Motahar Hossain v. Haratosh Chakraborty — 1980 DIGILAW 80 (CAL)

ORDER These applications under Article 226 of the Constitution, have been taken up for consideration together and are disposed of by a common judgment. The petitioner, Dr. Motahar Hossain, in the first petition, was the Minister of State, Home Department, Government of West Bengal, during the period from 31st January, 1975 to 30th April, 1977. The petitioner, in the second petition, was the Chief Minister of the Government of West Bengal during the period from 30th March, 1972 to 30th April, 1977. They both have challenged, in these two applications, notices issued under S. 8B of the Commissions of Inquiry Act, 1952 issued by the respondent no. 2, who is the Secretary of the Commission of inquiry, respondent no. 1. As notices were in identical terms and based on identical grounds, it would be appropriate to et out the relevant portion of the impugned notices which are as follows : WHEREAS as complaint has been made before the Authority vide Copy of Settlement/affidavit and documents mentioned below : AND WHEREAS the Authority is of the opinion that your reputation is likely to be prejudicially affected by the inquiry : You are hereby called upon to file a Statement (with three extra copies) in the form of an affidavit (duty payable under the Stamp Act exempted) duly sworn before an Authority empowered to administer oath, along with such documents on which you may propose to rely and a list of witnesses whom you may like to be examined if and when called upon by the Authority to give oral testimony at any stage of the proceedings, within two weeks from the date of receipt of this notice to the office of the Authority." 2. Along with the notice, a copy of the statement on affidavit sworn by Sm. Abha Chakraborty on 30th September, 1978 and copies of certain detention orders under MISA being the Maintenance of Internal Security Act, 1971 were annexed. These orders were issued by the District Magistrate, Malda. An identical affidavit and identical copies of orders were also served on the second petitioner. On receipt of the said notices, the petitioners wrote letters to the respondent no. These orders were issued by the District Magistrate, Malda. An identical affidavit and identical copies of orders were also served on the second petitioner. On receipt of the said notices, the petitioners wrote letters to the respondent no. 1, the Inquiry Commission to inform the petitioners the grounds upon which the alleged opinion of the Authority had been formed, that the reputation of the petitioners were likely to be prejudicially affected by the enquiry upon which the show cause notices had been issued. The petitioners were informed by subsequent letters that they were given two weeks time to file their statements on affidavits but no ground or opinion upon which such opinion had been formed by the Authority had been served on the petitioners. The petitioners thereupon moved there applications under Article 226 of the Constitution and thereafter I issued the rule nisi and granted certain interim orders. 3. The respondents in these petitions are : Sree Haratosh Chakrabarty, Presiding Officer, Emergency Excesses Inquiry Commission, West Bengal, respondent no. 1, Secretary, Emergency Excesses Inquiry Commission, West Bengal is the respondent no. 2, Secretary, Home Department, Government of West Bengal is the respondent no. 3 and Union of India is the respondent no. 4. The petitioners in this application challenge the notification dated 30th December, 1978 whereby the Commission of Inquiry consisting of Sree Haratosh Chakrabarty, as Presiding Officer was set up to enquire into certain offences. 2, Secretary, Home Department, Government of West Bengal is the respondent no. 3 and Union of India is the respondent no. 4. The petitioners in this application challenge the notification dated 30th December, 1978 whereby the Commission of Inquiry consisting of Sree Haratosh Chakrabarty, as Presiding Officer was set up to enquire into certain offences. The said notification recited that whereas under clause (ii) of paragraph 3 of the Ministry of Home Affairs notification dated 28th May, 1977 the enquiry by the Commission of Inquiry commonly known as the Shah Commission of Inquiry appointed in exercise of the power conferred by S. 3 of the Commissions of Inquiry Act, 1952 was to be in regard to such instances relating to paragraphs 2(a)(i) to (v) of the said notification brought to its notice by the Central Government or a State Government or a Union Territory for enquiry and whereas the Governor being of the opinion that it was necessary to appoint an authority,–– (a) to ascertain the facts and circumstances relating to specific instances of serious nature presenting important or unique features relatable to any of the terms of reference of the Shah Commission of Inquiry which should be brought to the notice of the said Commission; (b) to generally inquire into all other instances as are relatable to one or other of the terms of reference of the said Commission which the Authority might deem fit to enquire into; (c) to inquire into such complaints or allegations as might be referred to the authority or to the State Government by the Shah Commission; set up, on approval of the Central Government s required by S. 11 read with clause (a) of the proviso of sub-s. (1) of S. 3 of the Commissions of Inquiry Act, 1952, an Authority designated as "The Emergency Excesses Inquiry Authority, West Bengal" consisting of Shri Haratosh Chakraborty, a member of the West Bengal High Judicial Service, with the following as the terms of the reference : (a) to ascertain the facts and circumstances relating to specific instances of serious nature presenting important or unique features relatable to any of the terms of reference of the Shah Commission of Inquiry which should be brought to the notice of the said Commission; (b) to generally inquire into all other instances as are relatable to one or other of the terms of reference of the Commission which the Authority may deem fit to inquire, and (c) to enquire into such complaints or allegations may be referred to the Authority or the State Government by the said Commission. And the Authority was to :–– (i) in regard to (a) above, make interim reports and submit final report to the State Government not later than 30th June, 1978 and (ii) in regard to (b) and (c) above, make interim report to the said Commission and submit final report with recommendations for action to be taken not later than 30th June, 1978." And Whereas the term of the said Emergency Excesses Inquiry Authority West Bengal, was extended to 31st December, 1978, by this Department Resolution Nos. 2277-HB dated 30th June, 1978 and 5612-HB dated 29th September, 1978 : And Whereas the said Shah Commission communicated to the State Government that the Authority was not required to send its report to the Commission on complaints or subject-matter of inquiry received by them directly from the complainants or from the State Government it was, in partial modification of this Department Resolution No. 1519-HS dated 18th May, 1978 read with Resolution No. 5612-HS dated 29th September, 1978 directed that the Authority shall,–– (i) in regard to (a) and (b) of the terms of reference, make interim reports and submit final report to the State Government not later than 31st December, 1978, and (ii) in regard to (e) of the said terms of reference, make interim reports to the said Commission and submit final report with recommendations for action to be taken not later than 31st December, 1978. And Whereas the term of the Shah Commission of Inquiry is to expire on 31st December, 1978 and the said Commission desires that such complaints as may be pending with the Authority on 31st December, 1978 may be taken over by the State Government for inquiry through its own agencies. And Whereas the term of the Emergency Excesses Inquiry Authority, West Bengal, shall also expire on 31st December, 1978 and number of complaints received from the Shah Commission or the State Government or from members of the public shall remain undisposed of on that date : And whereas the Governor is of the opinion that it would be a definite matter of public importance to complete the inquiry in respect of the complaints pending. And whereas no Commission of Inquiry has been appointed by the Central Government to inquire into the complaints which shall remain un-disposed of by the Emergency Excesses Inquiry Authority, West Bengal, on 31st December, 1978. And whereas no Commission of Inquiry has been appointed by the Central Government to inquire into the complaints which shall remain un-disposed of by the Emergency Excesses Inquiry Authority, West Bengal, on 31st December, 1978. Now, therefore, in exercise of the power conferred by S. 3 of the Commission of Inquiry Act, 1952 (60 of 1962) the Governor is pleased hereby to appoint, with effect from 1st January, 1979, a Commission of Inquiry consisting of Shri Haratosh Chakraborty, a member of the West Bengal Higher Judicial Service. The terms of reference of the Commission shall be as follows : 1. (a) to deal with the complaints, pending with the Emergency Excesses Inquiry Authority, West Bengal on 31st December, 1978 as if these were preferred before the Commission and ascertain on inquiry whether there occurred– (i) subversion of lawful processes and well-established conventions, administrative procedures and practices, abuse of authority, misuse of powers, excess and/or malpractices committed during the period when the Proclamation of Emergency made on 25th June, 1975 under Article 352 of the Constitution was in force or in days immediately preceding the said Proclamation, (ii) misuse of powers of arrests or issue of detention orders where such arrests or orders are alleged to have been made on considerations not germane to the purposes of the relevant Acts during the aforesaid period, (iii) maltreatment of and/or atrocities on persons arrested under DISIR or detained and their relatives and close associates during the aforesaid period, (iv) compulsion and use of force in the implementation of the family planning programme during the aforesaid period, (v) indiscriminate high-handed or unauthorized demolition of houses, huts, shops, buildings, structures and destruction of property in the name of slum clearance or enforcement of Town Planning or land use schemes, during the aforesaid period; provided that the inquiry shall be in regard to act of such abuse of authority, misuse of powers, excesses, malpractices, etc. alleged to have been committed by public servants, and provided further that this inquiry shall also cover the conduct of other individuals who may have directed instigated or aided or abetted or otherwise associated themselves with the commission of such acts by public servants; (b) to consider such other matters which, in the opinion of the Commission, have any relevance to the aforesaid allegations, and (c) to recommend measures which may be adopted for preventing the recurrence of such abuse of authority, misuse of powers, excesses and malpractices." This notification further gives to the Commission certain incidental powers under the Commissions of Inquiry Act, 1952 and for the purpose of these applications, it is not necessary to set out those. It was further stipulated that the Commission should submit the report not later than 30th June, 1978. 4. I understand that from time to time such time has been extended. As mentioned hereinbefore, the present Commission with the respondent no. 1 was set up on the basis of certain complaints which were received by the Commission of Inquiry known as Shah Commission. It is necessary for the purpose of understanding to refer to the notification issued by the Central Government on the 28th March, 1977 setting up the said Shah Commission. The said notification stated that there was a widespread demand from different sections of public for an inquiry into several aspect of allegations of abuse of authority, excesses and malpractices committed and action taken or purported to be taken in the wake of Emergency proclaimed on the 25th June, 1975 under Article 352 of the Constitution and the Central Government was of the opinion that it was necessary to appoint a Commission of Inquiry for the purpose of making inquiry into a definite matter of public importance, that is, excesses, malpractices and misdeed during the Emergency or in the days immediately preceding the said emergency, by the political authorities, public servants, their friends and/or relatives and in particular allegations of gross misuse of powers of arrest or detention, maltreatment and atrocities on detenues and other prisoners arrested under DISIR, compulsion and use of force in the implementation of the family planning programme and indiscriminate and highhanded demolition of the house, huts, shops, buildings, structures and destruction of property in the name of slum clearance or enforcement of town planning or land use schemes in the cities and towns, etc. The notification further stated that the Central Government in exercise of the power conferred under S. 3 of the Commissions of Inquiry Act, 1952 appointed a Commission of Inquiry consisting of Mr. J. C. Shah, Retired Chief Justice of the Supreme Court of India. The terms of reference of the Commission were to enquire into the facts and circumstances relating to specific instances of subversion of lawful processes and well-established conventions, administrative procedures and practices, abuse of authority, misuse of power, excesses and/or malpractices committed during the period when the Proclamation of Emergency made on the 25th June, 1975 under Article 352 of the Constitution was in force or in days immediately preceding the said Proclamation, specific instances of maltreatment of and/or atrocities on persons arrested under DISIR (indicating thereby the Defence and Internal Security of India Rules, 1971 framed by the Central Government) or detention of their relatives and close associates during the aforesaid period and specific instances of compulsion and use of force in the implementation of the family planning programme during the aforesaid period as also indiscriminate highhanded or unauthorized demolition of houses, huts, shops, building, structures and destruction of property in the name of slum clearance or enforcement of town planning or land use schemes during the aforesaid period. There were certain provisions with which I am not concerned in these applications. The notification also stated that the Commission shall consider such other matters which in the opinion of the Commission would be relevant. The notification, further, inter alia, stated as follows : "3. The enquiry by the Commission shall be in regard to– (i) complaints or allegations aforesaid that may be made before the Commission by any individual or association in such form and accompanied by such affidavits, as may be prescribed by the Commission, and (ii) such instances relatable to paragraphs 2(a) (i to v) as may be brought to its notices by the Central Government or its notice by the Central Government or a State Government of an Union Territory for inquiry." 5. In order to complete the narration of events it should be mentioned that each of the petitioners were forwarded, as I have mentioned before, with a copy of the affidavit of one Ava Chakrabarty, wife of Sashi Kanta Chakrabarty, who was the Principal, Chanchal College. It is not necessary to set out in detail the said affidavit. The deponent, Sm. In order to complete the narration of events it should be mentioned that each of the petitioners were forwarded, as I have mentioned before, with a copy of the affidavit of one Ava Chakrabarty, wife of Sashi Kanta Chakrabarty, who was the Principal, Chanchal College. It is not necessary to set out in detail the said affidavit. The deponent, Sm. Ava Chakrabarty stated in the said affidavit that she had filed before the Hon'ble Shah Commission of Inquiry an affidavit of complaint relating to excesses committed upon her husband during the Emergency, who was the Principal-cum-ex officio Secretary, Chanchal College in the district of Malda, West Bengal. She further stated that Sri Sashi Kanta Chakraborty was the founder Principal of Chanchal College which was established in the year 1969 within the police station Chanchal district Malda in West Bengal and was affiliated to the North Bengal University at Siliguri in the district of Darjeeling, West Bengal. She further stated about her husband's character and that her husband was universally held in high esteem not only by his own students and colleaguer but also by those who came in contact with him. According to the deponent, Sri J. R. Saha, I. A. S. the then District Magistrate of Malda, was the ex officio President of the Governing body of the Chanchal College, and her husband was the ex officio Secretary of the Governing Body of the said college. According to the deponent, the District Magistrate Malda as the President (Ex officio) of the Governing Body used to interfere with the day to day internal administration of the college. According to the deponent, there was difference of opinion regarding the administration of the College. She has annexed to the affidavit certain communications in this matter and she has further alleged that there was certain postponement of the students' union election at which the District Magistrate expressed his great concern and displeasure. She has further alleged that the said District Magistrate wrote certain offending letters at the instance of the local Minister, viz., Janab Abu Barkat Ataul Gani Khan Choudhury, who was described as a veteran Congressite and who was described to be highly interested to secure predominance in the Students' Union election. She has further alleged that the said District Magistrate wrote certain offending letters at the instance of the local Minister, viz., Janab Abu Barkat Ataul Gani Khan Choudhury, who was described as a veteran Congressite and who was described to be highly interested to secure predominance in the Students' Union election. She has narrated about the disputes about the election and then she has further gone on to alleged that after the declaration of emergency at the fag end of June, 1975, on the 19th July, 1975 her husband was arrested and detained under the Maintenance of Internal Security Act, 1971. The grounds of detention as contained in the order were as follows:– "You and your associates held several secret meeting at odd hours of night between 30.6.1975 and 4.7.75 at Village Chanchal, Malatipur, Barogachia and Kaligram under Kharba P/S and also in Bihar Kharba P/S Border areas. In these meetings, you and your associates decided to start violent activities such as murder of Political leaders and Government servants, disruption in Railway communication and vital installations etc. in the district of Malda with a view to paralyzing the Government machineries. You and your associates also planned to overthrow the present Government and to terrorize common people by spreading false rumour preaching communalism in order to foil the present Emergency." The said detention order was passed and signed, according to the deponent, by the said District Magistrate J. R. Saha, who was the Ex Officio President of Chanchal College. 6. Thereafter, the deponent through the Association of College Teachers made a representation to the State Government and the State Government on examining records of the North Bengal University was satisfied that the husband of the deponent was not present at Malda on the 30th June, 1975 as he was attending certain meetings at the North Bengal University at Siliguri. After such information, the State Government did not approve of the detention order and revoked the detention order. According to the deponent, the release of the husband of the deponent further provoked the local Minister as well as the District Magistrate. Thereafter, S. 16A was inserted in the Maintenance of Internal Security Act, 1971. After such information, the State Government did not approve of the detention order and revoked the detention order. According to the deponent, the release of the husband of the deponent further provoked the local Minister as well as the District Magistrate. Thereafter, S. 16A was inserted in the Maintenance of Internal Security Act, 1971. Thereafter, according to the deponent, the husband of the deponent was again arrested on 24th September, 1975 at the College premises and was kept confined in the police lock up at Bamongola Police Station, in the District of Malda. Thereafter, till 29th September 1975 the deponent could not contact and get information about her husband. The husband of the deponent was kept as a first class prisoner. And the deponent due to the insertion of S. 16A of the MISA and curtailment of the powers of court was not aware of the grounds of detention of her husband nor she could invoke the writ jurisdiction of the courts. The copy of the second detention order has been annexed to the affidavit. After the declaration of the Loksabha poll the husband of the deponent was released and thereafter the affidavit had been made. The two detention orders, first one dated 19.7.75 and the second one dated 27.9.75 are as follows:– "No. MISA. 231/75 Dated 19.7.75 Whereas I am satisfied with respect to the person known as Shri Sashi Kanta Chakraborty, son of Late Jamini Kanta Chakraborty of Singa Tola, P.S. Englishbazar and/or Chanchal, P.S. Kharba, District Malda, that with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do. Now, therefore, in exercise of the powers conferred by Sub-s. (1) read with Sub-s. (2) of S. 3 of the Maintenance of Internal Security Act, 1971 (Act 26 of 1971) I hereby make this order directing the said Shri Sashi Kanta Chakraborty be detained." "No. MISA. 285/75 Dated. Now, therefore, in exercise of the powers conferred by Sub-s. (1) read with Sub-s. (2) of S. 3 of the Maintenance of Internal Security Act, 1971 (Act 26 of 1971) I hereby make this order directing the said Shri Sashi Kanta Chakraborty be detained." "No. MISA. 285/75 Dated. 27.9.75 Whereas I am satisfied with respect to the person known as Shri Sashi Kanta Chakraborty, son of late Jamini Kanta Chakraborty of Singatola, P.S. Englishbazar and of Chanchal P.S. Chanchal, District Malda, that with a view to prevent him from acting in any manner prejudicial to the maintenance of public order security of the State, it is necessary so to do; Now, therefore, in exercise of the powers conferred by Sub-s. (1) read with Sub-s. (2) of S. 3 of the Maintenance of Internal Security Act, 1971 (Act 26 of 1971) I hereby make this order directing the said Shri Sashi Kanta Chakraborty be detained." The deponent has further alleged that due to such wrongful confinement the deponent and her family had been in financial stress and was reduced to distress. In the premises, the deponent has further stated before the Commission that to urge upon the Honourable Commission to take stock of the whole affairs in order to find out the willful abuse of extra-ordinary powers by the detaining authority Mr. Jiban Ranjan Saha, the District Magistrate, and to declare further that the detention of the husband of the deponent was not in public interest nor in the interest of National Security, but to wreck up personal vengeance of Sri Jiban Ratan Saha, the then District Magistrate-cum-Ex officio President, Chanchal College within the District of Malda. 7. As I have mentioned before, upon the impugned notice under S. 8B of the Commissions of Enquiry Act, 1952 was issued upon the petitioners on the ground that the respondent no. 1 was of the opinion that the reputation of the petitioners was likely to be prejudicially affected by the enquiry and the petitioners enquired from the respondent no. 1 upon which grounds the respondent no. 1 had formed the opinion and no grounds were actually made known to the petitioners. This application was thereupon moved by the petitioners. 8. Before me, four grounds were taken by the petitioners. 1 upon which grounds the respondent no. 1 had formed the opinion and no grounds were actually made known to the petitioners. This application was thereupon moved by the petitioners. 8. Before me, four grounds were taken by the petitioners. Firstly, it was urged that the State Government was not the appropriate Government to institute the Commission of inquiry in the facts and circumstances of this case; it was, secondly, urged that there had been total non-application of the mind by the authority in issuing the notice dated 30th December 1978; thirdly, it was urged that the reference was vague; and it was, lastly, submitted that the notices under S. 8B of the Commission of Inquiry Act, 1952 were bad on the same grounds viz., that those were not issued by the appropriate authority and that there had been non-application of mind of the authority in issuing the said notices and there was no material before the Commission to come to the conclusion that the reputation of the petitioners were likely to be affected. 9. In this connection, reference may be made to the relevant provisions of the Commissions of Inquiry Act, 1952 (hereinafter called as the Act). Section 2 of the Act contains the definitions and clause (a) gives the definition of the "appropriate Government", so far as the present purpose it concerned, which is in the following terms:– "(a) "Appropriate Government" means– (i) the Central Government, in relation to a Commission appointed by it to make an inquiry into any matter relatable to any of the entries enumerated in List I or List II or List III in the Seventh Schedule to the Constitution; and (ii) the State Government, in relation to 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." The rest of the proviso of Clause (a) is not material Section 3 of the Act is in the following terms:– "3. (1) 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 Gazettee, appoint a Commission of inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions and within such time as may be specified in the notification, and the Commission so appointed shall make the inquiry and perform the functions accordingly : Provided that where any such Commission has been appointed to inquire into any matter– (a) by the Central Government, no State Government shall, except with the approval of the Central Government, appoint another Commission to inquire into the same matter for so long as the Commission appointed by the Central Government is functioning; (b) by a State Government, the Central Government shall not appoint another Commission to inquire into the same matter for so long as the Commission appointed by the State Government is functioning, unless the Central Government is of opinion that the scope of the inquiry should be extended to two or more States. (2) The Commission may consist of one or more members appointed by the appropriate Government, and where the Commission consists of more than one member, one of them may be appointed as the Chairman thereof. (3) The appropriate Government may, at any stage of an inquiry by the Commission fill any vacancy which may have arisen in the office of a member of the Commission (whether consisting of one or more than one member). (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-s. (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." Section 11 of the Act provides as follows:– "11. Where any authority (by whatever name called), other than a Commission appointed under S. 3, has been or is set up under any resolution or order of the appropriate Government for the purpose of making an inquiry into any definite matter of public importance and that Government is of opinion that all or any of the provisions of this Act should be made applicable to that authority, that Government may, subject to the prohibition contained in the proviso to sub-s. (1) of S. 3, by notification in the Official Gazettee, direct that the said provisions of this Act shall apply to that authority, and on the issue of such a notification that authority shall be deemed to be a Commission appointed under S. 3 for the purposes of this Act." Section 8B of the Act under which the notice had been issued is in the following terms:– (a) considers it necessary to inquire into the conduct of any person; or (b) is of opinion that the reputation of any person is likely to be prejudicially affected by the inquiry, the Commission shall give to that person a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence: Provided that nothing in this section shall apply where the credit of a witness is being impeached." 10. As I have mentioned before, the main argument was that the State Government was not the appropriate Government. Section 2 of the said Act, which I have set out hereinbefore, deals with the appropriate Government. It postulates that the appropriate Government is the Central Government in relation to a Commission appointed by it to make an enquiry into any matters relatable to any of the entries enumerated in List I, List II or List III of the Seventh Schedule of the Constitution and the State Government in relation to a Commission appointed by it to make an enquiry to any of the matters relatable to any of the entries enumerated in List II and List III of the Seventh Schedule of the Constitution. The significance of these two clauses, viz. clause a (i) and clause a (ii) of S. 2 of the said Act would be apparent if one refers to certain observations of the Supreme Court in the case of Karnataka State v. Union of India, AIR 1978 SC 68 . The significance of these two clauses, viz. clause a (i) and clause a (ii) of S. 2 of the said Act would be apparent if one refers to certain observations of the Supreme Court in the case of Karnataka State v. Union of India, AIR 1978 SC 68 . That was a case dealing with a suit filed by the State of Karnataka against the Union of India challenging the appointment by the Centre of a Commission of Enquiry against Sri Devraj Urs, Chief Minister and other Ministers of the State of Karnataka. There was already another Commission to enquire into the conduct of certain other persons. I shall refer to other observations in the said decision which are relevant for my purpose but for the present purpose it would be appropriate to refer to the observations in the judgment of Mr. Justice Kailasam at page 175 of the said report in paragraph 274 where the Supreme Court observed, inter alia, as follows: "Reading S. 3(1) along with the proviso, it is apparent that the intention of the Act is to enable to appropriate Government i.e. the Central or the State Government to appoint a Commission of Inquiry for the purpose of making an enquiry into any definite matter of public importance. The Central Government can appoint a commission to make an inquiry into any matter relatable to any of the Entries enumerated in List I, List II or List III of the Seventh Schedule of the Constitution while the State Government can appoint a commission to enquire into any matter relatable to any of the entries enumerated in List II and List III of the Constitution. As both the Central Government and the State Government have power to appoint a commission of inquiry relating to entries in List I and List III there might arise occasions when these may be overlapping." 11. Therefore, while the Central Government has the power to appoint a Commission relatable to all the Entries enumerated in List I, List II and List III of the Seventh Schedule, the State Government have only power to constitute Commissions of Enquiry of the State under S. 3 in respect of matters relating List II and List III. In case of overlapping, what is to happen that is dealt with in the proviso with which I am not concerned presently. In case of overlapping, what is to happen that is dealt with in the proviso with which I am not concerned presently. But it is apparent from the section and as clarified by the observations of the Supreme Court, in respect of matters relatable to Entries enumerated in List I, it is the Central Government and the Central Government alone which is entitled to constitute a body or appoint a Commission under the said Act and in respect of that the Central Government, under the Act, has no authority or no power to delegate its functions or give any consent to any State. Indeed, giving approval or consent arises only in respect of Entries enumerated in List II and List III where the Central Government has already appointed a Commission for the purpose of avoiding overlapping as was mentioned in the said judgment. Therefore, reading S. 2(a) along with S. 3 of the said Act, to my opinion, it appears to be clear that the Central Government alone is competent to appoint a Commission in respect of matters relatable to items mentioned in List I of the Seventh Schedule of the Constitution. In this connection, a reference may also be made to certain provisions of the Constitution to appreciate the arguments advanced in this case. Item 9 of List I, being the Union List of the Seventh Schedule of the Constitution deals with preventive detention for reasons connected with defence, foreign affairs or the security of India and persons subjected to such detention. Item 3 of List III being the concurrent list deals with preventive detention for reasons connected with the security of a State, the maintenance of public order or the maintenance of supplies and services essential to the community and persons subjected to such detention. In this connection it may be mentioned that public order (subject to certain exclusions) is also a matter which is within the jurisdiction of the State (being item I of List II). My attention was also drawn to Article 258 of the Constitution and Clause (2) of Article 258 provides as follows: "258(2). In this connection it may be mentioned that public order (subject to certain exclusions) is also a matter which is within the jurisdiction of the State (being item I of List II). My attention was also drawn to Article 258 of the Constitution and Clause (2) of Article 258 provides as follows: "258(2). A law made by Parliament which applies in any State may, notwithstanding that it relates to a matter with respect to which the Legislature of the State has no power to make laws, confer powers and impose duties, or authorize the conferring of powers and the imposition of duties, upon the State or officers and authorities thereof. It is not relevant for the present purpose to refer to Articles 352 and 353 of the Constitution dealing with the emergency provisions to which also my attention was drawn. 12. Learned Standing Counsel appearing for the respondent also drew my attention to Items 45 of List III which deals with inquiry and statistics for the purpose of any matters specified in List II or List III. In this connection it is also relevant to refer to the Maintenance of Internal Security Act, 1971 which was an Act for preventive detention in certain contingencies which was passed by the Parliament. This Act seems to have been passed by virtue of Item 9 of List I of the Seventh Schedule of the Constitution though under S. 3 of the said Act power to make an order to detain a person can be made by the Central Government or the State Government. It may not be inappropriate to set out S. 3 of the said Act which reads as follows: "3. It may not be inappropriate to set out S. 3 of the said Act which reads as follows: "3. Powers to make orders detaining certain persons.–– (1) The Central Government or the State Government may,–– (a) if satisfied with respect of any person (including a foreigner) that with a view to preventing from acting in any manner prejudicial to–– (i) the defence of India, the relations of India with foreign powers, or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance of supplies and services essential to the community, or (b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained. (2) Any of the following offers, namely–– (a) district magistrates, (b) additional district magistrates specially empowered in this behalf by State Government, (c) Commissioner of Police, for Bombay, Calcutta, Madras or Hyderabad, (may also, if satisfied as provided in sub-s. (i)) exercise the power conferred by the said sub-section. (3) When any order is made under this section by an officer mentioned in sub-s. (2), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particular as in his opinion have a bearing on the matter, and no such order shall remain in force for more than 20 days (twenty days) after the making thereof unless in the meantime it has been approved by the State Government : Provided that where under S. 8 the grounds of detention are communicated by the authority making the order after five days but not later than fifteen days from the date of detention, this sub-section shall apply subject to the modification that for the words (twenty days) the words twenty-five days shall be substituted. (4) When any order is made or approved by the State Government under this section, the State Government shall, within seven days report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as in the opinion of the State Government have a bearing on the necessity for the order." The other provisions to which reference may be made, though it is not necessary for me to refer to them in detail, re the Defence of Internal Security of India Rules, 1971. 13. Learned advocate appearing for the petitioners contended that the appropriate Government was not the State Government in respect of items or matters relatable to any matters enumerated in List I and he submitted in respect of matters of abuse of power, in implementing either MISA or DISIR being Rules and the Act, referred to hereinbefore, by any State authority, viz. Ministers or officials of the State Government, could not be enquired into or looked into by the State Government by virtue of the provisions of the said Act. Learned Standing counsel appearing on behalf of the respondents submitted that the provisions of this Act were intended to be implemented through the machinery of the State Government. If there was any abuse of power in implementing the said Act or there was any excess exercise of power affecting public order, enquiries in respect of those could be initiated by the State Govt. by virtue of Entry 45 of List III and this matter being in the concurrent list of the Central and State Government, as would appear from annexure to the affidavit in opposition affirmed by the Home Secretary in the instant case, it would be apparent that in spite of the fact that Shah Commission was appointed the constitution of this authority or this Commission under the Act was valid. On behalf of the petitioners it was argued that assuming that the constitution of Shah Commission was valid, which was not admitted, and upon which I express no opinion as being not necessary for my present purpose, the Shah Commission had no power, according to the learned advocate for the petitioners to delegate its functions of determining the issues referred to it by any other authority, and, therefore, the Shah Commission could not direct any authority of the State Government or any other authority constituted by the State Government to deal with or determine for it any of the matters which were directed by the notification appointing the Shah Commission to be determined by the said Commission. Shah Commission was competent, according to the learned advocate for the petitioners, to receive complaints, if it was competent at all, from the Central Government, the State Government or any other person, as enumerated in the notification constituting the Shah Commission. But the Shah Commission, it was urged, was not competent or authorized to delegate its functions of determining the matters before it by any other authority. It was, secondly, urged that in any event the Shah Commission could not pass on its unfinished or un-disposed of matters to be investigated or determined by any other authority. It was, then, urged that in any event after the Shah Commission was wound up, there could not be any scope of investigation by the present Commission of Enquiry. It was, further, urged that the Commission of Enquiry could not enquire into the vague allegations and charges. On behalf of the petitioners it was further urged that the terms of reference of the respondents nos. 1 & 2 constituted by the State Government were absolutely vague and without jurisdiction. I shall come to the question of notice and the vagueness of the charges later. Learned Standing Counsel on behalf of the respondents, on the other hand, urged that Shah Commission was constituted in order to receive complaints from the State Governments which the Shah Commission was entitled to. By virtue of the power conferred on the Central Government, the Central Govt. constituted Shah Commission. The State Government could, as a matter of fact, he urged, fairly constitute a body under this Act to gather informations and pass on such informations to the Shah Commission for its consideration. By virtue of the power conferred on the Central Government, the Central Govt. constituted Shah Commission. The State Government could, as a matter of fact, he urged, fairly constitute a body under this Act to gather informations and pass on such informations to the Shah Commission for its consideration. That was the original purpose and with this authority this Commission had been set up. But, inasmuch as the Shah Commission was wound up and there was a large number of complaints received by the State Government, which were pending before the authority constituted by it, the State Government after considering the nature of the complaints received, having regard to the nature of the public order and having regard to the fact that some of the provisions of MISA and DISIR were sought to be implemented through the machinery of this State Govt. thought it produce that these matters to be investigated by the machinery of this authority, and as such the State Govt. was entitled to constitute this Commission. Therefore, according to him, the State Government had materials on relevant matters for the formation of the opinion for setting up this Commission even after the winding up of the Shah Commission because those complaints remained uninvestigated or unattended or un-disposed of. These are the rival contentions. 14. I will assume for the present purpose that the Shah Commission was validly constituted because I am not concerned in this application about the validity of invalidity of the constitution of the Shah Commission. I will assume also that the Shah Commission could ask the State Government to send complaints or receive complaints end the State Government for the purpose of processing these complaints could constitute under the provisions of the said Act an authority to gather these information, as it is not necessary for me to consider that for the present purpose. But the main question in this case is whether either the State Government could or the Shah Commission could ask the State Government to constitute a body or an authority to gather information under the provisions of the Act in respect of the offences or matters relatable to matters enumerated in List I of the Seventh Schedule. It is well settled that the expression 'relatable' is of widest amplitude. In the aforesaid observations of Mr. It is well settled that the expression 'relatable' is of widest amplitude. In the aforesaid observations of Mr. Justice Kailasam set out hereinbefore the learned Judge has treated the expression "relatable" as synonymous to "relating". But whatever be the width of the amplitude of the expression used, this must be red in conjunction with other provision of the Act. Section 2(a) read with S. 3 makes it clear that the framers of the Act had in contemplation different Governments, namely, Central Government, State Government. In view of our federal structure, they demarcated the areas of the operation of the commission or authority contemplated by the Act. 15. The matter relatable to List I are in the domain of the Union Government and the Union Government or the Central Government alone is competent to enquire into any offences or matters arising of the same. Now, the expression 'relatable' is one which indicates something which is in relation to or in relation of or which can be said to be relatable. This expression has been differently construed in different context in different cases, which are not necessary for me to refer. For example, decisions in the case of Sambhusiva v. Mani Lal AIR 1932 Bombay 47, in the case of Compagnie Financiere De Pacifique v. Pruvian Guano Co. 11 QB Division P 55, in the case of Brookes & anr. v. Prescott & Co. 1948 (2) KB 133, this expression has been construed either in connection with the pleadings or in connection with claiming privilege. Anything which can be said to be related must be 'relatable' to that matter and specially this expression 'relatable to' in List I must be read in conjunction and in contradiction to List II and List III. Therefore, if an Act is passed by virtue of power of List I, then implementation or carrying out and the effect of that Act are things or matters which will be relatable to matters of List I of the Seventh Schedule. That seems to be the clear meaning and the demarcation of the powers. Therefore, if an Act is passed by virtue of power of List I, then implementation or carrying out and the effect of that Act are things or matters which will be relatable to matters of List I of the Seventh Schedule. That seems to be the clear meaning and the demarcation of the powers. If that is the position, than assuming for a moment that there have been excesses or abuser of powers in implementing the Act passed by virtue of powers conferred by List I then that would be a matter relatable or related to the matter enumerated in List I in the Seventh Schedule, if that is so, then the Central Government and the Central Government alone, has the authority. The Commissions of Inquiry Act, 1952 deals with the constitution of the Commission can by any consent or any approval confer any authority to the State Government or a Commission to constitute such a body. For implementation of a Central Act if there is any excess or abuse of the power simpliciter without reference to the user or application of the Central Act which endangers public order or any abuse of power which creates public disrespect in the administration whether the State Government may or may not be able to constitute a body that I am not concerned with in this application. 16. In the instant case, I have set out the complaints upon which the notices under S. 8B had been issued to the petitioners showing the excess or abuse of power in implementing MISA or DISIR which admittedly were matters relatable to List I of the Seventh Schedule or matters arising out of List II of the Seventh Schedule of the Constitution. If it is assumed that there has been excess or abuse of power in respect of implementation of this Act, this must be relatable to matters enumerated in List I. If that is so, then, in my opinion, the Central Government alone is entitled to constitute any Commission, if at all. In that view of the matter it is not necessary to go into the question whether the constitution of Commission by the Centre in certain matters in a State is an interference with State's administration. In that view of the matter it is not necessary to go into the question whether the constitution of Commission by the Centre in certain matters in a State is an interference with State's administration. Even if it was so, the decision in the case of State of Karnataka v. Union of India, AIR 1978 SC 68 upon which reliance was placed and has been referred to hereinbefore, is a clear authority to negative that contention. The amplitude of item No. 45 in List III of the 7th Schedule about which the Chief Justice mentioned at pages 105 and 106 of the aforesaid report is however circumscribed by mattes. 17. The second question that was urged in this case was, there was non-application of mind in issuing the notification. On that the learned advocate for the petitioner submitted that the terms of reference were vague because, according to him, the expressions like "well established conventions", "excess of power", "maltreatment" or "atrocious act", are expressions of vague import and cannot be judged by any yard-stick. In this connection, reliance was placed on the observations of the Supreme Court in the case of K. Ballav v. Commission of Enquiry, AIR 1969 SC 258 and also in the case of Orient Paper Mills v. Union of India, AIR 1979 Cal 114 . In the context of the present notification, I am unable to accept this contention urged on behalf of the petitioner. The expression used must be judged in the context it has been used. It is true that the expression 'convention' in one context may mean one thing and in other context it may mean other. But in the context in which the notification has been issued, in my opinion, the expressions like well established 'convention' or 'excess of powers', or 'maltreatment' or 'atrocious act' are the expressions which could be understood and which could not be said to be vague or uncertain. Though, these expressions are capable of conveying different meanings but actually in public matters these are capable of conveying certain well established meanings and judged in that light, in my opinion, the present notification cannot be condemned as vague as being without any indication. 18. Though, these expressions are capable of conveying different meanings but actually in public matters these are capable of conveying certain well established meanings and judged in that light, in my opinion, the present notification cannot be condemned as vague as being without any indication. 18. But there is another aspect of the matter, that is to say, whether there was any material of definite public importance which the State Government had and came to the conclusion for constituting an authority under S. 3 of the Commission of Inquiry Act, 1952. On this the learned advocate for the petitioner strenuously stressed that after setting out the history of the Shah Commission and after mentioning certain matters which remained un-disposed of, the notification dated 30th December, 1979, which is now being challenged has gone on to say "Whereas the Governor was of the opinion that it would be a definite matter of public importance." According to the learned advocate for petitioners, the expression 'it would be a definite matter of public importance' indicates that it might or might not be a definite matter of public importance. It further indicates, according to the learned advocate for the petitioners, that the Government has not come to the conclusion that there are matters of public importance. I am also unable to accept this contention. If the complaints are of such a grave nature that the State Government considered that investigation might be of a matter of public importance, the use of expression by the Government would really be indicative that the matters were of definite public importance and upon that the impugned notification was issued. In a particular case if there are certain matters which remained un-disposed of and are required to be investigated and the Commission might be useful then the Government might come to that conclusion. In this connection reliance may be placed on the observations of the Supreme Court in the case of State of Karnataka v. Union of India, AIR 1978 SC 68 at page 137 wherein Chandrachud, J. (as the Chief Justice then was) observed as follows referring to the observations of Sir Cyril Salmon : "It is 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 definitive judgment. It has to collect facts through the evidence led before it and on a consideration thereof it is required to submit its report which the appointing authority may or may not accept. There are sensitive matters of public importance which, if left to the normal investigational agencies, can create needless controversies and generate n atmosphere of suspicion. The larger interests of the community require that such matters should be enquired into by high powered Commissions consisting of persons whose findings can command the confidence of the people. In his address in the Lionel Cohen Lectures, Sir Cyril Salmon speaking on 'Tribunals of Inquiry' said : 'In all countries, certainly in those which enjoy freedom of speech and a free press, moments occur when allegations and rumours circulate causing, a nation-wide 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 the allegations by which the public has been disturbed. In either case, confidence is restored.' 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 re being recorded by the police. Section 8C 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 S. 8B and with the permission of the Commission, on any other person whose evidence is recorded by the Commission. Clauses (a) and (b) of S. 8B refer respectively to persons whose conduct the Commission considers it necessary to enquire into and persons whose reputation, in the opinion of the Commission, is likely to be prejudicially affected by the inquiry. Clauses (a) and (b) of S. 8B refer respectively to persons whose conduct the Commission considers it necessary to enquire into and persons whose reputation, in the opinion of the Commission, is likely to be prejudicially affected by the inquiry. It is undeniable that the person whose conduct is being enquired into and he be a Chief Minister or a Minister, the doings of the Government itself are exposed to the fierce light of publicity. But that is a risk which is inherent in every inquiry directed as finding out the truth. It does not, however, justify the spacious submission that the inquiry constitutes an interference with the executive functions of the State Government or that it confers on the Central Government the power to control the functions of the State executive. After all, it is in the interest of those against whom open allegations of corruption and nepotism are made that they should have an opportunity of repelling those allegations before a trained and independent Commission of Inquiry which is not hide bound by the technical rules of evidence. 'It is only by establishing the truth that the purity and integrity of public life can be preserved' and that is the object which the Commissions of Inquiry Act seeks to achieve." In this connection reference may also be made to the observations of Chief Justice Beg in the aforesaid decision where the Chief Justice has referred to the history in England about the Commission of Enquiry at pages 89 to 90 of the aforesaid report. 20. Mr. Justice Amiya Kumar Mookerji of this Court in the case of Orient Paper Mills v. Union of India & ors, reported in AIR 1979 Calcutta 114 has referred extensively to the different observations of the Supreme Court. 20. Mr. Justice Amiya Kumar Mookerji of this Court in the case of Orient Paper Mills v. Union of India & ors, reported in AIR 1979 Calcutta 114 has referred extensively to the different observations of the Supreme Court. His Lordship has also referred to the observations of the Supreme Court in the cases of State of Jammu & Kashmir v. Bakshi Gulam Mohammad reported in AIR 1979 SC 122, Krishna Ballav Sahay v. Commission of Inquiry reported in AIR 1969 SC 258 which I have referred to hereinbefore and in the case of P. V. Jagannath Rao v. State of Orissa reported in AIR 1969 SC 215 where it has been reiterated that the charges of grave nature made against public servant or high official were stated to have been made for the sake of better investigation into the matter of public importance by the Commission, but in recent times doubts have been expressed whether the procedure of the investigation by these Commissions is the appropriate method in view of the large number of commissions that have been appointed. Lord Denning in his book "The Due Process of Law" (paras 67 & 73) has also commented on the procedure in respect of a different type of enquiry. But this is a matter of policy and there is scope for debate. I am not concerned in this case with the question whether it is appropriate method or not. I am concerned with the powers of the Government. Reliance was placed on several decisions at the Bar, but as that most of the decisions have been reviewed in the above mentioned decisions for the purpose of disposal of this application it is not necessary to discuss the aforesaid decisions in detail. 21. The last item on which a good deal of stress was made was in any event in this case notices under S. 8B of the Commissions of Inquiry Act had been used without any material and without forming any opinion and without any basis or the justification. Learned Standing Counsel, on the other hand, contended that S. 8B was intended to be a shield and assured that it was a privilege given to the parties. A certain complaint has to be investigated, that might or might not involve the petitioners. The petitioners were given opportunities to be present and to cross-examine and present their cases. Learned Standing Counsel, on the other hand, contended that S. 8B was intended to be a shield and assured that it was a privilege given to the parties. A certain complaint has to be investigated, that might or might not involve the petitioners. The petitioners were given opportunities to be present and to cross-examine and present their cases. But, in my opinion, that is not so, I have set out the provisions of S. 8B of the Act hereinbefore. In order to issue a notice at any stage the Commission of Inquiry must be of the opinion that the person to whom the notice is given might be prejudicially affected. There must be a prima facie material for formation of the opinion that the person may be prejudicially affected, otherwise the entire world had to be given notices. The learned Standing Counsel urged that the petitioners could ignore the notices and if they did that would not be, according to the Standing Counsel, at their peril because nothing really flows from the observations of the Commission because the State Government is not bound to accept the conclusion of the Commission nor any action will be taken on the basis of the report of the Commission. If the action has to be taken it must be done in any proceeding in Court when the concerned persons would get full opportunity. But it has been reiterated that the reputations of a person are likely to be affected and specially in respect of the public mind, that is sufficiently prejudice and it is to void such prejudice that S. 8B in consonance with the principles of natural justice has been provided. But S. 8B for its observance requires the formation of opinion by the appropriate authority that the reputation of a person to whom the notice is given is likely to be prejudicially affected. In this case, if the complaint is analysed it is difficult to understand or appreciate on what basis could there by any opinion that the reputation of the petitioners would be affected, I have set out the complaint. In this matter the respondents 1 and 2 have not set out any grounds on which they have formed their opinion. But the State Government in its affidavit through its Home Secretary has set out certain grounds. My attention was drawn to the affidavit by the Home Secretary. In this matter the respondents 1 and 2 have not set out any grounds on which they have formed their opinion. But the State Government in its affidavit through its Home Secretary has set out certain grounds. My attention was drawn to the affidavit by the Home Secretary. Now the complainant is categorical in her complaint. The complainant has stated in her affidavit that in respect of her first complaint the grounds had been indicated by the District Magistrate concerned. The complainant has further stated that the State Government did not approve the grounds and directed release of the complainant's husband. Thereafter the complainant goes on categorically to state in paragraph 58 that 'that even after my husband's release from the mala fide detention he was not allowed to join at the instance of the local Minister." She has made no complaint in this paragraph either against the State Government or any other person a part from the local Minister whom she has referred to in previous paragraph 21 as Shri Janab Abu Barkat Ataul Gani Chowdhury. Her complaint is specific and categorical and in order to clarify the matter in paragraph 60 she has urged the commission to enquire– "to urge upon the Honourable Commission to take stock of the whole affairs in order to find out the willful abuse of extra-ordinary powers by the detaining authority. Mr. Jiban Ranjan Saha, the District Magistrate, and to declare further that my husband's detention was not in public interest nor in the interest of National Security, but to wreck up personal vengeance of Sri Jiban Ratan Saha, the then District Magistrate cum ex President Chanchal College within the District of Malda." She is categorical that at the instance of Jiban Ranjan Saha according to her, the detention order was passed. There is no material or ground indicated that the State Government had acted mala fide or had anything to do with the alleged detention or had abused the power. There is no whisper about user of any of the detention power or complaint made by the petitioner. The Home Secretary in his affidavit has stated in paragraph 5 that certain documents were in possession of the State Government and he has referred to one document under the signature of one Shri B. Mukherjee, the then Home Secretary, which he has annexed as Annexure 'B'. The Home Secretary in his affidavit has stated in paragraph 5 that certain documents were in possession of the State Government and he has referred to one document under the signature of one Shri B. Mukherjee, the then Home Secretary, which he has annexed as Annexure 'B'. The document is in the following terms : D. O. No. 11679(15)––HS 3rd July, 1975 My dear, You have perhaps by this time received our No. 11501-HS dated 1st July, 1975 enclosing a copy of message from the Government of India summarizing the provisions of the Ordinance amending provisions of the Maintenance of Internal Security Act. This Ordinance gives power to the detaining authorities to detain persons without giving grounds, provided a declaration is made that such detention is necessary to effectively deal with the Emergency. This is an extraordinary power and should be used very spaderingly. Chief Minister desires that before any person is detained without giving grounds an informal approval of the Home Deptt., should be taken. For obvious reasons no written reference should be made but you may communicate with the Home Secretary or the Joint Secretary, Home (Special) Department over the phone. Yours sincerely, Sd/- B. Mokhopadhyay, 22. First, whether the document was in possession of the respondents Nos. 1 and 2 on the basis of which the notices were issued under S. 8B is not clear. The respondents No. 1 and 2 in this affidavit have not so stated. I have not appreciated this reason why this document was sought to be annexed. The learned Standing Counsel sought to urge incidentally that after the amendment of S. 16A of Internal Security Act, 1971 in June 1975 no reason had to be stated, indeed in the subsequent order of detention no reason had been stated, and this letter indicated that the Chief Minister or the Home Secretary could communicate to the District Authorities concerned orally about the reasons for the detention. But the complainant is categorical in her complaint. She has not made any complaint against any other authority except the District Magistrate and has incidentally referred to the local Minister whom I have mentioned before. But the complainant is categorical in her complaint. She has not made any complaint against any other authority except the District Magistrate and has incidentally referred to the local Minister whom I have mentioned before. On these materials it is not conceivable that there can be any reasonable basis for formation of an opinion by any authority that the reputation of the present two petitioners could be affected by the investigation of this complaint unless the complainant is allowed to traverse beyond her complaint and take new point which the complainant has yet not, been allowed to. If that is the position, I also find that there is no material to issue the notices under S. 8B and the opinion required to be formed before issuing the notice under S. 8B of the Act was not present. 23. My conclusions, therefore, are–– (1) Though the State Government could constitute any commission in respect of the matters of definite importance, such matters must be only relatable to either List II or III of the 7th Schedule of the Constitution. In respect of those matters if there is pre-existing Central Commission then for constituting another commission, consent or approval of the Central Government is required. (2) But in respect of matters relatable to any items in List I of the 7th Schedule the State Government can not constitute either any Commission of Inquiry or any authority under the Commissions of Inquiry Act, 1952. In this matter the consent of the Central Government or any authority constituted by the Central Government to investigate the matters is wholly irrelevant and is of no effect. (3) In the instant case the alleged complaint in respect of which the notices have been issued is a matter arising out of the matter in the List I of the 7th Schedule of the Constitution. As such it is relatable to that list and the Central Government and the Central Government alone would have the authority to determine the issue appointing the Commissions of Inquiry in this matter and also determine the propriety or otherwise of such a commission by any authority at all. (4) I hold that the impugned notification dated 30th December, 1978 constituting the Commissions of Inquiry as such is not vague, is so far as matters not relatable to List I of the 7th Schedule of the Constitution. (4) I hold that the impugned notification dated 30th December, 1978 constituting the Commissions of Inquiry as such is not vague, is so far as matters not relatable to List I of the 7th Schedule of the Constitution. (5) Notices under S. 8B of the Commissions of Inquiry Act, 1952 had been issued in the instant case without any material because on the basis of the complaint there could not be any investigation which could be said to be prejudicial to the conduct of the present two petitioners. (6) I express no opinion as to whether the Central Government was at all competent to constitute the Shah Commission of Enquiry in the facts and the circumstances of this case. 24. In that view of the matter the impugned notices are hereby quashed and the investigation of the complaints by the respondent No. 1 in so far as the matters relatable to List I of the 7th Schedule, namely MISA or DISIR area concerned, are hereby quashed. The investigation under the impugned notices under S. 8B is also quashed. The Rule is made absolute to the extent indicated above in the instant case. There will be no order as to costs. Notices and investigation on matters relatable to List I of the 7th Schedule namely MISA and DISIR quashed. C. R. 3021-29(W) of 1979––14.3.80–– Mr. A. P. Chatterjee, learned Standing Counsel applied orally yesterday for a certificate under Article 134(A) of the Constitution of India for leave to appeal to the Supreme Court. As I have he3ld on an interpretation of the Commission of Inquiry Act read with List 1, 2 and 3 of the VIIth Schedule of the Constitution that the State Government had no power to constitute a Commission of Inquiry in relation to matter relatable to List 1 of the VIIth Schedule of the Constitution, in my opinion, this decision raises a substantial question of law as to the interpretation of the Constitution. Accordingly, I grant a certificate under Article 134(A) read with S. 132(1) of the Constitution of India. Let the certificate be drawn up expeditiously. Certificate for leave to appeal to the Supreme Court granted.