Rajya Sabha (Council of States) representing the State of Haryana and a former Chief Minister of the State of Haryana. He, thereforee, states that he is 'thus vitally interested to see that powers vested in any Minister in the State are not abused for self aggrandisement and the Administration of the State runs honestly and cleanly and further that the Ministers at the Centre are not conniving with Ministers in the State to perpetrate the region of corruption, nepotism, terrorism and enrichment at the cost of the public.' The respondents to the writ petition are :(1) The Union of India, (2) Shrimati Indira Gandhi, Prime Minister of India, (3) Mr. Uma Shankar Dikshit, Minister of Home Affairs, Government of India, (4) Mr. Ram Niwas Mirdha, Minister of State in the Ministry of Home Affairs, Government of India and (5) Mr. Bansi Lal, Chief Minister of Haryana.

(3) On the allegation made in the petition it is prayed that a writ in the nature of mandamus or any other appropriate writ, direction or order to the respondents, quashing the impugned order dated December 19, 1972 (Annexure IX) and directing the Central Government to appoint a Commission of Inquiry under section 3 of the Commissions of Inquiry Act, 1952, to inquire into the charges contained in the memoranda dated October 27, 1971 and February 24, 1972 (Annexures I and II) against Mr. Bansi Lal be issued or the respondents be directed to reconsider the matter objectively and make a fresh order. It is not necessary for the purpose of determining the question of locus stand! to go in detail into the facts alleged in the petition and it will be sufficient to state that the petitioner moved the Union of India and Central Ministers to appoint a Commission of Inquiry under the sail Act to go into various 'definite matters of public importance' alleged in the petition. By letter dated December 19, 1973 (Annexure Ix to the petition Mr. Ram Niwas Mirdha (respondent No. 4) informed the petitioner that the memoranda had been examined by the Government in an objective manner on the basis of the information contained in the memoranda but no case had been made out for entrusting these allegations to a Commission of Inquiry. It was further stated that a number of allegations in the two memoranda related to purchase transactions by the Haryana State Electricity Board in respect of which its Chairman had accepted full responsibility. Feeling aggrieved by this decision, the present petition has been filed for the aforesaid reliefs.

(4) The question of locus standi is being determined by us on the assumption-without going into the validity of the allegations in that behalf-that the various matters in respect of which allegations have been made in the petition are 'definite matters of public importance' within the meaning of section 3 of the said Act. On this question, the matter has to be determined from the point of view whether the petitioner has a legal right to the relief with a corresponding duty obligation on the Government to give that relief.

(5) Prior to the coming into force of the said Act, Commissions and Committees of Inquiry were appointed by the Government by executive orders but because of certain handicaps felt in the conduct of such Commissions and Committees of Inquiry, the said Act was enacted. The statement of objects and reasons of the said Act states so. It further states that in the absence of any statutory power to enforce the attendance of witnesses and the production of documents, it was felt that there should be general law authorising Government to appoint an inquiring authority on any matter of public importance, whenever considered necessary, or when a demand to that effect is made by the Legislature and that such law should enable the inquiring authority to exercise certain specific powers including the power to summon witnesses, to take evidence on oath and to compel persons to furnish information. The preamble to the said Act also states that the Act is to provide for the appointment of Commissions of Inquiry and for vesting such Commissions with certain powers. Section 2 of the said Act defines, inter alia, the appropriate Government which means the Central Government or the State Government as the case may be. The legislative and executive sanction to appoint Commissions of Inquiry is to be found in Entry 94 of List I and Entry 45 of List Iii in the Seventh Schedule to the Constitution.

(6) The relevant part of sub-section (1) of section 3 of the said Act provides:-

'THEappropriate Government may, if it is of opinion that it is necessary so to do, and shall, if a resolution in this behalf is passed by the House of the People or, as the case may be, the Legislative Assembly of the State, by notification in the Official Gazette, appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions and within such time as may be specified in the notification, and the Commission so appointed shall make the inquiry and perform the functions accordingly'.

Sections 4 and 5 of the said Act enumerate the powers of the Commission so appointed. Section 7, inter alia, provides that the appropriate Government may, if it is of opinion that the continued existence of a Commission is unnecessary, by notification in the Official Gazette, declare that the Commission shall cease to exist from such date as may be specified in this behalf in such notification and thereupon the Commission shall cease to exist. Section 4 of the said Act clothes a Commission appointed otherwise than under section 3 of the said Act with the status of a Commission appointed under the said Act if a notification in that behalf is issued by the appropriate Government.

(7) As a matter of construction of sub-section (1) of section 3 of the said Act, the appropriate Government is under a statutory obligation to appoint a Commission of Inquiry in a case where a resolution in that behalf is passed by the 'House of the People or, as the case may be, the Legislative Assembly of the State and the appropriate Government has no option or discretion in the matter. In the absence of such a resolution, the power to appoint a Commission is optional and discretionary even it there is any definite matter of public importance. A Commission may be appointed by the appropriate Government if it is of the opinion that it is necessary so to do. This opinion is, by the words of the section, subjective. In other words, even if there is any definite matter of public importance, the appropriate Government may not appoint a Commission of Inquiry if it is of opinion that it is not necessary so to do.

(8) It has been observed by the Supreme Court in Shri Ram Kishan Dalmia v. Shri Justice S. R. Tendolkar & others : [1959]1SCR279 (1) that-

'THEonly power that the Commission has is to inquire 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..................... thereforee, 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 . . . In our view the recommendations of a Commission of Inquiry are of great importance to the Government in order to enable it to make up its mind as to what legislative or administrative measures should be adopted to eradicate the evil found or to implement the beneficial objects it has in view'.

It is, thereforee, clear that an inquiry under the said Act is not a judicial inquiry and the object of constituting a Commission of Inquiry under the Act is to enable the Government to make up its mind as to what legislative or administrative measures should be adopted to eradicate the evil found or to implement the beneficial objects it has in view. It is marely a fact finding body for the benefit of the Government and that is why even where there may be a definite matter of public importance, a Commission of Inquiry is appointed under the said Act only if it is necessary in the opinion of the appropriate Government to do so. Except in the case of a resolution by Parliament or the Legislature of a State in that behalf, there is no statutory or other obligation upon the appropriate Government to appoint a Commission of Inquiry and, thereforee, on the words of section 3 of the Act there cannot be a legal or statutory obligation upon the appropriate Government to appoint a Commission of Inquiry even if there is a definite matter of public importance. This conclusion by itself would displace the contention on behalf of the petitioner that he has a legal or statutory right to compel the appointment of a Commission of Inquiry whenever there is a definite matter of public importance.

(9) Existence of a right is the sine qua non for the issue of a writ of mandamus. In The State of Orissa and others v. Rajasaheb Chandanmull Indrakumar (P) Ltd. and another : : AIR1972SC2112 , a contention was raised on behalf of the that an application under Article 226 does not lie unless the petitioner has a legal right and the Court does not assist the petitioner to continue to do acts forbidden by law. This argument was accepted by the Supreme Court and the matter was remanded to the High Court for re-adjudication on the question whether the respondent-company had any right in the colliery in question. Relying upon the observation of Bruce. J. in R. V. Lewisham Union (1897) 1 Q.B. 498 that,-

'THISCourt has never exercised a general power to enforce the performance of their statutory duties by public bodies on the application of anybody who chooses to apply for a mandamus. It has always required that the applicant for a mandamus should have a legal and specific right to enforce the performance of those duties'.

(10) The Supreme Court observed in Praga Tools Corporation and others v. Shri C. A. Imanual and others: : (1969)IILLJ479SC , that the condition precedent to the issue of mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought. In State of Orissa v. Ram Chandra Dev: : AIR1964SC685 , it was held that though the jurisdiction of the High Court under Article 226 is wide in that sense, the concluding words of the Article clearly indicate that before a writ or an appropriate order can be issued in favor of a party, it must be established that the party has a right and the said right is illegally invaded or threatened and that the existence of a right is the foundation of a petition under Article 226. In Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College (1962) Supp. 2 S.C.R. 144 (5) again it was observed that in order that a mandamus may issue to compel the respondents to do something, it must be shown that the statute imposed a legal duty and the petitioner has a legal right under the statutes to enforce its performance. The cases cited by the petitioner on this aspect of the matter do not assist him. The case reported in G. D. Karkara v. T. L. Shevde and others Air 1952 Nag 330 (6) was a case relating to a writ of quo warranto Nalanda College (1962) Supp. 2 S.C.R. 144 (5) again it was such a writ. This was so observed by the Supreme Court in Calcutta Gas Company (Proprietary) Ltd. v. C -tate of West Bengal and others : : AIR1962SC1044 , where while dealing with the power conferred upon the High Court under Article 226 it was observed that it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right and that the existence of the right is the foundation of the exercise of jurisdiction of the Court under Article 226 of the Constitution. It was further observed that the right that can be enforced under Article 226 shall ordinarily be the personal or individual right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified. The case in Dr. P. S. Venkataswamy Setty v. University of Mysore and others Air 1964 Mys 159 (8) has no application in so far as the particular question we are dealing with is concerned because the Mysore High Court merely observed that the power or jurisdiction of the High Court to issue writs under Article 226 is not restricted to the power to issue writs of the type enumerated therein. The question whether a writ of mandamus can be issued at the instance of a party who cannot claim any legal right arising under the statute in question is not examined in this case. Similarly, the Full Bench decision of this Court in Flying Officer S. Sundarajan v. Union of India and others: : AIR1970Delhi29 , cannot help the petitioner because it was only observed that a petition for a writ of habeas corpus can be moved by a person other than the person whose liberty has been curtailed. Padfield's case (1968) 1 All ER 694 (10) which was relied upon by the petitioner does not appear to us to support the petitioner's contention. In that case the complainants, members of the south east regional committee of the Milk Marketing Board, made a complaint to the Minister of Agriculture, Fisheries and Food, pursuant to section 19(3)(b) of the Agricultural Marketing Act, 195,8, asking that their complaint be referred to the committee of investigation established under that enactment. The complaint was that the board's terms and prices for the sale of milk to the board did not take fully into account variations between producers and the cost of bringing milk to liquid market and that, in effect, the price differential worked unfairly against the producers in the popular south east region where milk was more valuable, the cost of transport was less and the price of land was higher. The Minister declined to refer the matter to the Committee as he did not consider the question suitable for such investigation and he gave grounds thereforee. The House of Lords found that the Minister had proceeded upon a misconstruction of the statute. The case was remitted to the Queen's Bench Division with a direction to require the Minister to consider the complaint of the appellants according to law. . Clearly, in this case the complainants were interested in the price-structure of the milk. What is more section 19(3) (b) contemplated the making of a complaint to the Minister by the consumers' committee. Reference may in this connection be made to the observation of Lord Cairns in Julius v. Lord Bishop of Oxford (1880) 5 AC 214 (11) 'that where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised'. We do not find any persons having been specifically pointed out in the said Act who are entitled to call for the exercise of the power under section 3.

(11) All that the petitioner has stated is that he is a citizen, a taxpayer, a member of the Rajya Sabha and a former Chief Minister of the State of Haryana. In essence his status is no better than of a member of the public. Council for the petitioner has used, during his arguments, high sounding words and phrases relating to democracy, integrity, corruption, nepotism, terrorism, enrichment at the cost of the public and the spirit of the Construction to urge that every citizen has a right to see that those in power are not corrupt. These expressions may be used on and from other platforms but they are not relevant in a Court of law which is concerned with rights and obligations arising out of the Constitution and the laws. The petitioner has clearly no right under the statute, namely, the said Act and, thereforee, no locus standi to move this petition for a writ of mandamus.

(12) We, thereforee, dismiss this writ petition in liming but in the circumstances of the case we make no order as to costs.


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