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2015 DIGILAW 778 (GUJ)

Suresh Rupshanker Mehta v. State of Gujarat

2015-08-06

R.P.DHOLARIA, V.M.SAHAI

body2015
JUDGMENT : V.M. Sahai, J. 1. By way of this Writ Petition in the nature of Public Interest Litigation, the petitioners have prayed for the following reliefs: "(a) The Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to declare and hold that second respondent has with the oblique motive, deliberately violated the constitutional provisions and violated the oath of office and has further violated the provisions laid down under Arts. 166 and 167 and further be pleased to declare that second respondent never rendered her constitutional duties and the unconstitutional activities of her clearly proved her mala fides; (b) The Hon'ble Court may be pleased to direct the Government of Gujarat to lay before the Legislative Assembly of Gujarat the report of Justice M.B. Shah Commission of Inquiry along with the report on the action taken thereon and to publish the said report and action taken thereon as early as possible; (c) The Hon'ble Court may be pleased to direct the Government of Gujarat to supply copy of the report to the petitioners and to publish the said report for information of the people; (d) Such other and further order/s which may be deemed just and necessary in the facts of the case may be passed." According to the petitioners, the Legal Department of Government of Gujarat issued Notification dated 16-8-2011 appointing a Commission of Inquiry consisting of Hon'ble Mr. Justice M.B. Shah (Retd.), former Judge of Hon'ble Supreme Court of India as Chairman of the Committee under the Commission of Inquiry Act, 1952. The Commission was appointed to inquire into and report in respect of 17 allegations of corruption and malpractice in respect of various transactions alleged to have been committed by the Government of Gujarat. The petitioners state that the Commission has submitted its report to the State Government, but the same has neither been sent to the Governor nor tabled before the Legislative Assembly. 2. Petitioner No. 1 is the Ex-Chief Minister of Gujarat State and petitioner Nos. 2 and 3 are Senior Citizen of the State of Gujarat, who have also appeared before the Justice M.B. Shah (Retired) Commission. 3. We have heard Ms. Amee Yajnik, learned Advocate for the petitioners. 2. Petitioner No. 1 is the Ex-Chief Minister of Gujarat State and petitioner Nos. 2 and 3 are Senior Citizen of the State of Gujarat, who have also appeared before the Justice M.B. Shah (Retired) Commission. 3. We have heard Ms. Amee Yajnik, learned Advocate for the petitioners. It is not disputed by the learned Counsel for the petitioners that the report of the Inquiry Commission has not been tabled before the Legislative Assembly. Attention of this Court is drawn to Arts. 167 of the Constitution of India, which reads as under: "Art. 167 - It shall be the duty of the Chief Minister of each State:- (a) To communicate to the Governor of the State all decisions of the Council of Ministers relating to the administration of the affairs of the State and proposals for legislation; (b) To furnish such information relating to the administration of the affairs of the State and proposals for legislation as the Governor may call for; (c) If the Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council." 4. Ms. Yajnik has also drawn our attention to Sec. 3(4) of the Commission of Inquiry Act, 1952, which reads as under: "Sec. 3(4) - The appropriate Government shall cause to be laid before (each House of Parliament or, as the case may be, me Legislature of the State) the report, if any, of the Commission on the inquiry made by the Commission under sub-sec. (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." 5. Ms. Yajnik has vehemently argued that as contemplated under Art. 167 of the Constitution of India, it is the constitutional duty of the Chief Minister to communicate to the Governor, all decisions of the Council of Ministers relating to administration and affairs of the State and proposals for legislations. In the present case, by not communicating the decision of the Council of Ministers to the Hon'ble Governor, the Chief Minister has clearly violated the constitutional provisions. In the present case, by not communicating the decision of the Council of Ministers to the Hon'ble Governor, the Chief Minister has clearly violated the constitutional provisions. She has therefore, requested to direct the Government of Gujarat to table the report of Justice M.B. Shah Inquiry Commission along with the action taken in report before the Legislative Assembly of Gujarat and also to supply copy of the report to the petitioners and to publish the said report for information of the people at large. Ms. Yajnik has placed reliance on the decision of the Apex Court in the case of Fazalur Rehman vs. State of U.P. AIR 1999 SC 3460 , wherein the Apex Court has observed in Paragraph No. 5 as under: "5. It is appropriate that when in a matter of 'definite public importance', a Commission of Inquiry is appointed under the Commission of Inquiries Act, 1952, the State Government should examine the report expeditiously and decide what action, if any, is required to be taken on that Report promptly. To keep a report pending for me years together, and as, in this case, for a decade, does no credit to anybody. Reports of Commissions of Inquiry should not be allowed to gather dust for years together as it reflects adversely on the utility of such commissions and would affect the credibility of the entire exercise." 6. We have gone through the provisions of Art. 167 of the Constitution of India along with the other Articles. We have also minutely perused the decision of the Apex Court in the case of Fazalur Rehman, AIR 1999 SC 3460 . However, in our opinion, no direction has been issued or any law has been laid down by the Hon'ble Apex Court in the aforesaid case stating that it is mandatory for the Chief Minister or the Governor to place the report of the Inquiry Commission before the Legislative Assembly. 7. In the case of V. Narayana Rao vs. State of A.P. AIR 1987 AP 53 (FB), the Full Bench of the Court has held in Para 35 as under: "35. 7. In the case of V. Narayana Rao vs. State of A.P. AIR 1987 AP 53 (FB), the Full Bench of the Court has held in Para 35 as under: "35. The next contention of the petitioners is that inasmuch as me report of M.R. Commission was not placed on the floor of the Legislature within six months of its submission as required by Sec.3(4), Commission of Inquiry Act, 1952, no action could have been taken thereon by the Government after the expiry of six months. Section 3(4) 'reads as follows: "3(4). The appropriate Government shall cause to be laid before the House of the People or as the case may, the Legislative Assembly of the State, the report, if any, of the Commission on the inquiry made by the Commission under sub-sec. (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." Sub-section (4) was introduced by Amending Act 79 of 1971. Counsel for the petitioners rely upon the objects and reasons appended to the Amending Bill, which is extracted at pages 464 and 465 of the AIR Manual, Volume 6. According to it, sub-sec. (4) was introduced in the light of me experience gained indicating that many Governments do not place the Commission's report before the Assembly at all though they relate to important issues of national interest. It was thought necessary to compel me Government to place the Report before the Parliament or me appropriate Legislative Assembly together with a memorandum of action taken thereon, within a period of six months from the date of submission of the Report. There is no doubt that in this case the Government failed to place the report on the floor of the Legislature for a period of approximately four years and it goes without saying that no one appreciates this delay. But, the question is whether on this account the Report should be treated as non-est or void, as contended by the petitioners and whether it should be held that the action by the Government thereon, viz. issuance of G.O. Ms. No. 166 to 168, is incompetent and invalid. This brings in the question whether sub-sec. (4) of Sec. 3 is mandatory or directory. issuance of G.O. Ms. No. 166 to 168, is incompetent and invalid. This brings in the question whether sub-sec. (4) of Sec. 3 is mandatory or directory. On a consideration of the arguments passed upon us by both sides, we are inclined to hold that the provision is not mandatory. There is no provision in the Act which provides for the consequence that flows from the non-observance of the requirements of sub-sec. (4)." 8. In view of the above, we do not find that it is mandatory for the Chief Minister or the Governor to place the report of the Inquiry Commission before the House of Legislative Assembly. For the aforesaid reasons, we do no find any merits in this Writ Petition in the nature of Public Interest Litigation. Accordingly, this Writ Petition (P.I.L.) stands dismissed. No order as to costs.