B.J. Divan, C.J.
1. In this case the petitioners challenge the validity of a notification issued by the Government of Gujarat under Section 7 of the Commissions of Inquiry Act, 1952 (herein-after refened to as the Act), discontinuing the Commission which the State Government had appointed on September 9, 1979 under Section 3 of the Act.
2. It may be pointed out that the notification under Section 7 was issued on March 17, 1981 but the petition was filed on the same day earlier on 17th March 1981. The petition was filed on the basis that the Government was about to issue the said notification under Section 7 and in the petition as originally framed, the prayer was to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, direction or order permanently restraining the respondents, their agents and servants from winding up or obstructing or interfering with the proceedings of the Commission. Prayer (B) was to quash and declaretde notification or order, if issued, regarding winding up of the Commission. Prayer (C) was for interim relief pending admission. Prayer (CC) and prayers (CCC) and (CCCC) were all for interim relief. Prayer (E) is the usual prayer seeking other and further reliefs as the nature of the case may require.
3. The first petitioner is the Consumer Education & Research Centre (hereinafter referred for brevity sake as C.E.R.C.). It is a public trust registered under the Bombay Public Trusts Act, 1950. The second petitioner is the executive trustee of the C.E.R.C. and the third petitioner is the joint executive trustee of the C.E.R.C. and the fourth petitioner is also one of the trustees of the first petitioner centre. The first respondent is the State of Gujarat. The Second respondent is the Machhu II Dam Inquiry Commission set up by the State Government on September 10, 1979 under Section 3 of the Act. Respondents 3, 4, 5 and 7 are some of the farmers and cultivators in the vicinity of Morvi Town and they are supporting the action of the Government in discontinuing the Commission by issuing the impugned notification under Section 7 of the Act. Names of Respondents No. 6 and 8 have been deleted. Respondents 9 and 10 are the Morvi Chamber of Commerce and Morvi Bar Association who have been joined as party-respondents on their application and respondents 9 and 10 are supporting the case of petitioners. It may be pointed out that the C.E.R.C. has filed this petition as a public interest litigation as it has now come to be known and it seeks to vindicate the rights of the ordinary citizens and as a protection to the general public of Morvi, etc.
4. The broad facts leading to this special civil application are as follows: On August 11, 1979 an unprecedented tragedy occurred in Rajkot District of the State when Machhu Dam-II near Morvi collapsed, at least so far as the portion of the earthen dam was concerned, and the consequential flood after the dam burst resulted in a huge loss of human life and property. The darn burst at about 14. 00 hours on August 11, 1979 and even according to official estimates, more then 1800 human lives were lost and damage to property of different individuals and different organisations came to rupees one hundred crores approximately. The Government learnt about the disaster at about 12. 00 noon on August 12, 1979 and it came to its knowledge as a result of a telegram received by the Government from the Superintendnig Engineer, Rajkot Irrigation Project. On August 13, 1979 press reports about the disaster were published. On 14th August 1979 there was a demand by the then Leader of the Opposition in the State Legislative Assembly Mr. Madhavsinh Solanki, who at present is the Chief Minister of the State of Gujarat, since June 19, 1980. The demand was for an independent judicial inquiry at the level of a High Court Judge to find out the true causes and facts about the disaster and to prevent such calamities in future. According to the statement issued by then Leader of the Opposition, it was a man-made calamity. On August 14, 1979, the then Chief Minister announced a probe through a Commission headed by a High Court Judge so far as this disaster was concerned. The demands for inquiry by an independent judicial body were voiced by other leaders like Shri Vallabhbhai Patel and Shri Chimanbhai Patel. On September 10, 1979 the notification bearing No. GK-79-28-1079 (ii) - D was issued under Section 3 of the Act and Clause (a) of Rule 6-A of the Gujarat Commissions of Inquiry (Procedure) Rules, 1979. The recitals in the notification of September 10, 1979 were as follows:
Whereas a serious disaster has occurred resulting in considerable loss of life and property, on the 11th August, 1979 due to failure of Machbu-2 Dam near Morvi Town in the Morvi Taluka of the Rajkot District:
And Whereas, the Government of Gujarat is of the opinion that it is necessary to appoint a Commission of Inquiry for the purpose of inquiring into the aforesaid disaster, which is a matter of definite public importance:
Now, Therefore, in exercise of the powers conferred by Section 3 of the Commissions of Inquiry Act, 1952 (60 of 1952) and by Clause (a) of Rule 6A of the Gujarat Commissions of Inquiry (Procedure; Rules, 1969, the Government of Gujarat hereby-
(1) appoints a Commission of Inquiry consisting of Justice Shri B.K. Mehta, Judge of the High Court of Gujarat, Ahmedabad to inquire into the said matter, and
(i) Shri Y.K. Murty, Retired Chairman, Central Water and Power Commission, New Delhi ; and
(ii) Dr. Ravi Matthei, Ex-Director, Indian Institute of Management, Ahmedabad. to be the assessors to assist and advise the Commission of Inquiry.
2. The terms of reference to the Commission shall be as follows, namely:
(a) the causes of the failure of Machhu-2 Dam on 11th August 1979 and the circumstances in which such failure occurred, in particular with reference to the conception, construction, design and maintenance of the Dam.
(b) the adequacy of the action taken by the various authorities, till the flood waters from the dam entered the affected areas, to avert the disaster and to mitigate the consequences thereof, and
(c) the recommendations in this regard for future guidance.
Under Clause 3 of the notification, the Commission was to complete the inquiry and submit its report to the State Government within six monthe from the date of the notification. Under Clause 4 of the notification, all provisions of Sub-sections (2) to (5) of Section 5 of the Act were made applicable to this particular Commission, and this was done in exercise of the powers conferred by Sub-section (1) of Section 5 of the Act applying all the provisions of Sub-sections (2) to (5) of Section 5 to the said Commission. On October 9, 1979 a notification was issued by the Commission inviting statements of facts and opinions from all concerned and the invitation was to all individuals including officers of the Government, public authority acquainted with the subject matter of the inquiry before the Commission and wishing to give expert or other evidence. The statements of facts and opinions which these persons wished to give relating to the subject matter of the inquiry were to be furnished on or before November 9, 1979. In consequence of this notification, nearly 146 affidavits have been filed by members of the public. The Government of Gujarat did not file the statements of facts and opinions before the due date but, on October 29, 1979 CMP 1 of 1979 was filed by the Government requesting for extension of time for filing the statement of facts and opinions on behalf of the Government as the period was to expire on November 9, 1979. On this application the Commission passed an order on October 30, 1979 extending the time for the filing of the statement of facts and opinions by the Government to November, 30, 1979. On November 27, 1979 CMP 2 of 1979 was filed on behalf of the Chief Engineer, Irrigation and it prayed for an extension of time for filing the statement of facts and opinion by eight weeks and the grounds urged in support of the application were that various aspects were required to be considered and the records spread over more then a score of years were required to be traced and collected. Moreover, the matter was of a technical nature and collection of many details involved considerable time. On this application an order was passed on November 27, 1979 by the Commission extending the time for filing the statement of facts and opinions upto January 7, 1980. On December 6, 1979 CMP 3 of 1979 was filed by the Secretary, Public Works Department, Roads & Buildings, Government of Gujarat, praying for exemption from filing the statement of facts and opinions or for an extension of time for filing the same. On this application the Commission passed an order on December 11, 1979 regarding hearing the Secretary in-charge of the department concerned and ultimately, an order was passed on January 7, 1980 extending the time for filing the statement of facts and opinions upto January 31, 1980. It may be pointed out that on December 29, 1979 CMP 6 of 1979 was filed by the Secretary, Irrigation Department praying for an extension of time for filing the statement as the concerned authorities were busy with compiling, collecting and arranging records and various files was regarding design, construction and maintenance and hence the request was made. On January 31, 1980 again the Secretary to the Irrigation Department applied by CMP 4 of 1980 and CMP 5 of 1980 praying for extension of time and the Commission granted time upto February 27, 1980. On February 5, 1980 CMP 6 of 1980 was filed by the Irrigation Department Secretary praying for extension of time upto February 29, 1980 and by the Commission's order dated February 6, 1980, time was extended upto February 21, 1980. On February 21, 1980 CMP 7 of 1980 was filed by the Government of Gujarat, Irrigation Department, praying for extension of time for filing the statement of facts and information because the State Legislative Assembly had been dissolved and time was required for obtaining Government's approval. The extension which was prayed for on this occasion was upto March 10, 1980. By an order dated February 22, 1980 the Commission extended the time upto 15th March 1980. On 4th March 1980 CMP 9 of 1980 was filed by the Irrigation Department requesting for extension of time for filing the statement of facts and information as the approval of the Government was necessary and the statement concerned several departments and after approval time would be required for printing and binding and extension of time was requested upto March 31, 1980. By the Commission's order dated March 7, 1980 time was extended upto March 31, 1980 and ultimately, the statement of facts and opinions was filed before the Commission on 31st March 1980.
5. It may be pointed out that since the Commission was appointed on 10th September 1979 and was asked to complete the inquiry and submit its report to the State Government within a period of six montha, a notification was issued on March 6, 1980 in exercise of the powers conferred by Section 3 of the Act and by this notification the Government substituted the words '12 monthe' for '6 monthe'. Thus the life of the Commission was extended upto September 9, 1980.
6. Before the statement of facts and opinions was filed on behalf of the State Government and the affidavits were filed by the members of the general public, the Commission on its own invited certain expert reports from different sources. In January 1980 the Commission sno moto and without reference to the Government appointed technical experts for obtaining reports on different technical aspects. Dr. Jagdish Narayan, Vice Chancellor, Roor M. University and Dr. H.D. Sharma also of the same University, were experts in the field of laboratory tests, soil samples, geological investigation and the assessment of the actually executed dam section in respect of its conformity with design requirement on the basis of soil properties as tested. Dr. Satish Chandra of Roorkee University was appointed as expert on hydrology investigation. Dr. I.C. Gupta of the National Hydro-power Corporation Limited, which is a Government of India concern, was appointed as an expert on gate-operation in the light of the hydrological data. Major-General I.B. Jagannathen, Ex. Managing Director, National Hydro-power Corporation Limited was appointed as an expert on the construction materials and the study of sections of construction adopted. Over and above these experts, the Commission also appointed two Commissioners, namely, Shri Rao and Shri Satish Kumar, to ascertain the data about the marks left by rubbish at the time of the disaster on August 11, 1979, so as no indicate the levels reached by the flood at different points after the dam burst. Out of these different experts, Satish Kumar and Rao who were appointed as Commissioners submitted their report on July 25, 1980 because they were appointed much later then January 1980. It may be pointed out that Rao was the Chief Engineer, Gujarat State on deputation to Gujarat Vigilance Commission and Satish Kumar was the Chief Engineer of the Rajkot Urban Development Authority. Messrs Tungbhadra Steel Works were appointed as experts to give opinion about the operability and the actual operation of the Radial Steel Gates of Machhu-2 Dam. The Reports of Major General Jagannathen, Jagdish Narayan, Messrs. Tungbhadra Steel Works and Messrs Rao and Satish Kumar and Dr. I.C. Gupta, have been received by the Commission. Out of these several reports, Dr. I.C. Gupta's report was not made available to the Government before March 17, 1981 though it was received by the Commission some time in July, 1980. The report of the hydrological investigation of Dr. Satish Chandra of Roorkela University had not been received by the Commission till March 17, 1981.
7. It may be pointed out at this stage that a lot of controversy has gone on before us as to who was responsible for the delay in the work of the Commission. The petitioners and respondents 9 and 10 who support the petitioners, contend that the Government was responsible for the delay, whereas the first respondent, the State Government, contends that delay took place and the time passed because of the opening up of the scope of the inquiry before the Commission and the vast field that was required to be covered. We will deal with this aspect of the matter later on, but it may be pointed out the the life of the Commission was extended by Government notifications dated 27th August 1980, 9th October 1980 and January 21, 1980. Over and above extending the life of the Commission, the notification of August 27, 1980 asked the Commission to first take up the inquiry and submit report on the terms of reference in sub-para (a) and (c) and that part of the inquiry relating to term (c) in so far as it related to term of reference specified in sub-paragraph (a). It may be recalled here that sub-para (a) of the terms of reference was regarding the causes of failure of Machhu Dam-2 on 11th August 1979 and the circumstances in which such failure occurred, in particular with reference to the conception, construction, design and maintenance of the dam. Clause (c) was regarding the recommendations of the Commission, inter alia, in regard to Clause (a) with regard to future guidance. So by adding up paragraph 2-A in the original notification setting up the Commission, the Commission was asked by the State Government to take up for inquiry first the aspect regarding the circumstances in which the failure of Machhu-Dam-II occurred and in particular with reference to the conception, construction, design and maintenance of the dam and its recommendations in this regard for future guidance. After the notification of August 27, 1980 the Commission heard the parties so as to expedite the matter by smoothening the procedure, and in order to see that the work of the Commission was completed and report submitted in the light of the notification on 27th August 1980 the Commission has observed in its order dated December 16, 1980:
It is for the learned Advocate General and the authorities concerned to apprise the Ministers concerned and the Chief Secretary of the State Government whether it should extend the time of the Commission because as presently appears, the Commission is not at all hopeful about completion of the inquiry and submission of its report by 9th March 1981 upto which date the State Government has extended the tenure of this Commission. The learned Advocate General however told the Commission that there will be no difficulty in extension of time.
That order was passed by the Commission on 16th December 1980 and the same is Exhibit 149 on the record of the Commission, In that order the Commission had noted that the State Government could not comply with the time schedule as fixed earlier by the Commission by the order of the Commission dated October 1, 1980. In the order dated September 5, 1980, Exhibit 107 on the record of the Commission, the Commission observed:
The learned Advocate General declared on behalf of the State Government that it would not like to proceed with the hearing in absence of Dr. Murthy and he assured the Commission that he would obtain suitable extension of the period for completing the inquiry in this behalf.
Thus, on behalf of the State Government, the learned Advocate General had assured the Commission on September 5, 1980, recorded in the order of September 5, 1980, and again on a subsequent occasion as recorded in the order dated 16th December 1980 (Exhibit 149), that time would be extended and that there would be no difficulty in extension of time to enable the Commission to complete its work.
8. It is therefore that the extensions of time were granted by the State Government by the notification dated 9th October 1980 extending the life of the Commission to March 9, 1981 and again extending the life of the Commission upto June 9, 1981 by the notification dated January, 22, 1981.
9. Going back a little, on June 7, 1980 a new Cabinet of Ministers was sworn in and the present Government, so far as political complexion is concerned, continues to be the same Government that was sworn on June 7, 1980. As pointed out by the affidavit dated May 22,1981 of B.R. Mudhrani, J. Under Secretary of Government of Gujarat, Irrigation Department, a decision was taken at the meeting of the Cabinet held on July 7. 1980, to constitute a Sub-committee comprising the Chief Minister, the Finance Minister and the Irrigation Minister. This Cabinet meeting of July 7, 1980 had been called to discuss the pros and cons of the inquiry before the Commission and it was decided that the Cabinet Sub-Committee should transact business on behalf of the Cabinet in relation to the inquiry before the Commission, The first meeting of the Sub-Committee was held on July 16, 1980. By the second meeting of the Sub-Committee held on August 19, 1980 it was decided that a fresh notification be issued to the effect that the Commission should first examine and report on the first term of reference and the third term of reference in relation to the first term of reference, so that the work of Machhu Datn-H could be immediately started. It was also decided that the notification should specify that the Commission should give its report within three monthe, and it was thereafter that the Government issued the notification dated August 27, 1980 amending the Gjvirucjent notification of September 10, 1979 as stated earlier. The proposal dated September 1, 1980 was received from the Irrigation Department for the fresh inquiry by the Commission. At the meeting of the members of the Sub-Committee, a decision was taken to extend the time for completion of the work of the inquiry till 9th March 1980. Two further meetings of the Sub -Committee were held on November 3, 1980 and January, 8, 1981. The last meeting of the Sub-Committee was held on March 9, 1981 and at that meeting a decision was taken to discontinue the Commission. This decision of the Sub-Committee was subsequently considered by the Cabinet and on March 16, 1981 the Cabinet decided to discontinue the Commission. It may be pointed out that though the affidavit does not specifically say so, Mr. S.B. Vakil, learned advocate appearing for the State Government in these proceedings before us, stated, after consulting the relevant files, that the decision to extend the life of the Commission upto 9th June 1981 was taken at the meeting of the Cabinet Sub-Committee held on January 8, 1981.
10. On March 17, 1981 a report appeared in The Times of India a newspaper published in Ahrnedabad. This was a report by a staff reporter and the date-line was Gandhinagar, March 16, 1981 and it said that the one-man Machhu Inquiry Commission to probe into the Macbhu Dam disaster in 1979 was likey to be scrapped according to highly-placed Government sources. The Newspaper report proceeded: 'According to current thinking in Madhavsinh Solanki Ministry the Commission has not served any purpose and has created many administrative and practical problems. The Governmect has not been able to take up the construction Work of the dam at the new site.' The present special civil application was filed on March 17, 1981 and after it was filed but before it could be taken up for admission before the learned Single Judge, two events happened. A statement was made by the Irrigation Minister on 17th March 1981 in the latter part of the day before the Legislative Assembly and a cyclostyled copy of the statement of the Minister was circulated to all the Members, setting out the reasoning of the Government for passing the order under Section 7 of the Act and after that statement was made, the impugned notification was issued on March 17, 1981 under Section 7 of the Act. That notification, in the second recital, states:
And whereas, the Government of Gujarat is of opinion that the continued existence of the Commission is unnecessary.
Now, therefore, in exercise of the powers conferred by Clause (a) of Sub-section (1) of Section 7 of the Commissions of Inquiry Act, 1952 (60 of 1952) and by Clause (a) of Rule 6A of the Gujarat Commissions of Inquiry (Procedure) Rules, 1969 and all other powers enabling it in that behalf, the Government of Gujarat hereby-
(a)declares that the said Commission of Inquiry shall cease to exist from 17th March, 1981: and
(b)terminates the appointment of assessors for the said Commission from 17th March, 1981.
On 18th March 1981, our learned Brother P.D. Desai, J. passed the following order when the matter came up for admission before him:
Notice returnable on 23rd March 1981. Direct service permitted. Advance notice is shown to have been served on the State Government through its Chief Secretary. There is no appearance on behalf of the Government. Ad interim relief against further implementation of the impugned notification.
Thereafter, on March 26, 1981, our learned Brother passed the following order:
The ad interim order made on March 18, 1981 to continue till further orders subject to the clarification that notwithatanding the issue of the impugned notification, the Commission shall continue, inter alia, to have seizin of its record and proceedings and to perform all incidental and ancillary functions. It shall continue to enjoy the existing facilities and to have the assistance of the existing staff for performing such functions. It shall be within its discretion to appeal in this proceeding and it required by the Court, it will render such assistance as is needed by the Court for the decision of this matter. For the said purposes, the Commission shall be entitled to incur necessary legal expenses and to avail of such legal assistance as it considers necessary and proper.
On April 13, 1981 P.D. Desai, J. passed the following order:
Rule, Ad interim relief granted on March 18, 1981 and clarified on March 26, 1981 to continue. Time table with regard to setting down the petition for final hearing to be fixed tomorrow at 2-45 p.m.
On April 15, 1981 our learned Brother P.D. Desai, J. passed the following order:
Referred to the Division Bench.
The affidavit-in-reply to be filed on or before May 4, 1981. 'The affidavit-in-rejoinder, if any, to be filed on or before May, 18, 1981. The matter to be placed for hearing on June 15, 1981. liberty to the parties to move the learned Chief Justice for fixing the matter for hearing during vacation after giving notice to the other side.
On 5th May 1981 the matter came up for orders before a Division Bench consisting of one of us (Divan, C.J.) and P.D. Desai, J. and the following order was passed:
The order dated 13th April 1981 is modified as follows:
Affidavit-in-rejoinder, if any, to be filed on or before May 13, 1981.
Affidavit-in-Sur-rejoinder, if any, to be filed on or before May 18, 1981.
Matter to be placed for bearding on May 20, 1981 before a Special Bench which would sit during the vacation.
It was in pursuance of the order dated May 5, 1981 that the present Division Bench started hearing the matter as and by way of final hearing on May 20, 1981 and thereafter the matter has proceeded from day to day barring holidays and Saturdays as the Court office is not working on Saturdays during the vacation - upto June 11, 1981.
11. By an interim order passed on 9th June 1981, we directed the Government of Gujarat as and by way of ad interim mandatory injunction to extend the life of the Commission by issuing appropriate notification under Section 3 of the Act upto June 24, 1981. That order was passed to enable us to give a full hearing to all the advocates appearing in the matter as it was indispensable in the opinion of the Court, that the life of the Commission be extended by issuance of an appropriate direction to the State Government as and by way of an ad interim interlocutory mandatary injunction. The notification was issued on June 9, 1981 as directed by us extending the life of the Commission to June 24, 1981.
12. Before proceeding further with the arguments, it is necessary at this stage to refer to the salient features of the Commissions of Inquiry Act, 1952 and the rules made by the State Government under Section 12 of the said Act and the regulations of procedure made by the Commission for the guidance of all concerned in connection with the work of the Commission. The regulations were made in pursuance of the power conferred on the Commission by the Act and the rules made by the State Government.
13. The Act is an Act to provide for appointment of Commission of Inquiry and for vesting such Commissions with certain powers. Under Section 2(a), 'appropriate Government' means, by Clause (ii), to be the State Government, in relation of a Commission appointed by it to make an inquiry into any matter relatable to any of the entries enumerated in List II or List III in the Seventh Schedule to the Constitution, and the 'Commission' means the Commission of Inquiry appointed under Section 3. Under Sub-section (1) of Section 3-
The appropriate 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 Commision 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.
The proviso to Sub-section (1) of Section 3 is not necessary for the purpose of our judgment. Under Sub-section (2) of Section 3:
The Commission may consist of one or more members appointed by the appropriate Government, and where the Commission consists of more then one member, one of them may be appointed as the Chairman thereof.
Sub-section (3) of Section 2 is not material for the purpose of this judgment. Under Sub-section (4)-
The appropriate Government shall cause to be laid before the House of the People or, as the case may be, the Legislative Assembly of the State, the report, if any, of the Commission on the inquiry made by the Commission under Sub-section (1) together with a memorandum of the action taken thereon, within a period of six months of the submission of the report by the Commission to the appropriate Government.
Under Section 4, the normal powers of the Commission appointed under the Act have been provided for and it says that the Commission shall have the powers of a Civil Court while trying a suit under the Code of Civil Procedure, 1908, in respect of the following matters, namely, (a) summoning and enforcing the attendance of any person from any part of India and examining him on oath (b) requiring the discovery and production of any document: (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any Court or office; (e) issuing commissions for the examination of witnesses or documents; and (f) any other matter which may be prescribed. Under Sub-section (1) of Section 5, power is conferred on the appropriate Government to direct that such of the powers contained in Sub-sections (2) to (5) of Section 5 as may be specified in the notification shall apply to that Commission and on the issue of such a notification, the said provisions shall apply accordingly. In the instant case, as pointed out earlier, the State Government in the notification of September 10, 1979, has made applicable all the provisions of Sub-sections (2) to (5) to this particular Commission before us. Under Sub-section (2) the Commission shall have power to require any person, subject to any privilege which may be claimed by that person under any law for the time being in force, to furnish information on such points or matters as, in the opinion of the Commission, may be useful for, or relevant TO, the subject matter of the inquiry and any person so required shall be deemed to be legally bound to furnish such information within the neaning of Section 176 and Section 177 of the Indian Penal Code. Under Sub-section (3) of Section 5-
The Commission or any officer, not below the rank of a gazetted officer, specially authorised in this behalf by the Commission may enter any building or place where the Commission has reason to believe that any books of account or other documents relating to the subject matter of the inquiry may be found, and may sieze any such books of account or documents or take extracts or copies there from subject to the provisions of Section 102 and Section 103 of the Code of Criminal Procedure, 1898, in so far as they may be applicable.
Under Sub-section (4) of Section 5-
The Commission shall be deemed to be a civil Court, and where any offence as is described in Section 175, Section 178, Section 179, Section 180 or Section 228 of the Indian Penal Code is committed in the view or presence of the Commission, the Commission may, after recording the facts constituting the offence and the statement of the accused as provided for in the Code of Criminal Procedure, 1898 forward the case to a Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case had been forwarded to him under Section 482 of the Code of Criminal Procedure, 1898.
Under Sub-section (5), any proceeding before the Commission shall be deemed to be a judicial proceeding with the meaning of Sections 193 and 228 of the Indian Penal Code. Under Section 5A, power has been conferred on the Commission to utilise the services of certain officers and investigation agencies for conducting investigation pertaining to inquiry. Under Section 8 the Commission has, subject to any rules that may be made this behalf, power to regulate its own procedure (including the fixing of places and time of its sittings and deciding whether to sit in public or in private).
14. On October 6, 1969, the State Government made rules called Gujarat Commissions of Inquiry (Procedure) Rules, 1969 and these were made in exercise of the power conferred by Section 12 of the Act. We will nave occasion to refer to these rules in detail later on when we deal with the rival contentions before us. But it may be pointed out that under Rule 6A which was inserted in 1979, it has been provided that the State Government or, with the previous approval of the State Government, a Commission may, from time to time, appoint one or more assessors to assist and advise the Commission on any matter connected with its inquiry. It shall be the duty of the assessors to assist and advise the Commission on any matter on which the Commission may consult them in the course of its Inquiry, provided that the advice tendered by the assessors shall not be binding on the Commission. The Commission shall have the power to regulate the manner in which it may consult the assessors. The State Government, or with the previous approval of the State Government, the Commission may determine the travelling allowance, daily allowance and other incidental expenses that may be paid to such assessors. Then regulations were framed by the Commission regarding the procedure etc. of the proceedings before it and these were framed in April 1980.
15. Before dealing with all these legal positions, Section 7 of the Act is the most material section and it provides in Clause (a).
The appropriate Government may, by notification in the official gazette, declare that-
(a) A commission (other then a Commission appointed in pursuance of a resoultion passed by the House of the People or, as the case may be, the Legislative Assembly of the State) shall cease to exist, if it is of opinion that the continued existence of the Commission is unnecessary.
Under Sub-section (2) of Section 7-
Every notification issued under Sub-section (1) shall specify the date from which the Commission shall cease to exist and on the issue of such notification, the Commission shall cease to exist with effect from the date specified therein.
It be pointed out that barring the State Government, no other body or individual has filed any statement of facts and opinions and 146 affidavit's filed from members of public have been filed on one aspect or the other of the inquiry before the Commission.
16. Since the State Government has chosen to give reasons for issuing the notification under Section 7 of the Act to discontinue the Commission and since that statement is part of the record before us, we will now refer to that statement. This statement will have a great deal of bearing in the light of the decisions regarding the powers of judicial review that this Court has been called upon to exercise, and hence it is better at this stage to set out the entire statement in extense. The original statement is in Gujarati. Both of us are fully conversant with that language as it is our mothertongue and we ourselves have translated that statement of the Minister from Gujarati into English. The statement is as follows.
On 11th August 1979 because of heavy rains, Machhu-2 Dam broke and in that connection, the Government appointed a Commission of Inquiry by its notifications No. GK-17-28-1079-D dated September 10, 1979. For this Judicial Commission of Inquiry, Mr. Justice B.K. Mebta, Judge of the Gujarat High Court was appointed as a single Member Commission. In order to assist him, Shri Y.K. Murti who is the retired Chairman of the Central Watef Power Commission and Dr. Ravi Mathei who is the Ex-Director of the Indian Institute of Management; were appointed as Assessors to assist the Commission. The Terms of Reference of the Commission were as follows:
(a) The causes of the failure of Machhu-2 Dam on 11th August 1979 and the circumstances in which such failure occurred, in particular with reference to the conception, construction, design and maintenance of the Dam:
(b)the adequacy of the action taken by the vicious authorities, till the flood waters from the darn entered the affected areas, to avert the disaste and to mitigate the consequences thereof : and
(c)the recommendations in this regard for future guidance.
17. By the notification dated August 27, 1980. Item (b) out of the three items above was directed by the State Government to be taken up later and hence the Commission had first to consider the matter before it in the light of Clause (a) of the Terms of Reference. The Commission was appointed initially for the period of six monthe and from time to time the term of the Commission WES extended. Ultimatelly it was extended for a period of 21 monthe from the date of inception and the term is to expire on 9th June 1981.
18. As the proceedings before the Commission were being lengthened, a Sub-committee consisting of the Hon'ble Chief Minister, Hon'ble Finance Minister and Hon'ble Irrigation Minister was appointed to inquire in detail in this connection. Meetings of this Sub-committee were held at different times and the last meeting of the Sub-committee was held at 6-00 o'clock on 9-3-81. This cabinet sub-committee examined the following details and detailed discussions and deliberations took place in that connection.
19. Uptil now, the Commission has before it reports called for by the Commission, the statements of facts and opinions filed by the State Government, affidavits of 67 officers of the State, 146 affidavits from the general public, 35 affidavits of Government Officers touching all aspects and in accordance with the demand of the Commission about 2400 files pertaining to Machhu-2 Dam have been handed over to the Commission. In addition to the above, nearly 200 additional files have been submitted to the Commission as called for by the Commission for additional information. Because of the recommendations of the assessors in connection with the construction of Machhu-2 Dam, the report of Shri Jagannathen Ex-Managing Director of National Hydro-electric Power Corporation Limited has been received. As regards the investigation and design regarding Machhu-2 Dam, the report of Shri Jagdish Narayan, Vice Chancellor of Roorki University has also been received. The report of Messrs Tungbhadra Steel Limited regarding the Gates and spill-way of Machhu-2 Dam has also been received. Regarding the point of Hydrology arising in connection with Machhu-2 Dam, reports have been called from Roorki University and National Hydro-elecric Power Corporation and they are also about to be received. The commission has called for the report from Commissioners Shri B.S. Rao and Shri Ashok Kumar regarding the recidue marks left by flood waters starting from a point above Machhu-1 Dam and upto a point below Machhu-2 Dam to indicate the height of the flood waters during the flood in question. The Commissioners' observations and notes and the entire report of the Commissioners has also been received. From the above-mentioned reports, no defect has been found in the system of the Gates or in Machhu Dam construction. Because of the intensity of the rains there was heavy floods in the river and the water of this flood overtopped the earthen dam and that is why the dam collapsed. In this manner, according to the conclusions of the different reports, the cause which has been demonstrated for the failure of the dam is purely natural.
20. Opinions of Advocates was taken as to what can be done in connection with this Commission at this stage and they have stated that the Government can take a decision under Section 7 of the Commissions of Inquiry Act, 1952 whether to continue the Commission or to discontinue the Commission.
21. Before expressing the opinion of the State Government whether the Commission should be continued or not, the Terms of Reference of the Commission and the situation that has arisen after the appointment of the Commission, should also be examined. In this context, the Terms of Reference of the notification of September 9, 1977 appointing the Commission are as follows:
(a) The causes of the failure of Machhu-2 Dam on 11th August 1979 and the circumstances in which such failure occurred, in particular with reference to the conception, construction, design and maintenance of the Dam:
(b) the adequacy of the action takes by the various authorities, till the flood waters from the dam entered the affected areas, to avert the disaster and to mitigate the consequences thereof: and
(c)the recommendations in this regard for future guidance.
22. By the notification of August 27, 1980 the Government decided that the inquiry relating to Term of Reference (b) should be taken up later on and hence the Commission had first to decide in connection with the Clause (a) of the Terms of Reference. The Commission was, in the first instance, given six monthe (wrongly stated as 7 monthe in the statement) and thereafter from time to time it has been extended to 21 months. The time limit expired on 9-6-81. This work of the Commission is likely to last a long time still.
23. Uptil now, on behalf of Government, statement of facts and information has been submitted and technical reports have been received from different individuals and are still being received. The Commission has obtained details of flood marks from the points above Machhu-1 Dam upto points below Machhu-2 Dam by appointing Commissioners in that behalf. The conclusion drawn from the different reports so far received by the Commission is that because very heavy rain, water overtopped and ran over the earthen embankment of Machhu-2 Dam. This matter has been proved by the flood marks noted in the report of the Commissioners. The reports of the technical experts have shown that no defect whatsoever has been found in the construction of the Dam, in the Gates of the Dam or in the design of the Dam.
23A. The construction of Machhu-2 Dam has been delayed for want of report of the Commission and because of this reason, 18000 acres of land in the command area of Machhu-2 Dam remain deprived of irriga-tion. Moreover, drinking water for Morvi Town was being supplied from Macbhu-2 Dam. The supply of drinking water to villages like Malia and other villages below Morvi and drinking water to be supplied to Kandla in Kachahh District, have all to be stopped because of want of Machhu-2 Dam. Moveover, because of the continuance of the Commission, Machhu-2 Dam work cannot be taken up and 18000 acres of land in the area of Machhu-2 Dam remain without irrigation. Moreover, in these lands for want of water salinity from beneath the land has started coming up and soil has become saline. Drinking water which was being supplied to Morvi Town from Machhu-2 Dam has been stopped because there is no Machhu-2 Dam and, in the alternative to Machhu-2 Dam, drinking water is being supplied to Morvi from Machhu-1 Dam and hence the established irrigation potentiality of Macbhu-i Dam has in fact been considerably reduced in practice. Moreover, drinking water was going to be provided to Malia and a large number of other villages below Machhu-2 Dam and most of the preparations for supplying water to Malia and those other villages were in progress but water for those purposes has also not become available and until Macbhu-2 Dam is constructed, these areas of Malia and other villages cannot get drinking water.
24. Approximately rupees forty lacs have been spent in connection with Machhu-2 Dam inquiry and the figure of total expenses is likely to reach to rupees one crore. In this situation, instead of making this question a prestige issue, the Commission should be discontinued with immediate effect. Most of the Members of the Legislative Assembly have put forward a demand on these lines and they have given expression to this feeling on the floor of the Legislative Assembly.
25. It has become clear from the reports of the experts so far received that there was no defect whatsoever in the construction and there was no defect whatsoever in the Gate. The dam collapsed because of the water of heavy rain-fall passing over the earthen embankment of the dam.
26. Government has decided to discontinue the Judicial Commission with immediate effect and after the discontinuance of the Judicial Commission, as regards issue No. 1 and issue No. 3 in so far as it is in connection with issue No. 1, they are referred to the Commission by a notification and this was part of the inquiry pending before the Commission. On the same lines in connection with issue No. 1 and the consequential issue No. 3 insofar as it relates to issue No. 1, it has been decided by the Government to appoint a Technical Member Commission to carry on a technical inquiry and make report within one month in the light of whatever inquiry has been made on issue No. 1 and issue No. 3 insofar as it arises out of issue No. 1 and the technical opinions and affidavits etc. which have been received in that connection and it has been decided to appoint Shri Y.K. Murti who has been appointed as the Technical Assessor to this very judicial Commission, as one-man Technical Commission.
27. It has been decided to consider the appointment of one-man Administrative Inquiry Commission if it is felt necessary after the receipt of the abovementioned technical inquiry report and a perusal of that report, to inquire into issue No. 2 or issue No. 3 insofar as relates to issue No. 2 and make report thereon. It has also been considered that for this purpose, the second assessor Dr. Ravi Matbai will be oppointed as this one-man Administrative Inquiry Commission.
28. It has been decided to make arrangements for taking up immediately the work of this dam after the issuance of the notification discontinuing the Commission.
29. We will first deal with two preliminary contentions urged by Mr. Vakil on behalf of the State Government, the first respondent herein. His first preliminary objection is that the petition is in fructuous and the writ, if any, issued would be futile and the Court would not go into the merits of this petition or issue a writ. His second preliminary objection is that the petitioners have no locus standi to file the petition. Elaborating the first preliminary contention, Mr. Vakil contended that even if the impugned notification of March 17, 1981 is quashed, in view of the fact that the last extension was due to expire on 9th June 1981, granting of any relief would be in fructuous. He contended that the petition had been filed by the petitioners to enable the Commission to continue and to complete the inquiry and if that cannot be done, the Court would not grant by way of an academic exercise any relief of quashing the impugned notification and he further submitted that if, in tact, the petition has become in fructuous at the level of the High Court, it must be dismissed without expressing any opinion on the merits of the case. It may be slated that on behalf of the Commission, Mr B.R. Shah who is the senior advocate appearing for the Commission before us, stated on May 26, 1981 that if the High Court were to quash the impugned no tification of March 17, 1981, as on May 26, 1981 the inquiry would never be completed before June 9, 1981. In connection with this point Mr. Vakil drew our attention to the fact that even on March 17, 1981 the report of Shri I.C. Gupta, one of the experts on Hydrology, had not been furnished to the State Government though it had been received as far back as July 1980. The report o-the other expert on Hydrology, Dr Satish Chandra, was not yet received. He further pointed out that counsel for the Commission had asked Mody and Modhwaclia, two of the witnesses for the Government, to carry out elaborate exercises of computation and calculations, on hypothatical data which would require at least a month, if not more, to carry out and that in that connection, CMP 5 of 1981 was taken out by the Commission counsel for directions to the State Government and to Mody acd Modhwadia, two of the technical witnesses on behalf of the Government, to carry out those exercises. Mr. Vakil pointed out that these exercises were required to be carried out to enable the two Witnesses to be cross-examined as and when their cross-examination proceeded. It is common ground before us that according to the procedure prescribed by the Commission, no witness for any side was going to be examined in-chief and the affiidavits filed by the respective witnesses were to be trea ted as examination-in-chief and only the person concerned was to be cross-examined out of those different witnesses in the light of what has been stated in the affidavit of that particular individual witness. It is also common ground that all the files of the State Government which have been submitted to the Commission were going to be exhibited as such, subject to any objection on the admissibility or privilege that might be claimed in this connection.
30. Mr. Vakil urged before us that in connection with the question of privilege claimed by the State Government regarding the report made by the Collector of Rajkot in connection with the breach in Machhu-2 Dam, Special Civil Application No. 3101 of 1980 has been filed in this Court by the State Government. The Commission held that the Government was not entitled to any privilege. Against that order of the Commission this Special Civil Application No. 3101 of 1980 has been filed. It has been referred to a Division Bench and until the question of privilege is decided, the Commission will not be in a position to complete its work. It was also urged that so far as that special civil application is concerned, there is no stay granted by the High Court but it has been directed that there should be no disclosure of the document in question till the special civil application is decided and the document at present is kept in a sealed cover. But Mr. Vakil very fairly conceded that the particular document has a bearing on Clause (b) of the Terms of Reference, that is, on the issue of the adequacy of the action taken by the various authorities, till the flood waters from the dam entered the affected areas, to avert the disaster and to mitigate the consequences thereof. Mr. Vakil further urged that there was also the problem of non-availability of assessors because Dr. Murti is an advisor to the World Bank on irrigation problems and because of his commitments to the World Bank he is often not available for work in connection with the Commission. He pointed out further that it has been urged on behalf of the Government by the learned Advocate General before the Commission that all technical witnesses should be examined in the presence of Dr. Murti because he is the technical expert. This submission of the learned Advocate General has been accepted by the Commission and the Commission's counsel has also agreed that ail technical witnesses should be examined and cross-examined in the presence of Dr. Murti. If this is so, because of the nonavailability of the technical assessor Dr. Murti, it would have been impossible for the Commission to complete its work before 9th June 1981. Mr. Vakil pointed out to us that nearly 2500 files of the Government containing more then 2,50,000 pages were on the record of the Commission and as many as 146 affidavits from members of the public, had been filed. There were also the critical and very critical areas which had been pointed out by counsel for the Commission is his letter addressed to Mr. Vakil. Mr. Vakil also urged before us that till the date of discontinuance, the report on Hydrology from Dr. Satish Chandra had not been received and some of the reporis already received by the Commission were not furni shed to the Government either in time or at all. He further pointed out that the concept of critical and very critical areas had been developed as the work of the Commission progressed and, under these circumstances. even if the Commission had not been discontinued by the impugned notification, the work of the Commission could not have been completed before June 9, 1981. Mr. Vakil therefore urged, in view of all these factors, that if the work of the Commission could not have been completed before June 9, 1981-and that was the situation which prevailed on March 17, 1981 the relief of quashing the impugned notification of 17th March 1981 would be totally futile and therefore on the ground of in fructuousness, without expressing any opinion on the merits the petition should be dismissed in limine. He also urged in this connection that a Commission of Inquiry functioning under the Act is a fact finding body that it has no adjudicatory power. Its decision has no force proprio vigore. The report of the Commission is really recommendatory and the report of the Commission is only on facts. The proceedings before the Commission are not strictly judicial proceedings. The report of the Commission is not admissible in any adjucatory proceeding and the statements made before the Commission by any person cannot be used by him or against him under Section 33 or 145 or 15 of the Evidence Act. No right flows from the report of the Commission arid the Commission's report is merely for the purpose of instructing the mind of the Government. In view of this aspect of the nature of the Commission and the scope of the inquiry before the Commission, it was urged that any relief quashing the impugned notification would be lutile and would serve no purpose at all. He urged that it cannot effectively vindicate the petitioners' assumed right of having the disaster inquired into by the Commission of Inquiry. Mr. Vakil further urged in this connection that the quashing of the impugned notification or granting of a declaration would be an end in itself and such a writ cannot serve any means for furtherance or the enforcement of a legal right or any interest to be served. It can only provide an academic dissertation on the validity of the impugned notification. He therefore urged that even from this point of view, the writ, if granted, would be futile and the petition is in fructuous.
31. When Mr. Vakil urged this first preliminary submission, we pointed out that according to a series of decisions of the Supreme Court and also it decision of this High Court, in granting relief under Article 226 of the Constitution, it is always open to the Court to mould the relief in such a manner so that justice is done and we asked Mr. Vakil to consider making his submissions on this preliminary point regarding in fructuousness from the point of view of moulding the relief. He urged that moulding of relief arises under two sets of cricumstances: (a) when the appropriate relief to be granted does not fall in the scope of any prerogative writ known to English Law, and (b) appropriate relief to be granted is different from the relief prayed for. But if the petition has become in fructuous, there is no question of moulding the relief. In connection with his submission on this point, Mr. Vakil drew our attention to the decision of the Supreme Court in K.N. Guruswamy v. The Stale of Mysore : 1SCR305 . There at page 596 Bose J speaking for the Supreme Court observed:
We would therefore in the ordinary course have given the appellant the writ he seeks. But, owing to the time which this matter has taken to reach us (a consequence for which the appellant is in no way to blame, for he has done all he could to have an early hearing), there is barely a fortnight of the contract left to go. We were told that the excise year for this contract (1953-54) expires early in June. A writ would therefore be ineffective and as it is not our practice to issue meaningless writs we must dismiss this appeal and leave the appellant content with an enunciation of the law. But as he has in reality won the case and is prevented from reaping the full fruits of his victory because of circumstances for which he is not responsible, we direct that the first respondent, the State of Mysore, and the fourth respondent Thimmappa pay the appellant his costs here and in the High Court. The other respondents will bear their own costs.
In Guruswamy's case (supra), the facts were that Guruswamy and the fourth respondent Thimmappa were rival liquor contractors. The contract for the City and Taluka of Bangalore was auctioned by the third respondent, the Deputy Commissioner, on 27th April 1953, The appellants bid of Rs. 1,80,000/- a month was the highest, so the contract was knocked down in his favour subject to formal confirmation by the Deputy Commissioner. On the same day the appellant deposited Rs. 1,99,618-12-0. The fourth respondent Thimmappa was present at the auction but did not bid. Instead of that he went direct to the Excise Commissioner behind the appellant's back and made an offer of Rs. 1,85,000/- On 11th May 1953, the Excise Commissioner passed the following order: 'The highest bid received in the recent auction sale is Rs. 1,80,000 per mensem. As Shri Thimmappa has now offered Rs. 1,85,000 per mensem, the sale held by the Deputy Commissioner is cancelled. The Deputy Commissioner, Bang-lore, District, is requested to take further action under the Rule 10 of the Rules regulating the sales of Excise Privileges. The tender given by Thimmappa is herewith enclosed'. On the same day the Deputy Commissioner informed the appellant that the sale had been cancelled by the Excise Commissioner and on 16th May 1953, he was given a copy of the Excise Commissioner's order. It was this action of the Excise Commissioner and the consequential orders passed by the Deputy Commissioner that were challenged by Guruswamy. It was held by the Supreme Court that the action of the Deputy Commissioner in giving contract to Thimmappa was wrong as it ran counter to the policy of the Legislature which was that matters of such consequence to the State revenue could not be dealt with arbitrarily and in the secrecy of an office. Yet, because of the question of time no relief was granted to the appellant. It must be remembered that this decision was on the question of a licence for liquor vending. Mr. Vakil also drew our attention to the decision of the Supreme Court in Suresh v. Vasant and Ors. A.I.R. 1974 S.C. 1680 There Grover J. speaking for the Supreme Court in paragraph 5 at page 1682, observed:
The High Court, while granting the relief, ought to have kept in view the injustice that would result in a matter like this and which would make the grant of the writ almost futile. It is true that a good deal of time has lapsed owing to the pendency of the appeal in this Court but even the judgment of the High Court was delivered on November 6, 1970 by which time the same difficulties would have been apparent.
In that particular case the facts were that the Vidyapeeth (University) had three Agricultural Colleges attached to it. One was at Akola, the other at Nagpur and the third at Parbhani. For the M.Sc. (Agricultural) course 12 per cent seats were reserved for the Scheduled Castes and Nawa-buddhas and 8 per cent were reserved for the Scheduled Tribes. Six per cent seats were reserved for members of classes and communities which were socially and educationally backward. Two per cent seats were reserved for agriculturists and children of agriculturists who possessed minimum qualifications or experience in agriculture prescribed by the statute. Fifteen per cent seats were reserved for persons who and whose parents had not resided in the State for 10 years or more and 2 per cent for the children of what were called 'Freedom Fighters'. Initially admissions were made on the basis of the above percentages. The qualifications required for admission were the degree of B.Sc. CAgri.) or an equivalent examination which at least 50 per cent marks in the aggregate and in the subject offered for the Post Graduate studies. The Vidyapeeth found that after the admissions had been made on the basis of the above qualifications certain relaxation of marks was necessary for students belonging to the classes for whom reservation had been made. Two steps were taken: One was that additional seats should be created and twelve such seats were created. The qualifications were also lowered in that instead of 50 per cent marks in the aggregate 45 per cent were laid down as sufficient. The lowering of the qualifications was done mainly in respect of the sons of 'Freedom Fighters' as also of persons belonging to Scheduled Castes and Scheduled Tribes. This was done by the Executive Council by means of a resolution dated July 25, 1970; without going into further details the net result was that in the Nagpur College itself two seats were increased to accommodate the children of the Freedom Fighters. To one of the seats respondent No. 1 was admitted. He started attending the classes from July 28, 1970. By the time return came to be filed in October 1970, he had appeared in all the monthly examinations and had passed in them. The final examination of the First Trimester of the Course leading to degree of the M.Sc. (Agri.) examination had already been held and respondent No. 1 had passed that examination. A petition under Article 226 of the Constitution was filed in the High Court and it was in the proceedings arising out of these circumstances, that the Supreme Court made these observations. Here it may be pointed out that the person affected had been permitted to do something in pursuance of the orders which had been impugned and in the circumstances, altogether a different situation had arisen by the passage of time.
32. Mr. Vakil drew our attention to the decision of the Calcutta High Court in Abdul Alim v. Commissioner of Wakfs, West Bengal A.I.R. 1973 Cal. 177. It was held by the Calcutta High Court in that case that where in the writ appeal the appellant claimed restoration to the Mutawaliiship to which he was appointed for five years but had been illegally removed, the appeal should be dismissed as the term of the appellant's appointment having expired no relief could be granted. Mr. Vakil also relied in this connection on the decision of the Patna High Court in Akahaybat Prasad Singh v. The Under Secretary to the Government of Bihar : AIR1973Pat39 . There the Patna High Court held that the order granting permit to one of applicants could not be sustained in law but it was not set aside as the permit was due to expire within a month on the aspect of moulding the relief. Mr. Vakil cited two decisions of the Supreme Court. The first decision is in Dwarka Nath v. lncom-lax Officer : 57ITR349(SC) In that case, Subba Rao, J., as he then was, speaking for the Supreme Court, pointed out in paragraph 4 at page 84:
This article (Article 226) is couched in comprehensive phraseology and it ex-fade confers a wide power on the High Courts to reach injustice wherever it is found The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it on be exercised. It can issue writs in the nature of prerogative writs as understood in England but the scope of those, writs also is widened by the use of the expression 'nature', for the said expression does not equate the writs that can be issued in India with those in England, but only drew analogy from them. That apart. High Courts can also issue directions, orders or writs other then the prerogative writs It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the Article itself. To say this is not to say that the High Courts can function arb trarily under this Article Some limitations are implicit in the article and others may be evolved to direct the article through defined channels. This interpretation has been accepted by this Court in T.C. Basappa v. Nagappa. and Irani v. State of Madras : 2SCR169 .
: 1SCR250 Emphasis supplied.
Thus it is clear that in exercise of the extra-ordinary powers under Article 226 it is open to the High Court to mould the reliefs to meet the peculiar and complicated requirements of this country and that wide powers have been conferred on High Courts to reach injustice wherever it is found. It is from this objective that the question of moulding the relief, if any, has to be considered.
33. In Chiranjit Lal v. The Union of India : 1SCR869 , it has been pointed out in paragraph 45 at page 53 by Mukherjee, J. in the context Article 32:
Any way, Article 32 Of the Constitution gives us very wide discretion in the matter of framing our writs to suit the exigencies of particular cases, and the application, of the petitioner cannot be thrown out simply on the ground that the proper writ or direction has not been prayed for.
Mr. Vakil in the course of his arguments has emphasised that in the instant case no relief praying for a direction to extend the life of the Commission has been prayed for in this connection and the decision in Chiranjit Lal's case (supra) is a clear authority for the proposition that the application of the petitioners cannot be thrown out simply on the ground that proper writ or direction has not been prayed for.
34. Mr. Vakil relied on the decisions of the different High Courts in India in support of the proposition that when the petition has become in fructuous, there is no question of moulding the relief. He relied in this connection on the decision of the Allahabad High Court in Hukum Chand Jain v. The Municipal Board. Faizabad : AIR1959All686 . There M.C. Desai, J., as he then was, sitting single, has observed:
The Court must take into account subsequent events that have happened and if they render any relief that the Court can give in the writ petition ineffective it must refrain from granting it. A court should not grant a relief that can be immediately rendered ineffective by a valid act of the party against whom it is granted. Thus, where an illegal order of suspension is supplanted by another order of suspension, in the face of such order, whether legal or illegal or contemptuous or not, it would be useless for the Court to quash the earlier order of suspension, because the petitioner must remain under suspension under the second order of suspension.
The second decision relied upon in this connection is the decision of the Calcutta High Court in General Manager, Eastern Railway and Anr. v. Kshirode Chandra Khasmobis : AIR1966Cal601 . There P.B. Mukherji, J. speaking for the Division Bench of the Calcutta High Court observed:
Generally the discretion to issue a writ under Article 226 should be used in favour of the vigilant and not the indolent. Vigilant does not mean the militant who is straining at every moment and at every stage but reasonably vigilant. Where there is delay of over 20 years the discretion to issue a writ should not be used. The petitioner sought correction to his service record with respect to the age after 20 years from his joining the service. The authorities were not satisfied with his explanation as to how wrong date came to be entered and his request was rejected. After that the petitioner did not enforce his right for about 16 years. He did not move in the respect even after his retirement and even within the period which he claimed to be extended.
On these facts the Calcutta High Court held that by reason of this delay the petitioner having retired the High Court could not grant any effective relief even if the Court were satisfied about the merits of the petitioner's case on age. In such a case any writ would be in vain.
35. The third decision on which Mr. Vakil relied in this connection was the decision of the Delhi High Court in Sudarshan Kumar Kalra v. Union of India : AIR1974Delhi119 In that case the Delhi High Court relied upon the above mentioned decision of the Calcutta High Court in General Manager, Eastern Railway v. Kshirode Chandra Khasmohis case (supra) and observed in paragraph 28 at page 128:
There is yet another aspect of the matter. In the context of the facts stated above, the relief prayed for in this writ, if granted, would be nothing more then mere declarations to be availed of by the petitioners in the civil suit. Writ jurisdiction under Article 226, to our mind, is not meant to serve these ends.
and the passage from the decision of the Calcutta High Court's decision in General Manager, Eastern Railway's case (supra) has been relied upon.
36. In support of the submissions regarding the question of the nature of the causes and the scope of the inquiry before the Commission, Mr. Vakil relied upon the decision of the Nagpur High Court in M.V. Rajwade v. Dr. S.M. Hassan and Ors. A.I.R. 1954 Nagpur 71. The decision of the Supreme Court in Brajnandan Sinha v. Jyoti Narain : 1956CriLJ156 The decision of the Supreme Court in Ram Krishna Dalmia v. Justice S.R. Tendulkar : 1SCR279 and the decision of the Supreme Court in the State of Jammu & Kashmir v. Bakshi Gulam Mohammad : AIR1967SC122 . As regards these decisions on the scope of the inquiry before Commissions and the nature of the proceedings before Commissions, the proposition of law is very clear. The main question before us is of moulding the relief. Now as regards the question of moulding the relief it must be pointed out that the decisions relied upon by Mr. Vakil in : AIR1959All686 and A.I.R. 1974 Delhi 121 (Supra) were in connection with students, dismissal of Mutawalli or in the case of property, as in the Patna case. These were not the case dealing with the exercise of powers or of statutory discretion. On the other band, Mr. Shelat has relied upon the powers of the Court to mould the relief's. In Kavalappara Kottarathi Kochunni v. State of Madras : AIR1959SC725 , Des, C.J. speaking for the majority of the learned Judges of the Supreme Court, observed in paragraph 11 at page 732:
The next argument in support of the objection as to the maintainability of these petitions is thus formulated: the impugned Act is merely apiece of a declaratory legislation and does not contemplate orrequire any action to be taken by the Mate or any other person and, therefore, none of the well known prerogative writs can afford an adequate or appropriate remedy to a person whose fundamental right has been infringed by the mere passing of the Act. If such a person challenges the validity of such an enactment, he must file a regular suit in a court of competent jurisdiction for getting a declaration that the law is void and, therefore, cannot and does not affect his right. In such a suit he can also seek consequential reliefs by way of injunction or the like, but he cannot avail himself of the remedy under Article 32. In short, the argument is that the proceedings under Article 32 cannot be converted into or equated with a declaratory suit under Section 42 of the Specific Relief Act. Reference is made, in support of the aforesaid contention, to the following passage in the judgment of Mukherjea, J, as he then was, in the case of Chiranjit Lal Choudhari v. Union of India : 1SCR869 at p. 53:
As regards the other point, it would appear from the language of Article 32 of the Constitution that the sole object of the article is the enforcement of fundaaieutal rights guaranteed by the Constitution. A proceedings under this Article cannot really have any affinity to what is known as a declaratory suit.
ut, further down on the same page His Lordship said:
Any way, Article 32 of the Constitution gives us very wide discretion in the trailer of framing our writs to suit the exigencies of particular cases, and the application of the petitioner cannot be thrown out simply on the ground that the proper writ or direction has not been prayed for.
It should be noted that though in that case the petitioner prayed inter alia, for a declaration that the Act complained of was void under Article 13 of the Constitution it was not thrown out on that ground. The above statement of the law made by Mukherjee, J. is in accord with the decisions of this Court in the earlier case of : 1SCR566 . The passage from our judgment in that case, which has already been quoted above, also acknowledges that the powers given to this Court by Article 32 are much wider and are not confined to the issuing of prerogrative writs only. The matter does not rest there. In I.C. Basappa v. T. Nagappa : 1SCR250 Mukherjee. J. again expressed the same view page 256 of S.C.R. at p. 443 of A.I.R.:
The language used in Articles 32 and 226 of our Constitution is very wide and the powers of the Supreme Court as well as of all the High Courts in India extend to issuing of orders, writs, or directions including writs in the nature of habeas corpus, mandamus, quo warranto prohibition and certiorari as may be considered necessary for enforcement of the fundamental rights and in the case of the High Courts, for other purposes as well In view of the express provision of our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law. for feel oppressed by any dirierence or change of opinion expressed in particular cases by-English Judges.... If, therefore, the contentions of the petitioners be well founded, as to which we say nothing at present, a declaration as to the invalidity of the impugned Act together with the consequential relief by way of junction restraining the respondents and in particular respondents 2 to 17 from asserting any rights under the enactment so declared void will be the only appropriate reliefs which the petitioners will be entitled to get. Under Article 32 we must, in appropriate cases, exercise our discretion and frame our writ or order to suit the exigencies of this case brought out by the alleged nature of the enactment we are considering. In a suit for a declaration of their titles on the impugned Act being declared void, respondents 2 to 17 will certainly be necessary parties, as persons interested to deny the petitioners' title. We see no reason why, in an application under Article 32 where declaration and injunction are proper reliefs, respondents 2 to 17 cannot be made parties. In our opinion, therefore, there is no substance in the argument advanced by learned Counsel on this point.
In State of Madhya Pradesh v. Bhailalbhai : 6SCR261 Das Gupta, J. speaking for the Supreme Court observed in paragraph 17 at page 1011:
It may however be stated as a general rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. Again, where even if there is no such delay the Government or the statutory authority against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on the grounds like limitation the Court should ordinarily refuse to issue the writ of mandamus for such payment. In both these kinds of cases it will be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in civil court and to refuse to exercise in his favour the extraordinary remedy under Article 226 of the Constitution.
Das Gupta, J. further observed:
Where sales tax, assessed and paid by the dealer, is declared by a competent Court to be invalid in law, the payment of tax is already under a mistake within Section 72 of the Contract Act and so the Government to whom the payment has been made by mistake must in law repay it. In this respect, the High Court has, in exercise of its jurisdiction under Article 226 of the Constitution of India, power for the purpose of enforcement of fundamental rights and statutory rights to give consequential relief by ordering repayment of money realised by the Government without the authority of law.
In The Director of Inspection of Income-tax (Investigation), New Delhi v. pooram Mall and Sons : 96ITR390(SC) Alagiriswami, J. speaking for the Supreme Court in paragraph 6 at page 70 observed:
The Court in exercising its powers under Article 225 has to mould the remedy to suit the facts of a case. If in a particular case a Court takes the view that the Income-tax Officer while passing an order under Section 132(5) did not give an adequate opportunity to the party concerned it should not be left with the only option of quashing it and putting the party at an advantage even though it may be satisfied that on the material before him the conclusion arrived at by the Income-tax Officer was correct or dismissing the petition because otherwise the party would get unfair advantage. The power to quash an order under Article 226 can be exercised not merely when the order sought to be quashed is one made without jurisdiction in which case there can be no room for the same authority to be directed to deal with it. But in the circumstances of a case the Court might take the view that another authority has the jurisdiction to deal with the matter and may direct that authority to deal with it or where the order of The authority which has the jurisdiction is vitiated by circumstances like failure to observe trie principles of natural justice the Court may quash the cider-and direct the authority to dispose of the matter afresh after giving the aggrieved party a reasonable opportunity of putting forward its case. Otherwise, it would mean that where a Court quashed an order because the principles of natural justice have not been complied with it should not while passing that order permit the tribunal or the authority to deal with it again irrespective of the merits of the case.
Thus the question of power of the High Court to mould the relief was emphasized by Allagiriswami, J., that moulding of relief granted would be in the light of the facts and circumstances of a particular case before the High Court. In Shiv Kumar Dal Mills v. State of Haiyana : 1SCR1170 , Krishna Iyer, J. speaking for the Supreme Court observed in paragraph 6 at page 1037:
Article 226 grants an extraordinary remedy which is essentially discretionary, although founded on legal injury. It is perfectly open for the Court, exercising this flexible power, to pass such order such as public interest dictages and equity projects.
Quoting from an American authority on the subject, Krishna Iyer, J. observed:
Courts of equity may, and frequently do, go much further both to give and withhold relief in furtherance of the public interest then they are accustomed to go where only private interests are involved. Accordingly, the granting or withholding of relief may properly be dependent upon considerations as of public interest....
All the authorities on the point available upto the data of the decision in Navinchandra Shakerchand Shah v. Manager Ahmedabad Co-op. Department Stores Ltd. 19 G.L.R. 108, decided by a Division Bench of this High Court on March 17, 1977, were considered so far as the question of moulding the relief was concerned. In that case the Division Bench was concerned with the case of a helper employed by the employer for two and half years and assigned the work of preparing bills and weighing commodities sold to the customers in the premises of the employer. On the relevant date, that is, on November 17, 1973 he was in receipt of consolidated monthly wages of Rs. 145/-. On November 17, 1963, somewhere in the evening one customer came to purchase wheat. It was alleged that he purchased 10 Kg. of wheat and a bill to that effect was prepared by the petitioner and when he started weighing the quantity of wheat in the scales one Mr. Thakarda who was in charge of the food grains section and one Antiben which appears to be the name by which witness Bhanuben Vakil was addressed found that the quantity of wheat, in the scale appeared to be more then that the customer had purchased and they stopped the petitioner from putting the wheat in the cotton cloth handbag which the customer had brought and 5 Kg. of wheat were taken out and put back in the jute bag from which the wheat was taken. A domestic inquiry was held against the employee in respect of this incident and the helper was dismissed from service. It was this order of dismissal which was challenged in the Labour Court and against the decision of the Labour Court, a special civil application was filed in this High Court. The High Court found that an illegality was committed by the Labour Court and that the illegality was patent on the record of the case. The High Court found that under Article 266, as amended by 42nd Constitution Amendment Act, the High Court can in appropriate cases grant writ in the nature of Habeas Corpus, or any other direction or order amongst other things under Clause (b) for redress of any injury of a substantial nature by reason of the contravention of any other provision of the Constitution or any provision of any enactment or ordinance or any order, rule, regulation bye-law or other instrument made thereunder. This is one power enjoyed by the High Court. The High Court can also grant a writ, direction or order under Clause (c) for redress of any injury by reason of any illegality in any proceedings by or before any authority under any provision referred to in Sub-clause (d) where such illegality has resulted in substantial failure of justice. The Division Bench observed:
The question really is whether this Court under amended Article 226 of the Constitution after quashing the order by granting a writ of certiorari cannot modulate its order so as to grant appropriate relief. The petitioner comes to this Court for the issue of a writ of certiorari alleging not merely that there was a failure to exercise jurisdiction or (here was an excess in exercising jurisdiction but that the quasi judicial Tribunal has acted in violation of the principles of natural justice or in violation of the statutory rules governing it and it has caused harm to the petitioner by wrongfully terminating his services. In such a case for a writ of certiorary should the Court content itself by merely quashing the order by which termination was provided for? In other words, it is a correct approach to the problem for in every case where a writ of certiorari is prayed for, the jurisdiction of the CV nit under Article 226(1) comes to an end as soon as the impugned order is quashed. That would be denuding the vital power conferred on the Court by Article 226. To say that a writ of certiorari can be granted only by quashing the order is to denude the writ of its effective meaning.
Consequential relief is ancillary to the main relief. That is why it is called consequential. The main relief that is sought in a writ of certiorari is that a quasi-judicial tribunal has either failed to exercise the jurisdiction vested in it or has acted in excess of it and that order has caused some harm to the petitioner and he seeks relief. Therefore, consequential order has always to be made and the power to grant the main relief would unless a contrary intention is somewhere expressed implies the power to grant consequential relief. The High Court has, therefore, under Article 226, power and jurisdiction to grant consequential relief.
A writ can issue under Article 226(1) for the enforcement of the fundamental rights. Formerly the language was 'for the enforcement of any rights conferred by Part III and for any other purpose.' (It may be pointed out that after the 45th Amendment the position today is as it prevailed prior to the enactment of 42nd Amendment). The expression 'other purpose' were construed wide enough to include various illegalities. The expression other purpose' is omitted. Put look at the language employed in Causes (b) and (c) of Article 226 (1). It clearly envisages the situation with which we are confronted. A writ, direction or order can issue from this High Court for the redress of any injury of a substantial nature if the injury is caused by reason of the contravention of any provision of the Constitution or any provision of any enactment or ordinance or any order, rule, regulation, bye-law or other instrument made thereunder. The injury was caused by not following the standing orders. Rules of natural justice govern every quasi-judicial inquiry. The word 'redress' means restoring the position as it stood prior to the injury. The illegality committed by the Labour Court is patent on the record in the sense that it did not care to look at the problem according to law as laid down in this country and in force in this country Therefore, after the introduction of Clauses (b) and (c) in Article 226(1), there is no doubt that the High Court cannot be confined to the narrow grooves of the historical notions with regard to writs in England but in the context of socioeconomic justice, we must mould the reliefs as to be effective. That is what we must do and therefore this cloud or doubt about our power must stand dispelled by the discussion herein and we must grant the appropriate relief.
In view of these different authorities, it is very clear that when the Court exercises jurisdiction under Article 226, it has the power to mould the relief and grant the relief in such a manner as to make the granting of the relief effective. It is not correct to say, as Mr. Vakil submitted before us, that the principle of moulding the relief can be called into play only where appropriate relief which is granted does not fall within the scope of any prerogative writ known to English law or where appropriate relief to be granted is different from the relief prayed for, as the Division Bench in 19 G.L.R. 108 (supra) pointed out, in order to make effective the relief which the Court grants, any other consequential or ancillary relief has to he granted so as to secure the ends of justice. Looking to the wide scope of the language in Article 226, it is always open to the Court to mould be relief and to grant the consequential or ancillary relief so as to restore the position to what it was before the impugned action was taken by the concerned authority. Under these circumstances, if we come to the conclusion that the impugned notification is bad in law and requires to be quashed and set aside, appropriate relief to see that the quashing and setting aside of the notification does rot become ineffective can be granted and must be granted and therefore, it cannot be said that at the time when the petition was instituted, in view of the deadline of June 9, 1981, the petition was infrucruous because the Commission could not have completed its work before 9th June 1981. In this connection, it must not be forgotten that as recorded by the Commission in its order. Exhibit 107 dated September 5, 1980, the learned Advocate General who was appearing on behalf of the State Government, had assured the Commission that he would obtain suitable extension of the period for completing the inquiry in this behalf, that is, in connection with the amendment which was introduced in the original notification by the notification of August 27, 1981. Again, in Exhibit 149, being the order dated December 10, 1980 the Commission has observed: 'The learned Advocate General however told the Commission that there will be no difficulty in extension of time.' In view of these assurances given by the learned Advocate General, if the impugned notification is set aside, it would be incumbent on the State Government to grant the extension of time because the assurances given on behalf of the State Government must be carried out by the State Government by issuing appropriate notifications from time to time. Serious consequences are likely to follow if these assurances are not carried out. In view of these assurance and in view of the power of the Court under Article 226, of moulding the reliefs so as to make the relief effective and to serve the ends of justice, it would be open to the Court to grant appropriate relief, ancillary or consequential.
39. We therefore reject the first preliminary contention urged by Mr. Vakil on behalf of the State Government and hold that the petition is not liable to be dismissed merely on the ground that the petitioners have not prayed for any relief by way of direction to the State Government to extend the time for the Commission to complete its inquiry and to make its report.
40. The second preliminary contention urged by Mr. Vakil was that the petitioners have no locus standi to file the petition. In this contention Mr. Vakil urged that a writ of mandamus or in the nature of mandamus is being asked for so far as consequential relief is concerned. The petitioners for such a relief of writ must have a legal right against the respondents end the respondents must have the corresponding legal duty to the petitioners. He contended that the petitioners must show that the Government owes them a legal duty not to discontinue the Commission. He further contended that there is no Us before the Commission. C.E.R.C., the first petitioner, before us, is no more then a public institution and it was urged that the C.E.R.C. had no property in Morvi and was not in any way effected by the disaster. The C.E.R.C. does dot want to sue the Government and claim damages and it has no legal right to ask the Government to appoint a Commission of Inquiry, There is no right in any person, according to Mr. Vakil, to have the Commission of Inquiry continued and the petitioners have no right to say that if the Commission is not discontinued the public would be an incidental beneficiary. There is no right to insist that the Commission of Inquiry should be appointed or if it has been appointed to ask that it should not be discontinued. He further urged that the C.E.R.C. has not filed any statement of facts and opinions or any affidavit but has only plunged into the dispute and Mr. Vakil urged that the petition has been filed mala fide by the C.E.R.C. He contended that a public-interest group has no substantial legal right of its own. The commission has permitted them to appear and the Court should not exercise their discretion in their favour. In connection with this submission about locus standi, Mr. Vakil relied upon the decision of the Supreme Court in Calcutta Gas Co. v. State of West Bengal : AIR1962SC1044 . In that case, Subba Rao, J., as he then was observed at page 1047 in its paragraph 5:
The first question that falls to be considered is whether the appellant has locus standi to file the petition under Article 226 of the Constitution. The argument of learned Counsel for the respondents is that the appellant was only managing the industry and it had no proprietary right therein and, therefore, it could not maintain the application. Article 226 confers a very wide power on the High Court to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights conferred by Part lit or for any other purpose. It is, therefore, clear that persons other then those claiming fundamental rights can also approach the Court seeking a relief thereunder. The Article in terms does not describe the classes of persons entitled to apply thereunder; but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. In State of Orissa v. Nadcm Gopal : 1SCR28 this Court has ruled that the existence of the right is the foundation of the exercise of jurisdiction of the Court under Article 226 of the Constitution. In Chiranjit Lal Chowdhuri v. Union of India : 1SCR869 , it has been held by this Court that the legal right that can be enforced under Article 32 must ordinarily be the right of the petitioner himself who complains of infraction of such right and approaches the Court for relief. We do not see any reason why a different principle should apply in the case of a petitioner under Article 226 of the Constitution. The right that can be enforced under Article 226 also 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 the rule may have to be relaxed or modified.
Mr. Vakil in this connection also relied on the decision of the Supreme Court in Kalyan Singh v. State of Uttar Pradesh A.I.R. 1962 S.C. 1183. In that case, Shah, J., as he then was, speaking for the Supreme Court observed in paragraph 14 at page 1180.
If the scheme was validly promulgated and became final within the meaning of Section 68D(3), it had the effect of extinguishing all the rights of the appellant to ply his vehicles under the permit. After cancellation of his permit, he could not maintain a petition for a writ under Article 226 because a right to maintain such a petition postulates a subsisting personal right in the claim which the petitioner makes and in protection of which he is personally interested.
Mr. Vakil also relied on the decision of the Supreme Court in Dr. Rai Shtivendra Bahadur v. Governing Body of the Nalanda College : (1962)ILLJ247SC . In that case it was held in order that mandamus may issue to compel the governing body of a college to do something it must be shown that the Statutes framed by the University under Section 20 of the University of Bihar Act impose a legal duty and the petitioner has a legal right under the Statutes to enforce its performance. According to the Statutes ail appointments of teachers and staff have to be made by the Governing Body and no person can be appointed, removed or demoted except in accordance with Rules but where the petitioner has not shown that he has any right entitling him to get an order for appointment or reinstatement, he cannot come to Court and ask for a writ to issue against the governing body. The decision in Parga Tools Corporation v. C.V. Imanual and Ors. : (1969)IILLJ479SC was also relied upon by Mr. Vakil in this connection. There the Supreme Court held that there must be a legal right to the performance of a legal duty. Writ cannot issue to a company which is not statutory body or having any public duty or responsibility imposed by the statute to restrain the company from enforcing agreement arrived at between Union and Company, and it was emphasized that Article 226 provides that every High Court shall have power to issue to any person or authority orders and writs including writs in the nature of habeas corpus, mandamus, etc. or any of them for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose. But it is well understood that a mandamus lies to secure the performance of a public or statutory duty in the performance of which the one who applies for it has a sufficient legal interest. Mr. Vakil also drew our attention to the decision of the Supreme Court in Manu Subrat Jain v. Slate of Haryana : 2SCR361 . Ray, C.J. speaking for the Supreme Court observed in paragraph 9 at page 277.
It is elementary though it is to be restated that no one can ask for a mandamus without a legal right. There must be a judicially enforceable right as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by some one who has a legal duty to do something or to abstain from doing something.
Mr. Vakil also drew our attention to the decision of the Single Judge of the Calcutta High Court in Shree Madhwudhan Mills v. Corporation of Calcutta : AIR1976Cal133 . There the learned Single Judge has observed in paragraph 22 at page 136:
The principle is that an association or collective body can move the Court under Article 226 only when its rights as a collective body as distinguished from the aggregate rights of its members arc affected by the impugned Act.
41. In support of his contention about the circumstances under which relief by way of mandamus can be granted or relief under Article 226 can be granted, by way of illustrative cases Mr. Vakil relied on the following decisions:
The Nagpur Rice and Flour Mills and Ors. v. N. Teekappa Gowda & Bros. : 3SCR846 .
Jonnala Narasimharao and Co. v. State of Andhra Pradesh : AIR1971SC1507
Jasbhai Molibhai Desai v. Roshan Kumar, Hajl Bashir Ahmed and Ors. : 3SCR58
Cyril K. Fernandes v. Sr. Myria Lydia and Ors. : 1SCR388
Kamal Chandra Patar v. The State of Assam & Ors. .
K.P. Jayaram Reddy v. The Bangalore University A.I.R. 1974 Maysore 17
Since the principle which Mr. Vakil urged in this connection have been amplified in the decisions which we have referred to above, we are not referring to the illustrative cases.
In our opinion, the question of locus standi has to be looked at from the point of view of principle. In his Book 'The Discipline of Law', 1979 Edition, Lord Denning, Master of Rolls in England has pointed out in Part III the question of locus standi. At page 113 of the Book he says:
During the 19th century the Courts were reluctant to let anyone come unless he had a particular grievance of his own. He had usually to show that he had some legal right of his own that had been injuriously affected. It was not enough that he was one of the public who was complaining in company with hundred or thousands of others. But during the 20th century the position has been much altered. In most cases now the ordinary individual can come to the Courts. He will be heard if he has a 'sufficient interest' in the matter in hand. But that test of a 'sufficient interest' is very elusive It has yet to be worked out by the Courts.
At Page 144 after examining the numerous cases in that behalf, Lord Denning observed:
In administrative law the question of locus standi is the most vexed questions of all. I must confess that whenever an ordinary citizen comes to the Court of Appeal and complains that this or that government department - or this or that local authority - or this or that trade union - is abusing or misusing its power -I always like to hear what he has to say. For I remember what Mr. T.P. Curran of the Middle Temple said in the year 1970:
'It is ever the fate of the indolent to find their rights become a prey to the active.
The condition upon which God hath given liberty to man is eternal vigilance' The ordinary citizen who comes to the Court in this way is usually the vigilant one. Sometimes he is a mere busybody interfering with things which do not concern him. Then let him be turned down. But when he has a point which affects the rights and liberties of all the citizen, then I would hope that he would be heard; for there is no other person or body to whom he can appeal But I am afraid that not everyone agrees with me.
The apprehension of Lord Denning expressed as 'that not everyone agrees with me' is not shared by our Supreme Court in Fertilizer Corporation Kamgar Union (Regd.), Sindri v. Union of India A.I.R. 1981 S.C. 344. It was pointed out by Chandrachud, C.J. speaking for himself and on behalf of Fazal Ali and Koshal, JJ. in paragraph 23 at page 350:.the maintainability of a writ petition which is corelated to the existence and violation of a fundamental right is not always to be confused with the locus to bring a proceeding under Article 32. These two matters often mingle and coalesce with the result that it becomes difficult to consider them in water-tight compartments. The question whether a person has the locus to file a proceeding depends mostly and often on whether he possesses a legal right and that right is violated. But, in an appropriate case, it may become necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus to initiate a proceeding, be it under Article 226 or under Article 32 of the Constitution. If public property is dissipated, it would require a strong argument to convince the Court that representative segments of the public or at least a section of the public which is directly interested and affected would have no right to complain of the infraction of public duties and obligations. Public enterprises are owned by the people and those who run them are accountable to the people. The accountability of the public sector to the Parliament is ineffective because the Parliamentary control of public enterprise is 'diffuse and haphazard'. We are not too sure if we would have refused relief to the workers if we had found that the sale was unjust, unfair or mala fide.
Krishna Iyer, J. speaking for himself and Bhagwati, J., though both of them agreed with the conclusion of the majority of the learned Judges as regards the facts of the case, dealt with the question of locus standi in paragraph 40 of his judgment at page 354 of the report observed:
The argument is, who are you to ask about the wrong committed or illegal act of the Corporation if you have suffered no personal injury to property, body, mind or reputation? An officious busybody picking up a stray dispute or idle peddlar of blackmail-litigation through abuse of the process of the court cannot be permitted to pollute the court instrumentality, for private objectives. Public justice is always and only at the service of public good, never the servant or janitor of private interest or personal motive.
41. Law, as I conceive it, is a social auditor and this audit function can be put into action only when some one with real public interest ignites the jurisdiction. We cannot be scared by the fear that all and sundry will be litigation happy and waste their time and money and the time of the court through false and frivolous cases. In a society where freedoms suffers from atrophy and activism is essential for participative public justice, some risks have to be taken and more opportunities opened for the public-minded citizen to rely on the legal process and not be repelled from it by narrow pedantry now surrounding locus standi.
42. Schwartz and H.W.R. Wade wrote in Legal Control of Government:
Restrictive rights about standing are in general inimical to a healthy system of administrative law. If a plaintiff with a good case is turned away, merely because he is not sufficiently affected personally, that means that some government agency is left free to violate the law, and that is contrary to the public interest. Litigants are unlikely to expend their time and money unless they have some real interest at stake. In the rare cases where they wish to sue merely out of public spirit, why should they be discouraged?' ... ... ... ... ... ...
we have no doubt that having regard to the condition in Third World countries. Cappalletti is right in his stress on the importance of access:
The right of effective access to justice has emerged with the new social rights. Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured by a workable remedy within the framework of the judicial system. Effective access to justice can thus be seen as the most basic requirement - the most basic 'human right' of a system which purpartsto guarantee legal rights'. (M. Cappalleti, Rabels Z(1976) at 672).
The need for a radical approach has been understood in New Zealand by Black:.today it is unreal to suggest that a person looks to the law solely to protect his interest in a narrow sense. It is necessary to do no more then read the newspapers to see the breadth of the interests that today's citizen expects the law to protect - and he expects the court where necessary to provide that protection. He is interested in results, not procedural niceties'. (Black-'The Right to be Heard', New Zealand, L.J. No. 4, 1077, 66).
43. India is an a fortiori case, especially as it suffers from the pathology of mid Victorian concepts about cause of action.
In paragraph 48 Krishna Iyer, J. observed:
If a citizen is no more then a wayfarer or officious intervener without any interest or concern beyond what belongs to any one of the 600 million people of this country, the door of the court will not be a jar for him. But if he belongs to an organisation which has special interest in the subject matter, if he has some concern deeper then that of a busybody he cannot be told off at the gates, although whether the issue raised by run is justiciable may still remain to be considered. I, therefore, take the view that the present petition would clearly have been permissible under Article 226.
In view of this position as expounded by Krishna Iyer J. the question that we have to ask ourselves is whether the petitioners in this case are wayfarers or officious interveners without any interest or concern beyond what belongs to any one of the other citizens of this country. We may point out that two of the respondents, namely, Morvi Chamber of Commerce and the Morvi Bar Association, are supporting the case of the petitioners. The first petitioner is a public charitable trust and is out to vindicate the matter which is very much a matter of public importance on the question whether a Commission of Inquiry set up under Section 3 has been properly discnotinued in accordance with law by the impugned notification under Section 7 of the Act. Public as a whole is interested in seeing that the Commission which was entrusted with the work of inquiry into inter alia the problem of construction, design and maintenance of Machhu-2 Dam and was also called upon to make recommendations regarding the future, should complete its work so that the benefit of the report of the impartial body regarding Machhu-2 Dam in particular and all other dams where problems similar to the problem of Machhu-2 Dam arise would be available to the general public, so that the general public can judge the issues involved when darns collapse or dams are being constructed. The petitioners are not merely busybodies. They did not come in merely for the purpose of seeking a sort of publicity. They are here on their own showing for two purposes to see that the inquiry is allowed to be completed by the Commission and secondly to vindicate, according them, the dignity of the Judiciary since the Commission of Inquiry in the instant case was presided over by a High Court Judge. Once it is found that there is a public necessity to be served in the sense in which Schowartz and Wade have explained, if the petitioners are right on the merits, the Government Notification of March, 17, 1981 discontinuing the Commission is contrary to law and violates the law. If the petitioners are not allowed to agitate this point, then, it would mean that the Government is left free to violate the law and if that is allowed to be done, surely such violation of law is contrary to the public interest, especially in a democracy where the rule of law prevails. Under these circumstances, the petitioners are a public interest body, fore the court to bring to the notice of the Court a matter of public interest and trying to vindicate the rule of law, and hence they have sufficient interest to enable them to maintain this petition. They have the appropriate locus standi to file this petition. The second preliminary contention urged on behalf of the State Government by Mr. Vakil must therefore fail.
42. At this stage we will set out the contentions which Mr. Vakil urged before us so far as the merits of the case are concerned. It may be pointed out that Mr. Tanna on behalf of the petitioners stated that he does not press the argument or contention on the basis of the fact that a copy of the petition was served on the Government before the impugned notification was issued. Mr. Vakil contended on the merits of the case as follows:
(1) The continued existence of the Commission of Inquiry can become unnecessary before the stage of its report as a matter of law:
(2) The Government does not forfeit its power to take action under Section 7 of the Act merely by reason of the fact that the Government took up a partisan stand in the proceedings before the Commission:
(3) The Government is not estopped from or precluded from discontinuing the Commission because it obtained extensions of time in matters of filing the statements, affidavits, etc. after assuring Commission that time for completion of the inquiry would be extended:
(4) Mr. Vakil contended that the High Court's power of Judicially reviewing the action of the Govt, under Section 7 of the Act should be considered in the light of the value of the recitals in the Government notification about the formation of the opinion of the Government and also after considering to what extent the subjective satisfaction of the Government can be challenged before the Court:
(5) The next submission was that discontinuance of a Judicial Commission consisting of a High Court Judge does not mean under mining the Judiciary or its independence or expression of lack of confidence in the Judiciary. He submitted that if out of all the reasons, if one or more of the reasons, given by the Government for the discontinuance of the Commission are not proper reasons, on the basis of the reasons which are good and sustainable, the impugned notification can be upheld. The principle that if one of the reasons for a notification of this type is bad the entire order or notification gets vitiated, does not apply to an order of this type but only applies to cases of preventive detention or cases where the liberty of the citizen is at stake.
43. It has been urged by Mr. Tanna that issuance of the notification is vitiated by legal mala fides or malice in law. Before dealing with the rival contentions of mala fides on the one hand and estoppel etc. on the other and the question of judicial review in this case, we must first examine the question of what is the purpose of establishing a Commission of Inquiry under the Act. Mr. Tanna has principally drawn our attention to the Forward to the Book 'The Law Relating To Commissions Of Inquiry' by S.C. Gupta, 1977 Edition. Khanna, J., former Judge of the Supreme Court, observed:
Unless, therefore, the matter is such as can answer to the qualification of being a definite matter of public importance, the question of setting up a Commission under the Act does not arise.
... ... ... ... ... Despite the fact that the findings of a Commission of Inquiry cannot be enforced proprio vigore, those findings carry great weight and have a vital significance in public life. The Commissions of Inquiry should, therefore, be headed, as they in most cases have been, by eminent persons, free from bias and of unquestioned integrity, persons who inspire all round confidence and whose findings carry the impress of dispassionate approach.
It is also essential that the work of a Commission should be finished as soon as possible. This can be so only if one Commission is not burdened with too many cases involving a large number of persons and necessitating the recording and sifting of voluminous evidence. There has to be discerning selectiveness when deciding about the matters to be referred to the Commission. At the same time, there can be doubt that many of these Commissions serve a great public purpose. Not every matter of great public importance can or should be the subject matter of criminal or civil trial. The areas of operation of civil or criminal trials and of the proceedings of such Commissions may sometimes overlap, but, quite often they are not co-extensive, The reports of the Commission can bring out the lacunae in law; they may also, in appropriate cases, result in further penal or civil action.
The proceedings of a Commission in the very nature of things cannot be onesided. As observed by me while heading one such inquiry, the proceedings of Commission do not necessarily result in character assassination, they can equally lead to rehabilitation of reputation and killing of harmful and unjustified rumours.
In his Introduction to the Same Book, Justice Mathew, retired Judge of the Supreme Court, has observed:
There are several generally accepted propositions about the nature of the function of a Commission set up under the Act which require critical examination. The orthodox view since the decision of the Supreme Court in Dalmia's Case is that Commission is a merely fact finding agency and that its function is investigatory and inquisitorial in character. In England the power of inquiry originally belonged to Parliament, the ground inquest of the Nation, and it was deployed to gather facts in aid of its power to legislate. Subsequently the power was employed to gather facts to expose corruption and for other purposes. As a result of the deployment of this undiluted investigatory and inquisitorial power for other purposes without resorting to trail many reputations have been damaged, positions lost and businesses ruined. This has generated a growing body of sentiment for cubing what in effect, if not in law, is a direct punishment without the protection of judicial trial. Realising that justice to the individuals caught up in an inquiry is as important as public interest to be served by the appointment of a Commission, the Royal Commission on Tribunals of Enquiry, 1966 in England, laid certain cardinal principles with a view to avoid injustice 46 them. They were: (1) that the persons must be informed of the allegations against them; (2) that they must be given adequate opportunity for preparing their case and being assisted by legal advisors; (3) that their legal expenses must be met out of the public funds; (4) that they should be given an opportunity of being examined by their counsel and stale their case in public; (5) that any material witness called by them must be given an opportunity of being heard and (6) that they should be given an opportunity of testing by cross-examination by their counsel the evidence which may affect them.
Rules have been made by the Government of Gujarat in 1969 providing for the protection which has been mentioned by Justice Mathew. In Dalmia's case (Supra) the Supreme Court has observed: 'In our view the recommendations of the Commission are of great importance in order to enable the Government to make up its mind as to what legislative or administrative measures should be adopted'. Justice Mathew concludes:
What is the purpose of setting up a Commission? Is it to gather evidence and enter findings thereon by a person of undoubted probity on a definite matter of public importance so as to enable the Government to make up its mind and take appropriate civil or criminal action against the individual concerned or is merely to enable the Government to make a declaratory decision and thus satisfy the public about the true state of affairs concerning the matter which created something like a crisis of public confidence? It would seem that the object of appointing a Commission is to serve both these purposes. Commission however is not a mere investigating agency to gather evidence, to enable the prosecution of the person concerned in a criminal, or, to take proceeding against him in a civil court. That could be done by the ordinary investigating agency.
Apart from these weighty pronouncements of Justice Khanna and Justice Mathew, there is a recent decision of the Supreme Court where the Scope of Commission of Inquiry was gone into and that is the decision of the Supreme Court in State of Karnataka v. Union of India : 2SCR1 . Beg, C.J. who was in majority of the learned Judge who decided the case has observed in paragraph 28 at page 89.
It is interesting to note what Sir Cyril Salmon, Lord Justice of Appeal, said in a lecture on Tribunal of Inquiry:
In all countries, certainly in those which enjoy freedom of speech and a free press movements occur when allegations and rumours circulate causing a nationwide crisis of confidence in the integrity of public life or about other matters of vital public importance. No doubt this rarely happens, but when it does it is essential that public confidence should be restored, for without it no democracy can long survive. This confidence can be effectively restored only by thoroughly investigating and probing the rumours and allegations so as to search out and establish the truth. The truth may show that the evil exists, thus enabling it to be rooted out, or that there is no foundation in the rumours and allegations by which the public has been disturbed. In either case, confidence is restored.
In paragraph 30 the position as found by Beg, C.J. was:
It is thus clear that in democratic countries not only modern practice but statute can provide for inquiries of the kind which are meant to be conducted under our Act of 1952.
Paragraph 52 Beg, C.J. observed:
A commission of Inquiry could not properly be meant, as sometimes suspected, merely whitewash ministerial or d nartmental action rather then to explore and discover, if necessary, real faus. It is also not meant to serve as a mode of prosecution and much less of persecution. Proceedings before it cannot serve as substitutes for proceedings which should take place before a Court of law invested with powers of adjudication as well as of awarding punishments or affording reliefs. Its report or findings cannot relieve courts which may have to determine for themselves matters dealt with by a Commission. Indeed, the legal relevance or evidentiary value of a Commission's report or findings on issues which a Court may have to decide for itself, is very questionable. The appointment of a Commission of inquiry to investigate a matter which should, in the ordinary course, have gone to a court of law generally a confession of want of sufficient evidence....
Beg, C.J. again observed in paragraph 78:
Nor can we upon the view we take, read down and so interpret Section 3 of the Act as to exclude from its purview inquiries of the kind instituted under the two lotifications. To do so would be to give an incentive to possible misuse and perversion of governmental machinery and powers for objects not warranted by law. Such powers carry constitutional obligations with them. They are to be exercised like the powers and obligations of trustees who must not deviate from the purposes of their trusts. Whether a Minister has or has not abused his powers and privileges could be best determined by fair and honest people any where only after a just and impartial inquiry has taken place into complaints made against him so that its results are before them.
In paragraph 181, Chandrachud, J., as he then was, speaking as one of the Judges of the majority, quoted the same passage from Sir Cyril Salmon's Lecture as was quoted by Beg, C.J. and which we have extracted, above, and in paragraph 181 the position was summarised as follows:
It is very clear from these 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 definite judgement. 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 suspicis-ion. 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.
After quoting the above-mentioned passage from Sir Cyril Salmon's lecture Chandrachud, J. Proceeds to observe:
A police investigation is, at its very best, a unilateral inquiry into an accusation since the person whose conduct is the subject matter of inquiry has no right or opportunity to cross-examine the witness whose statements are being recorded by the police. Section 8-C of the Act, on the other hand, confers the right of cross-examination, the right of audience and the right of representation through a legal practitioner on the appropriate Government, on every person referred to in Section 8-B and with the permission of the Commission, on any other person whose evidence is recorded by the Commission.
Thus it is obvious-and that has also become clear from the decisions of the Supreme Court which we have referred to earlier while dealing with the first preliminary contention of Mr. Vakil-that the Commission of Inquiry appointed under Section 3 of the Act is merely a fact-finding body and its report has no binding force, nor is the function of the Commission an adjudicatory function. In this connection, the decisions in Rajwade's case A.I.R. 1954 Nagpur 71, Brajnandan Sinha's case : 1958CriLJ238 Ram Krishna Dalmia's case : 1SCR279 and Slate of Andhra Pradesh v. T. Gopalakrishnan Murthi A.I.R. 1967 S.C. 123, all indicate the scope of the work of the Commission. It is against this background of why a Commission of Inquiry is appointed and what is the purpose which the Government has in mind, that a Commission is appointed to inquire into any definite matter of public importance as in this case; immediately after August 11, 1979 when Macchu-2 Dam collapsed, there was a demand for a Commission of Inquiry and to restore public confidence at least so far as the construction or other dams in the State was concerned and to restore the public confidence that it was not owing to any defect or mistake in the construction, design or maintenance of the dam, Macchu-2 Dam, that led to the terrible disaster of August 11, 1979, that the 2nd respondent Commission was appointed.
44. In order to consider the challenge which has been posed before us to the notification of March 17, 1981 it is necessary to consider the provisions of Section 7 which we have reproduced above. We are not concerned in this instant case with a commission appointed in pursuance of a resolution passed by the Legislative Assembly of the State therefore the instant case falls within Section 7(1)(a) and for the purpose of this discussion the relevant words are 'appropriate Government may by notification in the Official Gazette declare that the Commission shall cease to exist if it is of opinion that the existence of the Commission unnecessary'. Therefore, if the State Government is of the opinion that the continued existence of the Commission is unnecessary, it may by notification in the Official Gazette declare that the Commission shall cease to exist. The Legislature has not declared or disclosed under what circumstances the opinion can be formed that the continued existence of the Commission is unnecessary. It is only the subjective satisfaction of the State Government that is indicated by the words 'is of opinion that continued existence of Commission is unnecessary'. Under Section 3 the words are 'the appropriate Government may, if it is of opinion that it is necessary so to do, appoint a Commission of Inquiry for the purpose of making inquiry into any definite matter of public importance'. Therefore, at the time when the Commission is appointed under Section 3(1) the Government has to form an opinion that it is necessary to appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance. It has been urged before us that Section 7(1)(a) of the Act must be read in the light of Section 3(I) and a Commission of Inquiry appointed for the purpose of inquiring into any definite matter of public importance is so appointed because of the opinion of the State Government that it is necessary to appoint such a Commission. The discretion of the State Government under Section 3(1) can be exercised if there is a definite matter of public importance and the State Government is of the opinion that it is necessary to have an inquiry made into that definite matter of public importance by a Commission of Inquiry, Once that conclusion is reached, namely, that it is necessary to appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance, it is open to the State Government to appoint a Commission of Inquiry. Can it be said, in the light of the provisions of Section 7(1), that the State Government can come to the opinion that the continued existence of the Commission is not necessary when the Commission has not completed its work and not submitted its report? Mr. Tanna for the petitioners urged before us and that is one of the contentions taken up in the petition-that once a Commission of Inquiry is appointed under Section 3(1) of the Act, it is not open to the State Government to discontinue the Commission under Section 7(I)(a) until the Commission has submitted its report. In our opinion, this submission of Mr. Tanna cannot be accepted because that would mean reading too much into the provisions of Section 3(1) and that would also mean rendering provisions of Section 7(1)(a) otiose. As was pointed out by Mr. S.N. Shelat, learned Advocate appearing for respondents 9 and 10, the Morvi Chamber of Commerce and the Morvi Bar Association, who support the petition, a situation may arise in the case of some Of the Commissions of Inquiry where any further inquiry by the Commission of Inquiry appointed earlier would be an exercise in futility and then the State Government can rightly form an opinion that the continued existence of the Commission is unnecessary even though the report of the Commission may not be available. He gave an illustration: A Commission of Inquiry is appointed to inquire into a particular communal riot: Before the Commission has completed its inquiry and submitted its report, a much larger and much more serious communal riot may take place and in the light of that subsequent communal riot the inquiry into the earlier communal riot may become an exercise in futility. In our opinion, this submission of Mr. Shelat is correct and, in our opinion, Mr. Tanna's contention that a Commission of Inquiry appointed under Section 3(1) cannot be discontinued under Section 7(1)(a) until the report of the Commission is submitted, must be rejected.
45. However, since the Legislature has not chosen to indicate under what circumstances the State Government can form an opinion, or on what facts the State Government can form an opinion that the continued existence of the Commission is unnecessary, it is for the Court interpreting Section 7(1)(a) to consider whether a Commission of Inquiry appointed, because of the formation of opinion by the State Government that it was necessary to have an inquiry made into any definite matter of public importance by a Commission of Inquiry, can be said to be a Commission whose continued existence is unnecessary. The Commission in the first instance, is appointed, because the State Government forms an opinion that it is necessary to appoint a Commission to make an inquiry into a definite matter of public importance and if that inquiry into the definite matter of public importance has not become unnecessary or is still required to be carried out, can it be said, as a matter of law, that the State Government can still form an opinion that the continued existence of the Commission is unnecessary? In our opinion, the provisions of Section 7(1)(a) cannot be read divorced from the language of Section 3(1). In our, opinion, as a matter of law, under Section 7(1)(a), it cannot be said that if the holding of the inquiry into the definite matter of public importance continues to be necessary the continued existence of the Commission is unnecessary.
46. In this connection Mr. Vakil urged before us that though the inquiry into the definite matter of public importance may still continue to be necessary, the State Government may form an opinion that that inquiry through the instrumentality of the Commission of Inquiry is no longer necessary. It may be pointed out that when a Commission is appointed, the Government forms the opinion that it was necessary to inquire into and investigate into a definite matter of public importance. If the Government's discretion under Section 7(1) regarding the continued existence of the Commission being unnecessary is divorced from the necessity which was before the Government at the time when it appointed the Commission, a great deal of abuse is possible without any check being placed upon it. In a Parliamentary democracy or even in a Presidential form of democracy, the political set-up which was in existence at the time when the Commission of Inquiry is set up may change and a different political party or a different political set-up may appear subsequently. Even though subsequent political party or set-up may feel that the inquiry into the definite matter of public importance is still necessary, it can, if Mr. Vakil's argument is correct, say that the inquiry through the instrumentality of the Commission is no longer necessary. In our opinion, looking to the words of Section 7(1)(a), namely, 'continued existence of the Commission is unnecessary' it is not possible to read those words to mean 'continued inquiry through the instrumentality of the Commission is unnecessary.' If the inquiry is still necessary, then the original necessity which necessitated the appointment of the Commission to make inquiry into the definite matter of public importance, exists and the existence of the Commission to make that inquiry and to complete that inquiry cannot be said to be unnecessary. Therefore, so long as the necessity of making an inquiry into the definite matter of public importance continues, it cannot be said that, as a matter of law, the continued existence of the Commission is unnecessary. The restoration of public confidence which has been disturbed because of the happening of a major event in the life of the community is one of the major objects of appointing a Commission of Inquiry. This is clear from the observations of Beg, C.J. and Chandrachud, J., in the case of State of Karnataka v. Union of India (Supra). If the Commission of Inquiry which was appointed with the object of restoration of public confidence and having all the matters thoroughly investigated is to be discontinued under Section 7(1)(a), as a matter of law, it can only be said that the continued existence of the Commission is unnecessary if the subsequent events show that restoration of that public confidence is no more a matter of importance. Mr. Vakil appearing on behalf of the State Government and Mr. J.R. Nanavati for the respondents who are supporting the Government, urge before us that the words 'so to do' in sec' 3(1) go the words 'appointment of the Commission of Inquiry' and that indicates that the question of necessity of having an inquiry made into any definite matter of public importance is not a question of necessity felt by the State Government under Section 3(1) at the time of appointing the Commission. In our opinion, appointment of the Commission under Section 3(1) is for the purpose of making an inquiry into any definite matter of public importance. If inquiry in to the definite matter of public importance is not necessary, the purpose of making that inquiry through a commission is also not necessary and if that is so, it cannot be said that the Government concerned is of the opinion that it is necessary to appoint a Commission to inquire into that particular definite matter of public importance. The only way of interpreting Section 3(1) is to interprete it to read that the State Government must form an opinion that it is necessary to make an inquiry into a definite matter of public importance and secondly, it must form the opinion that it is necessary to have that inquiry made by a Commission of Inquiry appointed under the Act. As Beg, C.J. pointed out in paragraph 21 at page 27 in State of Karnataka v. Union of India (Supra), if the Commission of Inquiry is presided over by an individual of unquestionable integrity and independence, the question whether the commission is either unnecessary, except as a weapon of political warfare, as well as any doubts about whether it could be or was to be misused, must be dismissed as unsustainable. In that particular case one Commission was appointed by the State of Karnataka and other Commission was appointed by the Union of India and in that context, Beg, C.J. observed:
The State Government must itself be deemed to admit that circumstances necessitated the appointment of a Commission, by appointing its own to inquire into analogous matters which deserved investigation due to their public importance.
Thus it is obvious that so long as there is a definite matter of public importance, the State Government can under Section 3(1) form an opinion that the circumstances necessitated the appointment of a Commission to inquire into that definite matter of public importance. The purpose of making inquiry into any definite matter of public importance cannot be divorced so far as the necessity of the situation is concerned from the necessity to appoint the Commission of Inquiry.
47. Under these circumstances, we hold as a matter of interpretation of Section 7(1)(a), that if the purpose of making the inquiry into any definite matter of public importance still continues to exist as it existed at the time whin the Commission of Inquiry was originally appointed under Section 3(1), it cannot be said that the continued existence of the Commission is unnecessary.
48. If the State Government has proceeded on the footing that though there was a necessity to inquire into the definite matter of public importance for making inquiry into which the Commission was originally appointed, in law it cannot form the opinion that the continued existence of the Commission is unnecessary. To read the provisions otherwise would be to render a Commission of Inquiry a foot-ball or a play thing in the hands of the political executive.
49. This takes us to the question of the scope of judicial review and lengthy arguments were advanced before us as to the scope of judicial review. In India, so far as Indian decisions are concerned, there are three decisions of the Supreme Court on this point. The first is the decision in Barium Chemicals Ltd. v. Co. Law Board : 1SCR898 . In that case Shelat, J. pointed out that the formation of opinion by the Central Government in that particular case was purely a subjective process and there could also be no doubt that since the Legislature has provided for the opinion of the Government and not of the Court, such opinion could not be challenged on the ground of propriety, reasonableness or sufficiency. Mr. Vakil has urged before us that the decision in Barium Chemicals' case (supra) should not be relied upon for considering the scope of judicial review in a matter of discretion of the Government because the language of the section of the Companies Act provided for in the opinion of the State Government that should be circumstances suggesting as provided in Sub-clauses (1) and (2) of Clause (b) of Section 237 of the Companies Act. Shelat, J. proceeded on the footing that the existence of circumstances was an objective fact whereas formation of the Government's opinion on those objective facts was a subjective matter. At the end of paragraph 64 at page 325 he observed:
If it is shown that the circumstances do not exist or that they are such that it is impossible for any one to form an opinion therefrom suggestive of the aforesaid things, the opinion is challengeable on the ground of non-application of mind or perversity or on the ground that it was formed on collateral grounds and was beyond the scope of the statute.
However, this criticism of Shelat, J.'s judgment overlooks paragraph 65 which is in these terms:
Even assuming that the entire Clause (b) is subjective and that the clause does not necessitate disclosure of circumstances, the circumstances have in the present case been disclosed in the affidavits of the Chairman and the other officials. Once they are disclosed, the Court can consider whether they are relevant circumstances from which the Board could have formed the opinion that they were suggestive of the things set out in Clause (b).
Hidayatullah, J. as he then was, agreed with Shelat, J. in the following proposition:
It is not reasonable to say that the clause permitted the Government to say that it has formed the opinion on circumstances which it thinks exist.
Bachawat, J. who with Shelat, J. and Hidayatullah, J. formed the majority agreed with the final conclusion in allowing the appeal of the company. This decision of the Supreme Court in Barium Chemicals' case has been thus explained by the Supreme Court in Rohlas Industries Ltd. v. S.D. Agarwal : 3SCR108 . In that case the Supreme Court was concerned with some of the same provisions, namely, Section 237(b) of the Companies Act. Hegde and Sikri, JJ. disapproved in view of Sarkar, C.J. and Mudholkar, J. in Barium Chemicals' case and approved the view of Hidayatullah and Shelat, JJ. in Barium Chemicals' case. It must be pointed out that by the time of Supreme Court decided Rohtas Industries case (supra), the House of Lords had delivered its decision in Padfield v. Minister of Agriculture, Fisheries and Food 1968 A.C. 997. Hegde, J. in his judgment in paragraphs 30 to 35 extensively from the speeches of some of the Law Lords in Padfield's case (supra) and he cited the following passage from the speech of Lord Hodson:
If the Minister has a complete discretion under the Act of 1958, as in my opinion, he has the only question remaining is whether he has exercised it lawfully. It is on this issue that much difference of judicial opinion has emerged, although there is no divergence of opinion on the relevant law. As Lord Denning M.R. said citing Lord Greene M.R. in Associated Provincial Picture House Ltd. v. Wednesbury Corpn. 1947-2 All E.R. 683 at p 632: 'a' person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to the matter that he has to consider.
In Rohtas Industries' case it was pointed out by Hegde, J. at the end of the paragraph 39 at page 719:
In other words the existence of the circumstances in question is open to judicial review though the question formed by the Government is not amenable to review by the courts. As held earlier the required circumstances did not exist in this case.
Again the position was considered by the Supreme Court in the case of M.A. Rasheed and Ors. v. The Stale of Kerala : 2SCR93 . In paragraph 7 it has been pointed out by Ray C. J. speaking for the Supreme Court:
Where powers are conferred on public authorities to the exercise the same when 'they are satisfied' or when 'it appears to them' or when 'in their opinion' a certain state of affairs exists or when powers enable public authorities to take 'such action as they think fit' in relation to a subject matter, the Courts will not readily defer to the conclusions of an executive authority's opinion as to the existence of a matter of law or fact upon which the validity of the exercise of the power is predicated.
In paragraph 9 it has pointed out:
Administrative decisions in exercise of powers even if conferred in subjective terms are to be made in good faith on relevant consideration. The courts inquire whether a reasonable man could have come to the decision in question without misdirecting himself on the Law or the facts in a material respect. The standard of reasonableness to which the administrative body is required to conform may range from the courts own opinion of what is reasonable to the criterion of what a reasonable body might have decided. The courts will find cut whether conditions precedent to the format-on of the opinion have a factual basis.
In paragraph 10 of the report, Ray C. J. after citing the Rohtas Industries case (supra), observed:
If it is established that there were no material at all upon which the authority could form the requisite opinion, the Court may infer that the authority passed the order without applying its mind. The opinion is displaced as relevant opinion if it could not be formed by any sensible person on the material before him.
Mr. Vakil's effort has been to show that the views of Shelat, J. in Barium Chemical case (supra) was the view of a minority judge and that in view of the decision of the Supreme Court in Rustom Cavasjee Cooper v. Union of India : 3SCR530 , where a Bench of nine judges of the Supreme Court considered the provisions of Article 123 and there also the question was of existence of circumstances, Shah, J. speaking for the majority of the Supreme Court Judes pointed out that the existence of circumstances was for the subjective satisfaction of the President of India under Article 123 of the Constitution. It must be pointed out that in that particular case the subjective satisfaction of the President was under Article 123 at the time of issuing the Ordinance. It is true that in paragraph 23 of the Judgment Shah J. speaking for the majority at page 587 pointed out:
Power to promulgate such Ordinance as to the circumstances may appear to the President, it require, it exercised - (a) When both Houses of Parliament are not in session; (b) the provision intended to be made is within the competence of the Parliament to enact; and (c) The President is satisfied that circumstances exist which render it necessary for him to take immediate action. Exercise of the power is strictly conditioned. The clause relating to the satisfaction is composite: the satisfaction relates to the existence of circumstances, as well as to the necessity to take immediate action on account of those circumtances. Determination by the President of the existence of circumstances and the necessity to take immediate action on which the satisfaction depends, is not declared final.
Relying upon this passage in Shah's, J. judgment Mr. Vakil contended that in as much as Shelat, J. in Barium Chemicals' case (supra) proceeded on the footing that the existence of circumstances was an objective fact though the language of Section 237(b) of the Companies Act was similar to the language of Article 123 of the Constitution decision of Shelat, J. in Barium Chemical Co.'s case should not be considered good law. If the matter had rested with the decision in Barium Chemicals' case only we might have considered the matter but in Rohtas Industries' case (supra) as also in the case of M.A. Rasheed (supra) the same position has been reiterated. It may be pointed out that in Hochtief Gammon v. State of Orissa : (1975)IILLJ418SC , Alagiriswami J. speaking for the Supreme Court described the decision of the House of Lords in Padfield v. Minister of Agriculture (supra) as a land-mark in the history of the exercise by Courts of their powers of surveillance, and at page 2234 in paragraph 12 Alagiriswami, J. observed:
The Principle deducible from the decisions of this Court and the above decision of the House of Lords which, though not binding on us, appeals to us on principle tray be set out as follows:
13. The Executive have to read their decisions by taking into account relevant considerations. They should not refuse to consider relevant matter nor should take into account wholly irrelevant or extraneous consideration. They should not misdirect themselves on a point of law. Only such a decision will be lawful. The courts have power to see that the Executive acts lawfully. It is no answer to the exercise of that power to say that the Executive acted bona fide nor that they have bestowed painstaking consideration. They cannot avoid scrutiny by courts by failing to give reasons. If they give reasons and they are not good reasons, the court can direct them to reconsider the matter in the light of the relevant matters, though the propriety, adequacy or satisfactory character of those reasons may not be open to judicial scrutiny. Even if the Executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts.
Again in Swadeshi Cotton Mills v. Union of India : 2SCR533 the entire case law was cited by the Supreme Court so far as the principle of judicial review in matters of exercise of discretion by the executive are concerned. In paragraph 57 majority of the learned Judges consisting of Sarkaria and D.A. Desai, J.T. observed:
It cannot be laid down as a general proposition that whenever a statute confers a power of an administrative authority and makes the exercise of that power conditional on the formation of an opinion by that authority in regard to the existence of an immediacy, its opinion in regard to that preliminary fact is not open to judicial scrutiny at all. While it may be conceded that an element of subjectivity is always involved in the formation of such an opinion, but, as was pointed out by this Court in Barium Chemicals (ibid), the existence of the circumstances from which the inferences constituting the opinion, as the sine qua non for action, are to be drawn, must be demonstrable and the existence of such 'circumstances', if questioned, must be proved in least prima facie.
Thus, the statement of Law by Lord Denning in his Book 'The Discipline of Law' in Chapter 6 at page 97 must be held to set out the correct legal position:
If it appears to the Secretary of State? This, in my opinion, does not mean that the Minister's decision is put beyond challenge. The scope available to the challenge depends very much on the subject-matter with which the Minister is dealing. In this case I would think that if the Minister does net act in good faith, or if he acts on extraneous considerations which ought not to influence him, or if he plainly misdirects himself in fact or in law, it may well be that a court would interfere.
Therefore judicial review can be had if the decision in exercise of the discretion is not in good faith or if the authority concerned has acted on extraneous considerations which ought not to influence him or if the authority has plainly misdirected himself in law or in fact - or if the decision is such as no reasonable person could have arrived at. So far as the question of judicial review is concerned, De Smith's judicial review of Administrative Action, Fourth Edition, summarises the position in England at page 297:
Broadly speaking, however, one can say that the Courts will show special restraint in applying tests of legality where; (i) a power is exercisable in 'emergency' conditions; an executive power, the exercise of which is not subject to appeal, is used to exclude, remove or deport aliens or other non-patrial persons on policy grounds; or (iii) the 'policy' content of the power is large and its exercise affects large numbers of people. Their reluctance to intervene is likely to diminish the more closely the wording and context of the power approximate to those of a discretion typically exercised by a tribunal. The willingness of the courts to intervene may also depend on the nature of the interest affected by the exercise of discretion; for example, the Citizen's interest in the vindication of public rights, the alien's interest in entering or remaining after his leave has expired in the United Kingdom and the individual's interest in not being adversely affected by an exercise of discretion that has no final effect upon his rights, do not appear readily to attract judicial intervention.
But as De Smith pointed out at page 292 under the heading 'Where the connection between the subject-matter of the power to be exercised and the purpose prescribed by statute is expressed to be determinable by the opinion of the competent authority', the decision of the House of Lords in Padfield's case (supra) is an important land-mark in this area of administrative law and in the case of Padfield's case the House of Lords interfered because the House of Lords came to the conclusion that the Government had acted ultra vires by taking into account factors that were likely to usurp its power in a way calculated to frustrate the policy of the Act. It has also been pointed out that the Court appealed in Congreve v. Home Office 1976 Q.B. 629 and the House of Lords in Secretary of State for Education and Science v. Tomeside 1977 A.C. 1014 have set aside as ultra vires the exercise of discretion that included a substantial subjective element. It was also pointed out that another feature of the recent decisions has been the willingness of courts to assert their power to scrutinise the factual bases upon which discretionary powers have been exercised. As against this views which started in England under the activism of Lord Denning, our attention has been drawn by Mr. J.R. Nanavati to the Book 'Justice-Lord Denning and the Constitution' edited by P.L. Robson and P. Watchman at page 168 of the Book:
The judgment selected for inclusion in The Discipline of law show Lord Denning as very ready to assert judicial control over the exercise of discretionary powers. On some occasions Lord Denning has, however, shown a marked reluctance to interfere with executive discretion. In Azam, for example, His Lordship declared that the power to send back illegal immigrants was 'entirely a matter for the Secretary of State'. 'Parliament has', he said entrusted this decision to the Home Secretary and not to the courts, it has left it to the discretion. It is better left there.... This is not a justifiable matter for the courts. It is an administrative matter for the Secretary of State'. In Schmidt Lord Denning said of a refusal by the Minister to extend an alien's stay in Britain 'I think that the Minister can exercise his power for any purpose which he considers to be for the public good or to be in the interests of the people of this country'.
And at page 170 the learned authors observed:
A clue to the explanation of the apparent contradictions is perhaps to be found in Lord Dennings statement in ASLEF that the scope for challenge of ministerial action 'depends very much on the subject matter with which the Minister is dealing'. The decision as to whether or not to intervene is, it would seem, made on policy rather then legal grounds. The cases in which the courts have quashed decisions of Ministers represent, says Professor Griffith, 'the judicial desire...to protect the individual against political policies which are seen by the judiciary to be contrary to the public interest'. Where, on the other hand, a Minister is seen to be acting in a way which accords with the judiciary's conception of the public interest, the court will not intervene.
And it has been pointed out, as was summarised in the passage which we have cited above, the Courts in England do make a distinction in alien's cases where over-stay etc. and where the questions of emergency, lapse of stay are concerned. However, from all the decisions which have been cited before us and particularly in the light of the decisions on either side, the principles which emerge are that if there is a matter of discretion of the Government or of the authority and if matters which are irrelevant are taken into consideration or matters which are relevant have been left out of consideration or if the decision is arrived at mala fide, it may be mala fide in law or mala fide in facts, or if the decision has been arrived at by misdirecting oneself on fact or law, or if the decision is such as no reasonable person can ever arrive at, the Court can strike down that decision in exercise of powers of judicial review. To what extent the matter is subjective or to what extent the matter is objective has to be determined by splitting up the different provisions of the sections with each of which those cases are concerned. We may point out here the decisions which were cited on one side of the other of this aspect of the case. Mr. Tanna for the petitioners relied on the decisions of House of Lords in 1977 A.C. 1014 (supra), the decision of the Court of Appeal in Congreve v. Home Office 1976 Q.B. 629 (supra) and the decision in 1972(2) Q.B. 342, and also the decision in Laker Airways' case 1977(1) Q.B. 643. The effort on the part of the Government has been to show that all the observations, and the wide ranging observations of Lord Denning have no application in India. But even from the Indian decisions which we have referred to above, the principles have been set out above clearly emerge.
50. Mr. Vakil for the State Government before us urged that if there is a recital that the subjective satisfaction or the subjective opinion has been reached by the State Government, the same has to be taken into account and for this purpose he relied upon the observations of the Federal Court in Emperor v. Sibnath Bcmerjee ; Emperor v. Sibnath Bcmerjee and : 1SCR763 paragraphs 24 and 28 to 32 onwards. Now the racital is undoubtedly there in the instant case that the Government had formed the opinion that the continued existence of the second respondent Commission was unnecessary. If the controversy between the parties has been whether the Government in fact has reached such a subjective opinion or not, the recitals in the impugned notification would undoubtedly have a great deal of bearing on that controversy. But we are not concerned with the controversy as to the factum of existence of the opinion of the Government in the instant case. Government has undoubtedly formed that opinion but the question is whether that opinion of the Government is open to judicial review? That is the real controversy before us and hence we have not gone into the decisions cited by Mr. Vakil on the question of value of the recitals in the impugned notification. Mr. Vakil urged that when in the context of subjective satisfaction or opinion it has been stated that it can be challenged on the ground that no reasonable person or authority could have formed the opinion, it amounts to slating that there is no evidence to form the opinion. He contended that this test does not mean that the Court can examine the subjective opinion by examining the unreasonableness of the grounds for the opinion. A number of authorities were cited by Mr. Vakil regarding this submission as to what can be said to be perversity, but it is well settled that if the formation of opinion by the authority is perverse in the sense that no reasonable person or authority could have formed that opinion, the decision can be challenged but the challenge on the ground that there is no evidence whatsoever is a different challenge. If there is no altogether evidence it may be, as has been pointed out in some of the authorities, a question of non-application of mind but it is not possible for us to accept Mr. Vakil's contention that the ground that no reasonable person or authority could possibly form the opinion that the particular authority in a particular case has done, is the same thing as the ground of no evidence. In support of this contention Mr. Vakil relied upon the decision of the Supreme Court in V. Ramchcmdra v. Ramlmgam Chettiar : 3SCR604 , the Supreme Court in the context of Section 100 of the Civil Procedure Code on the general law observed: '...we are inclined to treat this decision as supporting the proposition that the High Court can interfere with the conclusion of fact recorded by the lower appellate Court if the said conclusion is not supported by any evidence.' He also relied on the decision of the Supreme Court in The Stale of Bombay v. Alma Ram Shhdhar Vaidya : 1951CriLJ373 . That was a case of preventive detention and in that case Kania, C.J. speaking for the majority of the learned Judges observed in paragraph 5 at page 160:
The satisfaction of the Government, however, must be based on some grounds. There can be no satisfaction if there are no grounds for the same. There may be divergence of opinion as to whether certain grounds are sufficient to bring about the satisfaction required by the section. One person may think one way, another the other way. If, therefore, the grounds on which it is stated that the Central Government or the State Government was satisfied are such a rational human being can consider connected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fide, cannot be challenged in a Court.
In Barium Chemicals' case (supra) and the observations in Rohtas Industries case (supra) the principle laid down was that subjective opinion can be challenged on the ground of mala JidesAegal or factual-or on the ground that it is such that no reasonable person or authority could have formed that opinion, or on the ground that it is wholly irrational or perverse in that there is no material or ground upon which the authority could form the subjective opinion. Mr. Vakil for the State Government conceded that these were proper grounds for judicial review. Ultimately therefore, on the facts of this case in the light of the reasons stated by the Minister in the statement issued on March 17, 1981, we have to examine the scope of judicial review, bearing in mind all the time that it is not for us to examine the propriety, reasonableness or sufficiency of the subjective opinion of the government. We are not here concerned with asking ourselves whether the conclusion reached by the State Government is a conclusion that we ourselves would have reached. But if we come to the conclusion that the opinion of the State Government on the basis of which the impugned notification was issued is such no reasonable person could ever have arrived at, or that it is mala fide in law, or that it is a result of Government misdirecting itself on facts or law, we can certainly interfere by exercising our powers of judicial review.
51. We have already set out earlier the translation of the whole statement of the Minister for Irrigation, Government of Gujarat. An analysis of the statement shows that what weighed with the Cabinet Sub-Committee and thereafter apparently with the Government were the following factors:
(1) From the reports obtained by the Commission till 9th March 1981 (because that was the day on which the Sub-Committee decided that the Commission should be discontinued), the conclusions deduced was that because of heavy rains, water had passed over the earthen embankment of the darn and that caused the collapse of the earthen portion of the dam. According to the statement, this was established by the flood marks noticed by the Commissioners Rao and Ashok Kumar, and according to the statement, reports of the technical experts had shown that no defect whatsoever had been found in the construction of the dam or in the design or in the Gates of the dam.
(2) The second factor which weighed with the Government was that because of the time taken between the collapse of the dam on August 11, 1979 and 9th March 1981, 18000 acres of land under the command area of Machhu-2 Dam wore remaining without irrigation and problem of salinity of; the soil which already existed was becoming more acute. Moreover, drinking water to Morvi Town had to he supplied until Machhu-2 Dam could be constructed from Machhu-1 Dam and consequently irrigation from Machhu-1 Dam was being affected. The scheme for supplying drinking water to Malia and other villages down-stream from Morvi could not be put into force because of the lack of Machhu-2 Dam.
(3) The third factor which weighed with the Government was that in connection with this Commission the Government had spent nearly forty lacs of rupees and it was likely that the final figure might come to rupees one crore. It has also been mentioned that most of the Members of the Legislative Assembly had entertained the feeling that instead of making the matter a prestige issue, the Commission should be discontinued with immediate effect and that the Members of the Legislative Assembly had expressed these feelings on the floor of the House.
52. A great deal of controversy has gone on before us by Mr. Tanna urging before us on behalf of the petitioners that it was the Government which was at fault for the delay that had taken place in the Commission completing its inquiry and making the report. At least as regards item (a) of the Terms of Reference and item (c) of the Terms of Reference so far as it related to item (a), as will be recalled, by the notification of August 27, 1980 the State Government had asked the Commission to take up for inquiry first the term of reference (a) and term of reference (c) in so far as it concerned term of teference (a). Mr. Vakil on the other hand, representing the State Government, has urged that the delay had taken place because of the vast scope of the inquiry before the Commission which had opened up after the Commission started its work and after various reports from different experts had been called for. Mr. Vakil very strongly urged that counsel for the Commission had asked the State Government experts Mody and Modhwadia to go in for exercises which should have been carried out by the Commission's own experts and the controversy arising from CMP 5 of 1981 discloses how the Commission's order passed from time to time had delayed the compliance on the part of the Government with the time schedule laid down by the Commission for the completion of its work. It is not necessary for us to examine in the present case whether this assertion on the part of the petitioners and the refutations on the part of the Government and the counter-challenge or the counter-assertion on the part of the State Government are true or not. The fact remains that by 17th March 1981 the Commission had not started with the cross-examination of the witnesses. It must be pointed out that in view of the affidavits which were to be treated as examinations-in-chief of the different witnesses concerned and in view of the fact that the subject to privilege being claimed in any particular matter, all the files of the Government were treated as part of documentary evidence before the Commission, what remained was the cross-examination of the different witnesses for the Government and subsequently the cross-examination of the other witnesses by the Government advocates. It is true that, to some extent, the problem of irrigation for land within the command area of Machhu-2 Dam has arisen, but if the Commission was appointed for the purpose of examining the conception, construction, design and maintenance of Machhu-2 Dam as originally constructed, the investigation by the Commission in the light of all relevant materials was necessary. Hydrology data, both regarding the flood of August 11, 1979 and the hydrological data regarding the operation of the Gates were absolutely necessary for the purpose of arriving at any conclusion regarding any defect or otherwise in the design construction and maintenance of the dam. Because of the various exercises which were necessary, time was bound to be taken up and looking to the importance of the points on which Commission was asked to make an inquiry, a thorough inquiry into all these different aspects was called for. That thorough inquiry was bound to take time. It is only in the light of the hydrological data and the report of Dr. Satish Chandra (and Dr. Satish Chandra had not make his report before 17th March 1981) and in respect of which I.C. Gupta's report was not made available to the State Government till 17th March 1981, that any or reasonable person adequately informed, could form an opinion regarding the correctness or otherwise in the conception, design, construction and maintenance of Machhu-2 Dam and in the absence of the hydrological reports, it is difficult to conceive how any reasonable person could have come to the conclusion, even a tentative conclusion, that no defect whatsoever had been found in the design, construction or the Gates of the dam, as the Cabinet Sub-Committee and as the Cabinet of the State Government undoubtedly did as disclosed by the statement. The question of the passage of time since the appointment of the Commission, though the factor seems to have weighed with the Legislature as disclosed by the speeches on the floor of the House or the question of supplying drinking water to Morvi Town and Malia and other villages down-stream, have to be judged in the light of what was at stake in the inquiry and in the result of the inquiry before the Commission. This factor of the passage of time is undoubtedly there. It must be emphasized that this particular Commission was not appointed in pursuance of any resolution passed by the State Legislative Assembly. It was appointed under Section 3 by the State Government because the Government was of the opinion that it was necessary so to do and therefore appointed the Commission to make an inquiry into this definite matter of public importance.
53. Mr. Vakil stated before us that salinity in the areas of Machhu-2 Dam was likely to return and be felt as the irrigation water was not made available promptly. But it must be realised that the Government by way of preparatory stage from 1955 to 1967 was preparing and studying upon the data for deciding upon the proper site and the mode and method of construction of Macbhu-2 Dam and it took five years for the Government to complete the dam. It is true that 12 years from 1955 to 1967 were necessary for all the above work and the construction of the dam will take approximately live years in the light of the time taken when Machhu-2 Dam was constructed. Mr. Vakil is right therefore when he says that when the question of delay is taken into consideration and demand for prompt construction of the new dam is taken into consideration, what is meant is that the design for the dam that has to replace the dam that burst should be taken up in hand, so that the benefit of Machhu -2 Dam would, when newly constructed, be made available to Morvi Town and Malia and other villages down-stream for drinking water and to the land in the command area of Machhu-2 Dam for irrigation purpose be made available as early as possible.
54. The third item which weighed with the State Government was the question of expenses incurred or likely to be in connection with the second respondent Commission. Mr. Tanna on behalf of the petitioners urged that the Court should go into the question of the break-up of the total expenditure of forty lacs rupees. We are not concerned in the present case to examine whether forty lacs rupees or any such lesser amount as urged by Mr. Tanna had been incurred by the State Government in connection with the actual work of the Commission or for the Commission itself. Even if the State Government had incurred expenses on its own staff and some allowances by way of Xeros printing machines or motor-cars required in connection with the work of the Commission, it is clear that on the State Government's affidavit as also the statement, more then Rs. 40,00,000/- in all had been spent by the State Government in connection with the work of the Commission. However, it must be borne in mind that looking to the vastness of the damage done to the property and human beings, a thorough deep probe was necessary by the Commission and both time and money were required to be spent for the inquiry by the Commission. It must not be forgotten that the report of the Commission would have a bearing on the future design of Machhu-2 Dam and also on the question of maintenance and construction of earthen dams elsewhere in the State and in the circumstances like these when property worth more then one hundred crores was destroyed in Morvi Town as a result of the. flood on August 11, 1979, it cannot be said that one crore of rupees was too great an amount. However, it must be recognised that the question of expenditure is a relevant factor which the State Government could have taken into consideration. Similarly, the question of time taken by the Commission to deal with the matter delayed to that extent the starting of the construction of the work in connection with new Machhu-2 Dam, was also a relevant factor. However, we find that the State Government's tentative conclusion regarding the cause for the collapse of the dam, namely, that because of the heavy rains made the heavy flood overtop the earthen portion of the dam is reached without taking into consideration the report of hydrological experts I.C. Gupta and Satish Chandra. It is impossible to say that any reasonable person with a fairly good knowledge of the factors involved in the construction of dams would have come to the tentative conclusion in the absence of hydrological expert's report. Therefore, in our opinion, the conclusion of the State Government relying on the reports received till March 9, 1981, that the collapse was due to the natural causes, namely, heavy flood waters overtopping the earthen dam leading to the collapse of the earthen dam and that there was no defect whatsoever in the construction, in the Gates and in the design as such, is such as no reasonable person dealing with this matter could ever have arrived at. Therefore, the final conclusion that the continuance of the Commission had become unnecessary based on the tentative conclusion of the State Government was vitiated since it was such as no reasonable person could ever have arrived at. In the statement made by the Irrigation Minister on March 17, 1981, the aspect of the experts' reports received till then has been emphasised, but the aspect of hydrological expert's report not being received and what impact the report of the hydrology experts would have on the reports of other experts which were received till then, has been totally overlooked by the State Government. The statement of facts and opinions that the Government filed in this case clearly goes to show that the calculations based on hydrological data and hydrology expert's opinion have a material bearing on the design, site, the mode of construction of a particular dam. Yet in the absence of the hydrology expert's opinion and report, the State Government came to the tentative conclusion about there being no defect whatsoever in the design, construction or the Gates of the dam and formed the opinion that the further continuance of the Commission was unnecessary.
55. Mr. Tanna for the petitioners contended before us that the Com mission was about to enter into an inquiry regarding critical and highly critical areas of the inquiry before it and the State Government did not take into consideration those critical and highly critical areas before coming to its conclusion that the further continuance of the Commission bad become unnecessary. Now the statement shows that the Sub-Committee of the Cabinet had taken into consideration the reports received by the Commission; it had also taken into consideration the statement of facts and opinions filed by the State Government, the affidavit of 67 officers of the State Government, 146 affidavits filed by the general public and the Sub-Committee had been appointed by the State Government to make a detailed inquiry into the delay of the proceedings before the Commission. It is therefore not correct to say that the State Government had not taken into consideration the aspect of critical and highly critical areas or that it had not properly advised itself on that aspect of the case. The Sub-Committee had been appointed, as the affidavit filed on 22nd May 1981 being the affidavit of Mr. B.R. Budhrani referred to earlier, shows to transact business on behalf of the Cabinet in relation to the inquiry before the Commission and the Cabinet meeting held on July 7, 1980 had discussed the pros and cons of the inquiry pending before the Machhu-2 Dam Inquiry Commission. It would therefore not be correct to assume, as Mr. Tanna asks us to assume that this aspect of the critical and highly critical areas of inquiry before the Commission was not present to the mind of the Cabinet Sub-Committee when it came to the conclusion that the continued existence of the Commission had become unnecessary.
56. However, there is one aspect of the statement made by the Minister which is highly material for our decision and it is this that Dr. Y.K. Murti who was the assessor associated with the second respondent Commission, was constituted an administrative committee of one person to go into the very questions which were before the Commission and which the Commission was asked to inquire into. Therefore it becomes clear from the last two paragraphs of the statement that the Government required the report of Dr. Y.K. Murti in connection with the technical aspects of the case. Therefore, even according to the statement of the Minister made on 17th March 1981 as disclosed by the last two paragraphs of the statement, it was necessary to have an inquiry into the technical aspects regarding the conception, construction, design and maintenance of Machhu-2 Dam and also to make recommendations on the technical aspects so far as the future was concerned. Similarly, as regards Clause (b) of the Terms of Reference, namely, steps taken immediately after the collapse but before the flood waters reached the affected areas, Dr. Ravi Mathei the other assessor associated with the Commission was proposed to be appointed, again as an Administrative Committee or Administrative Inquiry Commission. Thus, the statement of the Minister makes it abundantly clear that an inquiry into all the matters which were to be inquired into and which were referred to the Commission and for which it was constituted, was still necessary in the opinion of the State Government. The only thing is, instead of the Commission, the two assessors who were associated with the Commission were asked to make administrative inquiries and submit their reports. Thus, though the inquiry was necessary the State Government came to the conclusion in the light of the provisions of Section 7(1) that the continued existence of the Commission was unnecessary. We have pointed out earlier when we dealt with the interpretation of Section 7(1)(a) in the light of the provisions of Section 3(1) of the Act, that if it is necessary to continue the inquiry which has been entrusted to the Commission of Inquiry appointed under Section 3(1), it cannot be said as a matter of law that the continued existence of the Commission is unnecessary. The opinion, therefore, of the State Government that the continued existence of the Commission is unnecessary is because of the fact that the State Government has misdirected itself on the correct legal position. Since the opinion formed by the State Government as a result of the misdirection on a point of law, it is open to us on a judicial review that decision, to quash the decision.
57. There is a still further aspect of the matter which is required to be referred to in this case and that is the question of the assurances given by the learned Advocate General on behalf of the State Government to the Commission that time for the Commission to complete its inquiry and making its report would be extended as and when required. These assurances of the learned Advocate General are set out in the orders of the Commission Exhibit 107 dated September 5, 1980 and Exhibit 149 dated December 16, 1980. Mr. Tanna urged before us that because of these assurances an estoppel arose against the State Government. He urged in the light of the decisions of the Supreme Court in Century Spinning & v. The Ulhasnagar Municipal Council : 3SCR854 , Union of India v. Indo Afghan Agencies A.I.R. 1968 S.C. 718 and Turner Morrison and Co. Ltd v. Hungerford Investment Trust Ltd. : 85ITR607(SC) , that the Government was estopped by way o promissory estoppel from exercising its powers under Section 7(1) and discontinuing the Commission in exercise of this power. Mr. Vakil on the other hand urged that there cannot be estoppel against a statute and that there is no estoppel against the State Government in its governmental or sovereign business and in that connection he relied upon the observations of Ray, C.J. in N. Ramanathe Pillai v. The State of Kerala : (1973)IILLJ409SC and that this position has been recognised also in Excise Commissioner U.P., Allahabad v. Ram Kumar etc. : AIR1976SC2237 and in the Bihar Eastern Gangetic Fishermen Co-uperative Society Ltd. v. Sipahi Singh and Ors. : 1SCR375 . It is true that in Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh and Ors. : 118ITR326(SC) , the Division Bench consisting of Bhagwati and Tulzapurkar JJ. has once again reiterated the doctrine of promissory estoppel, but there is the judgment of a Division Bench in Jit Ram Shiv Kumar v. The State of Haryana : 3SCR689 where the view taken in Motilal Padampat Sugar Mills Co.'s case (supra) has been discussed by the second Division Bench and the view of Bhagwati, J. in Motilal Padampat Sugar Mills Co.'s case (supra) is not accepted. In view of the decision of the Supreme Court in N. Rama Nathe Pillai's case (supra), it cannot be said that the doctrine of estoppel would finally bind the Government but what may be observed at this stage is what Bose, J. speaking for the Supreme Court in The State of Assam v. Keshab Prasad Singh : 4SCR865 stated. That was a case of fishery's licence which was sought to be canncelled by the State Government after a commitment had been made in favour of the respondent before the Supreme Court:
But the State Government did not feel itself hampered by any such old fashioned notions regarding the sanctity of engagements.
Mr. Vakil urged before us that all that was assured was that time would be continued, not that the power under Section 7(1) would not be exercised by the State Government. But in our opinion if the assurance was given that time would be extended as and when required for the purpose of enabling the Commission to complete its inquiry and make its report, then, implicit in those assurances was the commitment on the part of the State Government that the power under Section 7(1) would not be exercised so as to frustrate those assurances given to the Commission. It is clear that if those assurances were not complied with and the life of the Commission was allowed to runout by afflux of time before the Commission completed the work, it is most likely that the persons concerned were likely to be held up for contempt of Court because in breach of the assurances times was not extended. Therefore, though the State Government thought it necessary to have an inquiry made on technical aspects and also on the aspects of Clause (b) of the Terms of Reference of the notification of September 10, 1979, it thought it proper to discontinue the Commission. Thus State Government's power to discontinue the Commission under Section 7(1)(a) was exercised for a collateral purpose, namely, to take away the work from the Commission, though inquiry into the other Terms of Reference was felt necessary by the Government, and to ask the two assessors by way of Administrative Committees or Commissions to complete the work on these very Terms of Reference. Under these circumstances, since the decision of the State Government was for a collateral purpose, namely for the purpose of escaping from the consequences of the assurances given on its behalf by the learned Advocate General, exercise of the discretion by the State Government was mala fide in law. We must take it clear that no factual mala fides on behalf of the State Government have been pressed before us. Mr. Vakil was at pains to point out that the present Chief Minister Shri Madhavsinh Solanki was one of the first persons to ask for a judiciary inquiry by way of a Commission of Inquiry after the collapse of Machhu-2 Dam. At that time he was the Leader of the Opposition. Mr. Vakil therefore urged that the present Chief Minister would not be motivated by any improper motives in discontinuing the Commission. Mr. Tanna has not pressed any factual mala fides on the part of the Government in discontinuing the Commission. He has relied on legal mala fides in the sense of the power being exercised for a collateral purpose and he therefore urged that the impugned notification should be quashed and set aside.
58. Our conclusions are:
(1) the opinion arrived at by the State Government that the continued existence of the Commission was not necessary was based only on the reports of the technical experts and other reports available to the State Government till March 17, 1981 and was such as no reasonable person could have arrived at;
(2) The State Government had misdirected itself in law regarding the exact scope of Section 7(1)(a) in the light of the facts of this case and in the light of the decision to have the very inquiry conducted before Dr. Y.K. Murti and Dr. Ravi Mathei and the said decision was vitiated because of this misdirection in law in the light of the facts of this case as disclosed by the Statement of the Minister of March 17, 1981;
(3) The Government had acted mala fide in forming its opinion and coming to the decision to wind up or discontinue the Commission because it wanted to serve a collateral purpose of getting out of the consequences of the assurances given by the Advocate General on its behalf of the Commission. In the light of legal position discussed above, the impugned notification is liable to be set aside on any out of these three grounds.
59. In the light of our three conclusions as above, it is not necessary for us to go into the question whether one of the reasons for arriving at the decision is bad so far as formation of the subjective opinion is concerned. It is also not necessary for us to go into the question of estoppel binding the State Government and numerous other decisions which have been cited before us. It is clear that since our conclusion is that the impugned notification of March 17, 1981 was issued because the State Government formed the opinion that the continued existence of the Commission was not necessary and that opinion was formed mala fide in the sense explained by us above and was formed because of a misdirection on a point of law by the State Government and was such as no reasonable person could ever have arrived at in the absence of the reports of hydrological experts, it is bad and vitiated as illegal and hence impugned notification of 17th March 1981 must be quashed and set aside.
60. We have already dealt with in the course of our judgment with the scope of the powers of the Court under Article 226 of the Constitution to pass ancillary and consequential reliefs to give effect to the main relief which is granted. The main relief granted is that notification of 17th March 1981 is bad because it was vitiated due to the wrong formation of the opinion by the State Government and the consequential relief would be to restore the position of status quo ante the notification of 17th March 1981. On that day the Commission was seized of the Inquiry before it and it was stopped mid-term. It was to continue in existence till 9th June 1981. Therefore, 84 days were available to the Commission to complete its inquiry (14 days of March, 30 days of April, 31 days of May and 9 days of June, in all 84 days). Moreover, 14 days more have elapsed since 9th June 1981 till today when the notification is quashed. Therefore it is in the fitness of things that as a consequential and ancillary relief to make our relief regarding quashing of the notification effective, we direct the State Government to extend the life of the Commission by as many number of days as have been lost because of the impugned notification. During the pendency of this special civil application the Commission could not naturally have continued its work until the notification was quashed. The Commission was stopped abruptly in its work and, in our opinion, it would require 15 days' time to reactivate its work so as to bring the work of the Commission of Inquiry at the state before it was stopped and which prevailed on March 17, 1981. Therefore, a total of 113 days should be given to the Commission to complete its inquiry and to make its report.
61. We therefore issue a direction to the State Government to issue a fresh notification under Section 3 of the Commissions of Inquiry Act, 1952, extending the life of the Commission to October 14,1981, so that the full period of 113 days mentioned above is available to the Commission to complete its inquiry and to make its report (7 days of June, 31 days of July, 31 days of August, 30 days of September and 14 days of October would make up 113 days). The notification to be issued on or before 5.00 P.M. on 24th June 1981 and a copy of that notification to be submitted to this Court on June 25, 1981 we have laid down this time-table for he issuance of the notification under sec, 3 because the Life of the Commission stands extended only upto June 24, 1981 in pursuance of the direction given by this Court on June 9, 1981.
62. We must also point out that even after this period of 113 days which we direct the State Government to make available to the Commission by issuing appropriate notification under Section 3 extending the life of the Commission upto 14th day of Oct. 1981 is given to the Commission the question of the assurances given by the Advocate General to the Commission to extend the life of the Commission as and when necessary will have an important bearing when the period upto we are directing the State Government to extend the life of the Commission expires.
63. In view of the controversies involved in this case and in view of the facts of this case, there will be no order as to costs. Rule is made absolute accordingly to the following effect. The impugned notification of 17th March, 1981 is quashed and set aside and as a consequential and ancillary relief the State Government is directed to extend the life of the Commission to 14th October, 1981.
At this stage, Mr. Vakil applies for certificate under Article 133(1) of the Constitution for leave to appeal to the Supreme Court. In our opinion, all that we have done in this case is to apply the law as laid down by the Supreme Court in its decisions and therefore, there is no substantial question of law of general importance which is needed to be decided by the Supreme Court arising in this case. The oral application is therefore rejected.
65. Similar oral application made by Mr. J.R. Nanavati appearing for some of the respondents is rejected for the same reason.
66. Mr. Vakil applies that the operation of our order should be stayed for a period of four weeks to enable him to obtain appropriate orders from the Supreme Court. In our opinion, this stay for a period of four weeks should be granted but in order to avoid any complications, we grant the stay on condition that the State Government issues the notification under Section 3 of the Commissions of Inquiry Act by 5.00 P.M. on 24th June 1981, extending the life of the Commission for a period of four weeks from 24th June 1981. This extension of four weeks will be without prejudice to the rights and contentions of the patties and during this period the interim orders operative regarding the continuance of the Commission during the pendency of Special Civil Application No. 748 of 1981 will remain. It is obvious that if the Supreme Court does not stay our judgment during this period of interim stay of four weeks, the directions given by us to the State Government will continue to operate and the period of twenty-eight days would be added to the number of 113 days that we have indicated in our judgment.