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1982 DIGILAW 134 (KER)

RAJENDRAN v. HOME SECRETARY

1982-06-04

BALAKRISHNA MENON, K.BASKARAN

body1982
Judgment :- 1. The appellant, Sri T. A. Rajendran, stated to be the editor of 'Navab', a weekly published from Trichur, filed O. P. No. 3555 of 1982 under Art.226 of the Constitution of India "to call for the entire records in connection with the inquiry into the allegation of bribery of the 4th respondent (Sri Karunakaran, Chief Minister of Kerala) which is the subject matter of the'Navab'photostat case and the records in connection with the allegations against the 5tb and 6th respondents (Sri V. N. Rajan, Director, Institute of Criminology and Forensic Science, Ministry of Home Affairs, New Delhi, and Sri Jayaram Padikkal, Dy. Director, Vigilance Investigation, Kerala, Trivandrum respectively) in Rajan murder case and to issue a writ in the nature of mandamus or any appropriate writ to direct the 1st and 2nd respondents (The Home Secretary, Government of India, New Delhi, and the Chief Secretary, Government of Kerala, Trivandrum) for appointing a commission of inquiry as contemplated under S.3 and 11 of the Commission of Inquiry Act, 1952 (Central) into the allegations levelled against respondent Nos. 4, 5 and 6 and to issue a writ of mandamus directing the 3rd respondent (The Director of Vigilance Investigation, Kerala, Trivandrum) to submit the entire inquiry proceedings made by him so far'; and that writ petition having been dismissed by the learned single judge this writ Appeal has been filed by the appellant-petitioner. 2. For the reasons stated in Para.3 of the judgment under appeal the learned Single Judge took it that "the only matter in respect of which the petitioner seeks the relief is what is connected with the allegation contained in the 'Navab' dated 1-4-1972." In the averments made in the writ petition there is hardly anything to show that the petitioner bad any cause of action with respect to Rajan case. In fact, we fail to see what bearing the publication of the news item in the petitioner's weekly 'Navab' dated 1-4-1972 as to the Rajan case. Agreeing with the reasoning of the learned Single Judge, we also take it that the relief that the petitioner seeks in the writ petition is confined to the one relating to the allegations contained in the issue of 'Navab' dated 1-4-1972. 3. Agreeing with the reasoning of the learned Single Judge, we also take it that the relief that the petitioner seeks in the writ petition is confined to the one relating to the allegations contained in the issue of 'Navab' dated 1-4-1972. 3. The learned single judge found inter alia that there was total failure on the part of the appellant-petitioner to call upon respondents 1 and 2 to order an enquiry under the Act and that the petitioner could not. at such distance of time, justifiably invoke the extraordinary jurisdiction of this Court to issue a writ of mandamus to compel the Government to appoint a Commission to inquire into the allegation under S.3 or S.11 of the Act. 4. Sri A. X. Varghese, the counsel for the appellant, submitted that the reasons stated by the learned single judge declining to issue a writ of mandamus as prayed for are not sustainable. In support of bis contentions he cited the decisions of the Supreme Court in State of J. & K. v. Bakhsi Gulam Mohammad (MR. 1967 S. C. 122) and Ram Krishna Dalmia v. Justice Tendolkar (AIR. 1958 S. C. 538); and the Division Bench rulings of this Court in Eachara Varier v. Secretary to the Ministry of Home Affairs (1977 KLT. 335) and Eachara Varier v. Home Secretary (1977 KLT. 526). 5. Sri V. Bhaskaran Nambiar. Advocate General, submitted that if at all the appellant-petitioner was entitled to anything, that was to approach the Government in terms of G. O. MS No 386/ Home dated 20-12-1969. He also argued that the appellant-petitioner approached this Court without bearing in mind the limitations on the writ jurisdiction of this Court. He also pointed out that after the receipt of Ext. P-1 representation dated 27-6-1978 addressed to the Governor, the 3rd respondent had on 9-10-1978 written to the appellant-petitioner to produce before him evidence relied upon by him in support of his allegations; and in response to that communication the appellant-petitioner had actually met the 3rd respondent on 3-11-1978 and submitted his evidence. According to him, the Government on a careful consideration of the entire matter, including the material collected and the conclusions reached by the 3rd respondent, found that there was no basis in the allegations made by the petitioner and that there was no case made out for any action with respect to the allegations contained in Ext. According to him, the Government on a careful consideration of the entire matter, including the material collected and the conclusions reached by the 3rd respondent, found that there was no basis in the allegations made by the petitioner and that there was no case made out for any action with respect to the allegations contained in Ext. P-1, which facts could be seen from the proceedings dated 29-3-1979. As contended by the Advocate General, and found by the learned single judge, the appellant petitioner, after he met the 3rd respondent and produced evidence relied on by him on 3-11-1978, appears to have gone into a long slumber, until Ext. P-3 representation dated 9-12-1981, addressed to the Governor was submitted. Even thereafter, he took over five months to invoke the writ jurisdiction of this Court. 6. S.3(1) of the Act reads as follows: "Appointment of Commission. (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 Gazette, appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions and within such time as may be specified in the notification, and the Commission so appointed shall make the inquiry and perform the functions accordingly." (proviso omitted) On a careful analysis of the terms in the above sub-section, it appears to us that the question of appointment of a Commission would arise only if, in the opinion of the Government, it is found necessary to appoint one or when the Government is compelled to do so as a result of the resolution passed in that behalf, either by the Lok Sabha or by the Legislative Assembly of the State concerned. The expression "if it is of opinion" used in the sub-section makes it abundantly clear that, unless compelled by the Lok Sabha or the Legislative Assembly of the State concerned, the Government has the discretion to appoint or not to appoint a Commission in terms of S.3 of the Act, depending upon its opinion. The expression "if it is of opinion" used in the sub-section makes it abundantly clear that, unless compelled by the Lok Sabha or the Legislative Assembly of the State concerned, the Government has the discretion to appoint or not to appoint a Commission in terms of S.3 of the Act, depending upon its opinion. The averments in the writ petition do not show how the provisions of the Act, in terms of S.11 of the Act, would apply to the facts of the case. In our opinion S.11 has no relevance to the context. 7. It is a well established principle that the Court normally would be slow to issue writ of mandamus to compel any person or authority, charged with the duty to perform any act, to do such act unless it is satisfied on the pleading and the evidence in support thereof that the party seeking that relief had earlier made a specific request in that behalf to such person or authority, and that person or authority had declined or refused to comply with that request. The absence of pleadings, much less evidence, that there was such an earlier demand to and refusal by respondents 1 and 2 to order an inquiry into the allegations made by the appellant-petitioner is an additional reason why this Court could not have granted the relief sought by the appellant-petitioner, besides the long and unjustifiable delay in invoking the writ jurisdiction of this Court, 8. We have gone through the decisions cited by Sri Varghese; and we find little in them to advance the case of the appellant-petitioner. The Supreme Court decisions referred to were concerned with the appointment of Commission under the Act by the Government, as the Government in its opinion thought that the appointment of such a Commission was necessary. They are not cases where the Court compelled the Government to order inquiry in terms of the Act into the allegations made. The Division Bench cases of this Court relied on by Sri Varghese do not relate either to the issue of writ of mandamus or anything relating to the provisions of the Act; those decisions also are, therefore, of no help to the appellant-petitioner. 9. For the foregoing reasons, in respectful agreement with the decision of the learned single judge, we dismiss this writ appeal. Dismissed. 9. For the foregoing reasons, in respectful agreement with the decision of the learned single judge, we dismiss this writ appeal. Dismissed. Immediately after the judgment was pronounced, the counsel for the appellant submitted that leave may be granted under Art.133(1)(a) and (b) of the Constitution. Inasmuch as no substantial question of law of general importance deserves to be decided by the Supreme Court is involved in this case, we do not consider that leave to appeal should be granted; accordingly the request is declined. Leave refused. Carbon copy of the judgment may be granted to the Advocate General free of charge and to the counsel for the appellant on usual terms if applied for in that behalf.