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2014 DIGILAW 263 (UTT)

RAMESH POKHARIYA v. STATE OF UTTARAKHAND

2014-06-25

ALOK SINGH

body2014
JUDGMENT Hon’ble Alok Singh, J (Oral). Both these writ petitions were heard together and are being disposed of by this common judgment. 2. Brief facts of the writ petition no. 286 of 2014, inter alia, are that during the pendency of the proceeding before the BIFR in the matter of M/s Sturdia Bio-chemicals Ltd., Rishikesh land concession was granted in respect of M/s Sturdia Bio-chemicals Ltd., Rishikesh and exemption was also granted in favour of M/s Sturdia Bio-chemicals Ltd., Rishikesh exempting to pay land use charges. Writ Petition (PIL) Nos. 61 of 2010, 64 of 2010 and 69 of 2010 came to be filed before the Division Bench of this Court challenging the decision of the Government granting land concession in respect of M/s Sturdia Bio-chemicals Ltd., Rishikesh seeking further directions for the high-level inquiry, including the CBI inquiry. All these three writ petitions were heard together and were disposed of by the Division Bench of this Court vide judgment dated 28.12.2010, Annexure No. 1 to the writ petition. Division Bench of this Court was pleased to issue following directions : “a. The decision contained in the Minutes of the Meeting held on 30th October, 2007; the decision conveyed by the letter dated 14th March, 2008; the decision contained in the Minutes of the Meeting held on 24th September, 2009; the permission granted by the Hon’ble Chief Minister on 26th September, 2009 to grant exemption under the provisions of the 1973 Act; the decision dated 1st October, 2009 to use power under Section 53 of the 1973 Act; and the Notification published on 5th October, 2009 under Section 53 of the 1973 Act, as well as the sanction to construct, are quashed. b. The Government as well as Citurgia are directed to forthwith approach BIFR with a request to delete, from the approved revival Scheme, that part thereof, which permits Citurgia to commercially exploit the land in question and also the direction upon the State Government to grant permission to Citurgia to do so. c. BIFR is directed to forthwith delete that part of the sanctioned Scheme, which authorised Citurgia to commercially exploit the land in question and also the direction contained therein directing the Government to accord permission to Citurgia to do so. d. The District Magistrate, Dehradun, is directed to forthwith take actual physical possession of the land in question and to keep the same in his possession. d. The District Magistrate, Dehradun, is directed to forthwith take actual physical possession of the land in question and to keep the same in his possession. He shall permit Citurgia to use the land in question for the purpose for which it had obtained the same under the conveyance referred to above and for no other purpose. e. The Government is directed to take steps pursuant to the terms and conditions contained in the conveyance, if it is of the opinion that Citurgia has committed breach of the covenants contained therein. 33. Before parting, we feel that Government should enquire into the conduct of its officers pertaining to the subject dealt with above, since such conduct does not inspire public confidence. 34. The writ petitions stand disposed of in the above terms.” 3. Petitioner of WPPIL No. 61 of 2010, feeling aggrieved, filed SLP (C) No. 4680 of 2011 before the Hon’ble Apex Court assailing the judgment dated 28.12.2010. Besides SLP (C) No. 4680 of 2011, other SLPs (C) Nos. 8993 of 2011 and 11324 -11326 of 2011 were also filed. SLP filed by the petitioner of Writ Petition (PIL) NO. 61 of 2010, came to be dismissed by the Hon’ble Apex Court, vide order dated 28.10.2011, however, other SLPs being SLP (C) No. 8993 of 2011 and 11324 – 11326 of 2011 are still pending disposal, wherein legality/validity of the decisions of State Government granting exemption and land use permission is still under consideration. 4. Undisputedly, pursuant to the direction issued, vide judgment dated 28.12.2010 by the Division Bench of this Court, Justice B.C. Kandpal (former Judge of this Court) Commission was appointed by the Government under Section 3 of the Commission of Inquiry Act, 1952 vide notification dated 1.3.2011 to inquire into the conduct of Government officers in the matter of exemption granted in favour of M/s Sturdia Bio-chemicals Ltd., Rishikesh. Justice B.C. Kandpal Inquiry Commission, Dehradun submitted its report dated 9.9.2011 before the State Government. Instead of accepting or rejecting the report dated 9.9.2011 submitted by Justice B.C. Kandpal Commission of Inquiry, vide notification dated 28.3.2013, another One-man Commission of Inquiry under the chairmanship of S.C. Tripathi, IAS (Retd.) was constituted by the State Government, under Section 3 of the Commission of Inquiry Act to inquire into the following matters : “1. Matters related to land concessions in respect of M/s Citugia Bio-chemicals Ltd. Rishikesh. 2. Matters related to land concessions in respect of M/s Citugia Bio-chemicals Ltd. Rishikesh. 2. Allotment of Small and Micro Hydro Power Projects under self identified category in 2007 to 2011. 3. Maha Kumbh Mela 2010. 4. Complaints in respect of Disaster Management work specially after natural disaster in 2010. 5. Irregularities in various Central Government Schemes during 2007-2012. 6. Matters relating to supply of Diancha Seeds in Kharif Year 2010. 7. Allegations made in the report of Tehlka Magazine (Vol. 9 issue no. 19 dated May, 12, 2012).” 5. Meanwhile, WP (PIL) No. 102 of 2011, Uttarakhand Janta Sangharsh Morcha v. State of Uttarakhand was filed. When WPPIL No. 102 of 2011 was taken up for hearing by the Division Bench of this Court, learned Advocate General appearing for the State made statement to the effect that State Government was pleased to appoint another One-man Commission of Inquiry headed by Mr. S.C. Tripathi, IAS (Retd.), therefore, WPPIL No. 102 of 2011 was disposed of vide judgment dated 24.6.2013. Judgment dated 24.6.2013 reads as under :- “The learned Advocate General has submitted that the Government, after considering the report, felt it necessary to appoint another Commission to go into the selfsame subject. That Commission is now seized of the matter. It has been clarified by the learned Advocate General that the Commission, which is now seized of the matter, is also looking into some other matters. We, accordingly, feel that the Government has neither accepted the report under challenge nor has acted thereon. 2. We, accordingly, dispose of the writ petition. It is made clear, however, that the report may be placed before the Commission by the Government or by anyone else, if they so please, for its consideration.” 6. Learned Commission, vide order/notice dated 27.11.2013 issued under Section 8-B of the Act, was pleased to issue notice to the petitioner calling him to show cause as to why adverse report may not be submitted against the petitioner in view of the preliminary findings of the Commission, in view of the fact that prima facie case was made out against the petitioner for serious lapses committed in the matter of granting permission for change of the land use along with waiver of requisite fee. Feeling aggrieved, the petitioner has filed Writ Petition (M/S) No. 286 of 2014. 7. Feeling aggrieved, the petitioner has filed Writ Petition (M/S) No. 286 of 2014. 7. The brief facts of Writ Petition (M/S) No. 287 of 2014, inter alia, are that certain electro-hydro contracts were granted in favour of fifty-six different companies, however, allotment of the electro-hydro contracts were revoked/cancelled/quashed vide order dated 15.7.2-010. WPPIL No. 72 of 2010, WPMS No. 1336 of 2010, WPMS No. 1337 of 2010, WPMS No. 1345 of 2010, WPMS No. 1346 of 2010, WPMS No. 1347 of 2010, WPMS No. 1348 of 2010, WPMS No. 1349 of 2010, WPMS No. 1360 of 2010, WPMS No. 1446 of 2010, WPMS No. 1451 of 2010, WPMS No. 1460 of 2010, WPMS No. 1469 of 2010, WPMS No. 2203 of 2010, WPMS No. 2204 of 2010, WPMS No. 2205 of 2010, WPMS No. 379 of 2011 and WPMS No. 540 of 2011 came to be filed assailing the order dated 15.7.2010, whereby electro-hydro contracts were revoked/cancelled, and for seeking direction to hold CBI as well as other high level inquiries and to take other disciplinary/penal action against the guilty, saying before granting the contracts in favour of different companies neither ecological/environmental impact was considered nor any proper survey was conducted and to extend the benefits in favour of some individuals, electro-hydro contracts were granted and thereafter as eye wash same were cancelled in one stroke. 8. All these writ petitions were taken up together for hearing by the Division Bench of this Court and all these writ petitions were disposed of vide judgment dated 15.7.2011. It was specifically observed by the Division Bench of this Court that environmental impact assessment was not undertaken at all. Division Bench further issued certain guidelines as to how electro-hydro contracts should be granted in future after undertaking different surveys and studies keeping in mind different aspect of the matter. Judgment dated 15.7.2011 was challenged before the Hon’ble Apex Court in SLP (C) No. 23091 of 2011 and 30924 of 2011. It is stated that few other SLPs were also filed against the judgment dated 15.7.2011 and all these SLPs are pending disposal before the Hon’ble Apex Court. In all the pending SLPs, question of legality/validity and propriety in the matter of grant of electro-hydro contracts are still pending disposal. 9. On 28.3.2013, the State Government was pleased to constitute One-man Commission of Inquiry headed by Mr. In all the pending SLPs, question of legality/validity and propriety in the matter of grant of electro-hydro contracts are still pending disposal. 9. On 28.3.2013, the State Government was pleased to constitute One-man Commission of Inquiry headed by Mr. S.C. Tripathi, IAS (Retd.) to inquire into different matters, as reproduced hereinbefore while discussing the facts of WPMS No. 286 of 2014, wherein question of the allotment of small and micro hydro power projects under self-identified category was also one of the subject matters of the inquiry. Learned Commission of Inquiry, vide order/notice dated 19.11.2013, was pleased to summon the petitioner, herein, under Section 8-B of the Commission of Inquiry Act to submit its response. Feeling aggrieved, the petitioner has filed Writ Petition (M/S) No. 287 of 2014. 10. I have heard Mr. Satya Pal Jain, learned Senior Advocate assisted by Mr. Rakesh Thapliyal, learned counsel for the petitioner in both the writ petitions, and Mr. Subhash Upadhyay, learned Chief Standing Counsel assisted by Mr. Sandeep Kothari, learned Brief Holder for the State. 11. In Writ Petition (M/S) No. 286 of 2014, following substantial questions of law arose for adjudication : (i) As to whether the State Government is competent to invoke Section 3 of the Commission of Inquiry Act constituting fresh Commission of Inquiry without accepting or setting aside the first Commission of Inquiry report furnished by the Commission of Inquiry headed by Justice B.C. Kandpal (former Judge of this Court) on 9.9.2011? (ii) As to whether a Commission of Inquiry can be constituted/appointed under Section 3 of the Commission of Inquiry Act to inquire into the conduct and role of different public servants in view of the fact that the matter pertaining to change of land use/grant of concession in favour of M/s Sturdia Bio-chemicals Ltd., Rishikesh is pending disposal in pending SLPs before the Hon’ble Apex Court. In Writ Petition (M/S) No. 287 of 2014 the only substantial question of law arises is as to whether during the pendency of different SLPs before the Hon’ble Apex Court pertaining to the grant/revocation of electro-hydro projects in favour of different companies, a Commission of Inquiry can be appointed to inquire into the role and conduct of different public servants in the matter of grant/revocation of the electro-hydro projects. Facts as narrated hereinbefore are not in dispute. Writ Petition (M/S) No. 286 of 2014 12. Facts as narrated hereinbefore are not in dispute. Writ Petition (M/S) No. 286 of 2014 12. Undisputedly, in compliance of the directions issued by the Division Bench of this Court in the judgment dated 28.12.2010 to inquire into the conduct of the Government Officers pertaining to the concession granted in favour of M/s Sturdia Bio-chemicals Ltd., Rishikesh, the State Government, vide notification dated 1.3.2011, was pleased to constitute/appoint One-man i.e. B.C. Kandpal (former Judge of this Court) Commission of Inquiry; Justice B.C. Kandpal, having inquired into the matter was pleased to submit his report on 9.9.2011. Undisputedly, report dated 9.9.2011 was never placed before the House nor was considered nor was accepted or rejected and, meanwhile, another notification came to be issued on 28.3.2013 constituting One-man Inquiry Commission of Mr. S.C. Tripathi, IAS (Retd.) to inquire into seven different issues, as reproduced hereinbefore, including the issue of grant of concession in respect of M/s Sturdia Bio-chemicals Ltd., Rishikesh. 13. Our country is governed by Rule of Law. As per the fair policy of law, there should be end of litigation or inquiries and multiplicity of inquiries and litigations must be avoided and discouraged. In my considered opinion, since Justice B.C. Kandpal (former Judge of this Court) has submitted his report of Commission of Inquiry on 9.9.2011, therefore, it was not open to the State Government to constitute/appoint second Commission of Inquiry to inquire into the same issue, which was the subject matter of the Commission of Inquiry headed by Justice B.C. Kandpal (former Judge of this Court) without placing report of Justice B.C. Kandpal Commission before the House and without accepting or rejecting the same. Therefore, question No. (i) stands answered in favour of the petitioner and against the State. 14. Undisputedly, Division Bench of this Court in the judgment dated 28.12.2010 was pleased to make certain adverse comments against the Government servants. Undisputedly, the decision taken by the State Government grating some concession in favour of M/s Sturdia Bio-chemicals Ltd., Rishikesh was quashed by the Division Bench of this Court and SLPs are still pending disposal before Hon’ble Apex Court, wherein the legality/validity of the concession granted in favour of M/s Sturdia Bio-chemicals Ltd., Rishikesh is still sub-judiced before Hon’ble Apex Court. 15. 15. In the recent judgment in the case of M/s Siemens Aktiengeselischaft & S. Ltd. v. DMRC Ltd. & Ors., Civil Appeal No. 2068 of 2014, decided on 14.2.2014, Hon’ble Apex Court in paragraph nos. 26 and 27 has held as under: “26. That brings us to the question whether the Government of India was justified in appointing a Committee to test the evaluation of bids and, if so, whether this Court ought to look into the Report of the Committee. There is more than one aspect that needs to be kept in view in this regard. The first and foremost is the fact that the Committee was appointed at a stage when the matter was already pending before the High Court. Considerable time was spent by learned counsel for the parties in debating whether the constitution of the Committee by the Government itself tantamounted to interference with the course of justice, hence contempt. We do not, however, consider it necessary to pronounce upon that aspect in these proceedings especially because we have not been called upon to initiate such contempt proceedings. All that we need say is that once the Government had known that the entire issue regarding the validity of the process adopted by DMRC including the transparency and fairness of the process of evaluation of the bids was subjudice before the High Court of Delhi and later before this Court, it ought to have kept its hands off and let the law take its course. It could have doubtless placed all such material as was relevant to that question before the High Court and invited a judicial pronouncement on the subject instead of starting a parallel exercise. The Government could even approach the High Court and seek its permission to review the process of evaluation either by itself or through an expert Committee if it felt that any such process would help the Court in determining the issues falling for consideration before the Court more effectively. Nothing of that sort was, however, done. The Government could even approach the High Court and seek its permission to review the process of evaluation either by itself or through an expert Committee if it felt that any such process would help the Court in determining the issues falling for consideration before the Court more effectively. Nothing of that sort was, however, done. On the contrary even when the Secretary to the MoUD pointed out that the matter is subjudice and any further action in the matter could await the pronouncement of the Court, the Hon’ble Minister heading MoUD directed the constitution of the Committee with the following terms: “2(1) To examine if a fair, equitable and transparent tender process was followed by DMRC, as per the prescribed guidelines.” 27. We have no manner of doubt that the terms of reference give a clear indication that the process initiated by the Government was a parallel process of the adjudication of the very same issue as fell for consideration before the High Court and at a later stage before this Court. We fail to appreciate how the Government could have possibly done this. Confronted with this situation Mr. Mohan Parasaran, learned Solicitor General, argued that a reference to the Committee was not meant to subvert judicial process but to only find ways and means to formulate policies and procedures for future allotment of contracts. We have no hesitation in rejecting that submission. The Reference Order extracted above speaks for itself. It no where states that the Committee has to look at anything beyond the process of evaluation of tenders received by DMRC. It does not even remotely suggest that the Government is concerned about the procedures that may be followed in the future or anxious to devise transparent methods by which such contract should be allotted. What is notable is that the Committee’s hands were not stayed by the Government even when the High Court had pronounced upon the validity of the procedures adopted by the DMRC and the matter reached this Court. Continuance of the process of review even after the High Court had delivered its judgment amounted to subjecting the judicial pronouncement to an administrative review. There was no question of any such judicial determination or adjudication being subjected to any administrative review albeit in the name of a Committee constituted for the purpose.” 16. Continuance of the process of review even after the High Court had delivered its judgment amounted to subjecting the judicial pronouncement to an administrative review. There was no question of any such judicial determination or adjudication being subjected to any administrative review albeit in the name of a Committee constituted for the purpose.” 16. In view of the dictum of Hon’ble Apex Court, as reproduced hereinbefore, in the case of M/s Siemens Aktiengeselischaft (supra), it was not open to the State Government to constitute/appoint Commission of Inquiry to hold inquiry about the issues, which are directly or indirectly in issues before the Hon’ble Apex Court in pending SLPs. Consequently, question no. (ii) also stands answered in favour of the petitioner and against the State Government. Writ Petition (M/S) No. 287 of 2014 17. Question of law framed in the present writ petition, in view of the discussion made hereinbefore while answering the question no. (ii) in Writ Petition (M/S) No. 286 of 2014, stands answered in favour of the petitioner and against the respondents. 18. Mr. Subhash Upadhyay, learned Chief Standing Counsel appearing for the State submits that since the petitioner has only challenged the notice issued under Section 8-B of the Commission of Inquiry Act in WPMS No. 286 of 2014 and has not challenged the original order under Section 3 of the Act constituting/appointing One-man Inquiry Commission, therefore, this Court should not proceed to quash the same. Mr. Subhash Upadhyay, learned Chief Standing Counsel, further submitted that in WPPIL No. 102 of 2011, decision of the State Government to constitute/appoint Commission of Inquiry under Section 3 of the Act was placed before the Division Bench of this Court and the Division Bench of this Court did not comment on the legality/validity of the notification issued under Section 3 of the Act; therefore, it should be deemed that the Division Bench of this Court has upheld the validity of the notification issued under Section 3 of the Act. 19. Careful perusal of the order dated 24.6.2013 passed in WPPIL No. 102 of 2011 would indicate that this Court has held that the Government has neither accepted the report nor acted upon the report submitted by Justice B.C. Kandpal (former Judge of this Court) and was not called upon to decide the validity of the notification issued under Section 3 of the Act. Therefore, Division Bench of this Court did not opt to enter into the question of the validity/legality of the notification issued under Section 3 of the Act. 20. In my considered opinion if extraordinary jurisdiction of this Court is invoked under Article 226 of the Constitution of India, power of this Court, ordinarily, should not be limited to the extent relief is sought and in appropriate case where this Court, having examined entire material from every angle, finds that root of the case is itself illegal and invalid, then this Court should not keep shut its eyes and must proceed to do complete justice by quashing the initial order i.e. the root of the matter, which has given occasion to issue the order impugned in the present writ petitions. Therefore, statements made by Mr. Subhash Upadhyay, learned Chief Standing Counsel stands overruled. 21. In view of the discussion made hereinbefore, both the writ petitions stand allowed. Notification dated 28.3.2013 as far as it confines to inquiry in item nos. 1 and 2 mentioned therein stands quashed. Consequently, the impugned notices issued against the petitioner under Section 8-B of the Act also stand quashed. 22. In the peculiar facts and circumstances of the case, no order as to costs.