ivil Appeal No 1843 of 1986 etc
From the Judgment and Order dated 24
1986 of the Allahabad High Court in CMA No 3909W of 1986 in WPNo 2042 of 1986
Anil Dev Singh SN Kacker Mrs Shobha Dikshit Umesh Chandra Krishan Chandra and CP Lal for the Appellants
RK Jain Pradeep K Aggarwal Rakesh Khanna RP Singh and RD Upadhyay for the Respondents
These involve common question
It would however be appro priate to deal with the facts of Civil Appeal No 1845 of 1986 which is an appeal from the decision of the High Court of Allahabad in Writ Petition Nos 8145 and 8146 of 1985 decided on 20th November 1985
The other two Civil Appeals deal with identical questions
In order to appreciate the controversy involved it would be necessary to refer to certain facts of the case
Uttar Pradesh Urban Planning and Development Act was enacted by the UP Legislature in 1973
On or about 11th of September 1974 Lucknow had been declared to be a develop ment area by a notification
On or about 24th of September 1984 Land Acquisition Amendment Act 1984 was made effec tive subsequent to the 24th of September 1984
On the 8th of December 1984 a Notification under section 41 and a declaration under Section 6 of the Land Acquisition Act 1894 hereinafter referred to as the Act  in respect of Ujariyaon Housing Scheme Gomti Nagar Phase II was pub lished
On the 28th December 1984 Notification under Sec tion 41 and declaration under Section 6 of the Act in respect of LDA OfficeNagar Maha Palika 96 Office and other offices on BN Road was published
On the 2nd January 1985 Notification under Section 41 and decla ration under Section 6 of the Act in respect of Dalibagh Housing Scheme was published
On the 4th of February 1985 Notification under Section 41 and declaration under Sec tion 6 of the Act in respect of Extension of Kursi Road upto Mahanagar through Vishnupun was published
On 21st February 1985 Notification under Section 41 and declaration under Section 6 of the Act in respect of Ujariyaon Housing Scheme Somti Nagar Phase III was published
In respect of the several of these matters on diverse dates several writ petitions had been moved and orders were passed by the High Court staying taking over of possession of the diverse lands if not already taken over in case notifications under section 41 and section 6 of the Act have been passed simultaneously
As mentioned hereinbefore we are concerned in these appeals with the judgment and order of the High Court of Allahabad dated 20th November 1985 in Writ Petitions Nos 8145 and 8146 of 1985
The petitioners before the High Court and the respondents herein are owners of plots situated in village Sonera Tehsil Kichha District Nainital
Their land was being acquired under the provisions of the Act
A Noti fication under the said Act was issued on 6th of May 1985 declaring that the land in question including the respond ents  land was needed for a public purpose namely for construction of market yard for the Krishi Utpadan Mandi Samiti Kichha
The Notification further contained a decla ration that since there was urgency for the acquisition the provisions of Section 171 A and Section 174 of the Act shall apply and the provisions of Section 5 A of the Act shall not apply
On the same day that is to say on 6th of May 1985 another Notification was issued by the State Government under Section 6 of the Act making declaration that the land in dispute was required for a public purpose namely for the construction of market yard for the Krishi Utpadan Mandi Samiti Kichha
That Notification also con tained a direction as contemplated by Section 171 and l A of the Act authorising the Collector to take possession of the land even before the declaration of the award under Section 11 of the Act
Both the aforesaid notifications were published on the same day namely the 22nd of May 1985
Aggrieved thereby the respondents filed two writ petitions challenging the validity of the said notifications
It was urged on behalf of the respondents before the Division Bench of the High Court of Allahabad that in view of the amendments introduced by the Land Acquisition Amend ment Act 1984 Act No 97 68 of 1984 the declaration as contemplated under Section 6 of the Act could not have been made on the same day on which the notification under section 4 of the Act was published it submitted that now after the amendment the Notification under Section 6 of the Act can only be issued after the Notification under Section 4 was published
The High Court found substance in the said submission
According to the High Court prior to the amendment of the Act by the Amend ing Act No 58 of 1984 it was permissible for the Government to issue Notification under Section 4 of the Act and to make declaration as contemplated under Section 6 of the Act simultaneously and it was further permissible to publish both the notification simultaneously as held by this Court in Srnt Sornawanti  Ors
vs State of Punjab The High Court noted that normally after the issue of the Notification under Section 4 of the Act objections are invited as contemplated by Section 5 A of the Act and after holding enquiry the Collector submits report to the Govern ment and on consideration of the same the Government makes declaration as contemplated by Section 6 of the Act
Posses sion of the land is taken after the award is declared
But in case of urgency where the Government considers it neces sary to acquire the land immediately and to make it possible even prior to the making of the award it has the power to dispense with the provisions of Section 5 A of the Act
Section 17 of the Act confers special power on the Govern ment and the Collector in case of urgency for immediate taking of possession after the issue of the Notification under Section 6 of the Act and without complying with the provisions of Section 5 A of the Act
Section 174 of the Act prior to this amendment conferred power on the Govern ment to direct that the provisions of Section 5 A shall not apply if in its opinion the provisions of sub sections 1 l A and 2 of Section 17 were applicable
The High Court was of the view that on the issue of such a direction by the Government a declaration could be made as contemplated by Section 6 of the Act in respect of the land at any time after the publication of the Notification under Section 4 of the Act
According to the High Court prior to the amendment of Section 174 of the Amending Act No 68 of 1984 a declaration as contemplated under Section 6 of the Act could be made at any time along with the publication of the Noti fication under Section 4 of the Act but after the amendment of Section 174 a declaration as contemplated by Section 6 of the Act can be made only after the date of publication of the notification under Section 41
In view of this amendment Notification under Section 6 of the Act had to be made after the Notification under Section 41 of the Act was published
The expression after the date of publication of the notification as added to sub section 4 of Section 17 of the Act contemp 98 lated the issue of Notification under Section 6 of the Act only after the publication of Notification and under Section 41 of the Act
The High Court was of the view that prior to the amendment a declaration under Section 6 of the Act could be made simultaneously with the publication of the Notification under Section 41 of the Act
But after the amendment a declaration can only be made after the date of publication of the Notification under Section 4
The High Court came to the conclusion that there must be difference of dates between the date of the publication of the Notifi cation under Section 4 and Section 6
After the Amendment according to the High Court both the notifications cannot be published on the same date
The publication of the Noti fication under Sections 4 and 6 of the Act on the same date would be contrary to Section 174 of the Act as amended by Act 68 of 1984 and would render the Notification under Section 6 of the Act invalid
The High Court found that the Notification under Section 6 of the Act containing declara tion that the land in dispute was needed for a public pur pose was issued on 6th of May 1985 and published simultane ously along with the Notification under Section 41 of the Act on the same date namely May 22 1985
This according to the High Court was in clear violation of Section 174 of the Act
In this view the impugned Notification under Section 6 was rendered illegal and as such the appellants were not entitled to take possession of the respondents  land
The High Court accordingly quashed the notification dated 6th May 1985 issued under Section 6 of the Act
The short question with which these appeals are con cerned is whether the declaration under Section 6 of the Act could be issued simultaneously along with the notifica tion under Section 4 of the Act in view of the amendment made to Section 174 of the Act
To decide the question it is necessary to appreciate the scheme of the Act after amendment
Section 4 of the Act envisages publication of preliminary notification where it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company it enjoins in such a situation that a notification to that effect shall be published in the Official Gazette and in certain other daily newspapers and the substance of the notification is to be given at a convenient places in that locality
It is not necessary to dilate on the subsequent procedure as contemplated by Section 4 of the Act
Section 5 of the Act enjoins payment of damages on the acquisition
Section 5 A of the Act provides for hearing of objection which has been notified under Section 4 of the Act and the procedure thereto
Thereafter comes declaration under Sec tion 6 of the Act
The sections provide that after consider ation of the report if any made 99 under Section 5A that a particular land is needed for a public purpose or for a company a declaration in the manner enjoined in section 6 of the Act shah be made
The provi sions of procedure to be followed on declaration under Section 6 of the Act are not directly relevant for the purpose of these appeals
Section 17 of the Act with which we are directly concerned here provides with cases of urgen cy where the Government can dispense with some of the provi sions of the Act especially regarding intiviting objections and hearing of these
As mentioned hereinbefore several objections challeng ing the acquisition had been admitted by the High Court of Allahabad and some of these are the subject matter of appeal in this Court and stay orders preventing the taking of the possession of the land pursuant to the acquisition had been granted on the basis that in view of the Division Bench judgment under appeal herein of the Allahabad High Court there could not be any simultaneous notification under Section 4 and declaration under Section 6 of the Act even in a case where by virtue by invocation of the emergency provi sions Section 5 A of the Act need not be complied with
The Government contends that even after the amendment of sub section 4 of Section 17 of the Act it is possible to have such simultaneous notification under Section 4 and declara tion under Section 6 of the Act in cases where the emergency provisions had been invoked
According to the State a large number of cases have been filed and stay orders obtained from the Court particulars whereof have been mentioned in the grounds of appeal herein
It was submitted on behalf of the appellant that the substitution of the words after the publication of the notification by the words after the date of the notification in sub section 4 of Section 17 of the Act has not made any change in law and as such simul taneous publication on one and the same date of the notifi cation under Section 4 and declaration under section 6 of the Act in case of urgency where Section 5 A had been made inapplicable prior to the amendment by Amending Act No 68 of 1984 have been upheld in a number of decisions of this Court and this position it was submitted continues to be valid even after the amendment by Amendment Act No 68 of 1984
In order to appreciate the contentions urged in sup port of this submission it is necessary to note the signif icant changes that have been made by the Amending Act No 68 of 1984 in Sections 4 and 6 as well as Section 17 of the Act
The relevant sub sections of sections prior and subse quent to the amendment are as follows Unamended Section 41 100 Whenever it appears to the appropriate government that land in any locality is needed or is likely to be needed for any public purpose a notification to that effect shall be published in the official gazette and the Collector shall cause public notice of the substance of such notifica tion to be given at convenient places in the said locality Amended Section 41 Whenever it appears to the appropriate government that land in any locality is needed or is likely to be needed for any public purpose or for a company a notification to that effect shall be published in the official gazette and in two daily newspapers circulating that locality of which at least one shall be in the regional language and the Collector shall cause public notice of the substance of such notifica tion to be given at convenient places in the said locality the last of the dates of such publication and the giving of such public notice being hereinafter referred to as to the date of publication of the notification Unamended Section 62 Every declaration shall be published in the official gazette and shall state the district or other territorial division in which the land is situate the purpose for which it is needed its approximate area and where a plan shall have been made of the land the place where such plan may be inspected Amended Section 62 Every declaration shall be published in the official Gazette and in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language and the Collector shall cause public notice of the substance of such declaration to be given at convenient places in the said locality the last of the dates of such publication and giving of such public notice being hereinafter referred to as the date of the publication of the declaration and such declaration shall state the district or other territorial division in which the land is situate the purpose for which it is needed its approximate area and 101 where a plan shall have been made of the land the place where such plan may be inspected Unamended Section 174 In the case of any land to which in the opinion of the appropriate Government the provisions of sub section 1 of sub section 2 are applicable the appropriate Government may direct that the provisions of Section 5 A shall not apply and if it does so direct a declaration may be made under Section 6 in respect of the land at any time after the publication of the notification under Section 41 Amended Section 174 In the case of any land to which in the opin ion of the appropriate Government the provi sions of sub section 1 or sub section 2 are applicable the appropriate Government may direct that the provisions of Section 5 A shall not apply and if it does so direct a declaration may be made under Section 6 in respect of the land at any time after the date of the publication of the notification under section 4 sub section 1
 It was contended that the amendment of Section 174 by he words after the date of the publication of the notifica tion was necessitated because of the change of the expres sion in sub section 1 of the Section 4 which for the first time gave a definition of the date of the publication of the notification
Similarly in Section 62 the last date of the publication as enjoined in Section 6 and as set out hereinbefore had been defined as the date of publication
For this purpose it was necessary to introduce the expres sion after the date of the publication of the notification under sub section 4 of Section 17 of the Act
It was submitted that the proceedings for acquisition of land commenced from the publication of the notification under Section 41 of the Act and under the provisions of Section 5 A of the Act any person interested in any land which has been notified under Section 41 as being needed or likely to be needed for a public purpose or for a company may within 30 days from the date of the publication of the notification object to the acquisition of the land or of any land in the locality as the case may be
In ordinary cases after hearing objections the State Government makes a decision regarding the acquisition of land and in case it is decided by the State Government that the land is 102 needed for a public purpose or for a company a declaration to that effect is enjoined to be made by the State Govern ment under Section 61 of the Act
Since in normal course declaration is made after objections under Section 5 A of the Act have been considered and disposed of the date of the declaration under Section 62 of the Act has to be subsequent to the date of the notification under Section 41 of the Act but in a case where objections under Sec tion 5 A have been dispensed with simultaneous publication on one and the same date of the notification under Section 41 and the declaration under Section 61 and 2 of the Act can be made simultaneously was the position before the amendment of the Act before 1984
That this was the position in law cannot be disputed in view of the decision of this Court in Smt
Somavanti  Ors
vs The State of Punjab  Ors supra which conclusively held that in a case where Section 5 A was out of the way publication of both notifi cations under Section 4 and declaration under Section 6 in the same issue of the Gazette is not irregular
It may be mentioned that in that case it was found that in the offi cial Gazette of 25th August 1961 a notification as pub lished under Section 4 of the Act to the effect that land belonging to the petitioners was likely to be needed by the Government at public expenses for a public purpose namely for setting up of a factory for manufacturing various ranges of refrigeration compressors and ancillary equipments
The Government had directed that action under Section 17 of the Act shall be taken because there was urgency and that the provisions of Section 5 A shall not apply to the acquisi tion
In the same gazette another notification under Sec tion 6 of the Act dated August 19 1961 was published to the effect that the Governor of Punjab was satisfied that the land was required by the Government at public expenses for public purpose
The notification provided for immediate taking of the possession of the land under Section 172c of the Act
A Bench of five Judges of this Court inter alia held that simultaneous publication of the notification under Section 4 and declaration under Section 6 of the Act in a situation where section 5 A was out of the way was not bad
This view was reiterated by this Court in Babu Singh  Ors
vs Union of India  Ors
 AIR 1979 SC 1713
A Bench of two Judges in that decision held that there is nothing in the provisions of the Act which would come in the way of the Government issuing a notification under Section 6 immediate ly after notification under Section 4 if on applying urgency clause enquiry under Section 5 A is dispensed with and both could be issued on the same day
The question is has the position changed with the changes noted 103 in law hereinbefore
Mr SN Kacker learned counsel who argued this case before us had submitted that the use of the words the date of the publication under Section 4 as well as Section 6 of the Act has the sequel to the amendment made in Sections 4 and 6 of the Act
It was submitted that after enquiry under Section 5 A was dispensed with by application of emergency provisions there could not be any reason or justification  for not allowing publication simultaneously of the notification under Section 4 and declaration under Section 6 of the Act especially so where in urgent cases it was vitally necessary for the Government to do so
It was submitted that where under sub section 2 of Section 17 of the Act there is urgency for acquisition owing to sudden change in various circumstances immediate possession may have to be taken for the purpose of maintaining either the structure or system or irrigation or water drainage road communication or electricity and any delay in taking imme diate possession by not publishing the declaration under Section 6 and notification under Section 4 simultaneously on one and the same date may result in great catastrophe
It was further submitted that the expression after the date of the publication of notification have no bearing on the exercise of power or urgency necessitating simultaneous publication of the notification under Section 41 and declaration under Section 6 of the Act
It was further submitted on behalf of the appellant that the acquisition proceedings commence with the publication of the notifica tion under Section 4 of the Act besides publication of notice of substance of such notification at convenient places in the locality
This was required to be done under Section 41 of the Act prior to the amendment of Section 41 of the Act by Act No 68 of 1984
As a result of amend ment of Section 41 by Act No 68 of 1984 it is now laid down that notification under Section 41 of the Act that land in a locality is needed or likely to be needed for any public purpose or for a company shall be published in the official gazette and in two daily newspapers circulating in that locality of which at least one shall be in a regional language and the Collector shall also cause public notice of the substance of such notification the last of the dates of such publication being hereinafter referred to as the date of the publication of the notification
Similarly under Section 62 of the Act it has been provided that as a result of amendment by Act No 68 of 1984 every declaration shall be published in the official gazette and two daily newspapers circulating in the locality in which the land is situated of which at least one shall be in the regional language and the Collector shall cause public notice of the substance of such declaration to be given at convenient places in the locality in which the land is situated the last of the dates of such publication and the giving of such public
104 notice being hereinafter referred to as the date of the publication of the declaration
Under both Sections 62 and 41 the date of publication having been specified amend ment had to be made under subsection 4 of Section 17 of the Act and it was laid down that in case of urgency the appropriate Government may direct that the provisions of Section 5 A of the Act shall not apply and it so directs that the declaration be made under Section 6 in respect of the land at any time after the date of the publication of the notification under sub sections 1 of Section 4 and the addition of the words the date of have not brought about any change in law at all
It was a verbal change necessitat ed by the amendment in Section 4 and Section 6 as noted above and the position in law continues as it was before
Mr Anil Dev Singh also supported Mr Kacker appearing in other appeals being Civil Appeal Nos 1843 and 1844 of 1986
On the other hand Mr RK Jain canvassed the view that if the words have changed adherence must be given to the change of the expression used
Our attention was drawn by Mr Jain to a decision of this Court in Collector District Magistrate Allahabad  Anr
vs Raja Ram Jaiswal  There the facts were however slightly different
In that case the Hindi Sahitaya Sammelan Prayag had ob tained a large open land from Municipal Board in 1953 for constructing Hindi Sangrahalaya but the land was lying vacant and unutilised
In the vicinity of the Sammelan s campus was the land of the respondent who with a view to construct a sound proof air conditioned cinema theatre thereon sought certificate of approval from the DM under Rule 3 read with Rule 72 of the UP Cinematograph Rules 1951
The Sammelan vehemently opposed to that proposal on the ground that a cinema theatre in the vicinity would be destructive of culture and academic environment of the institute
Overruling the objection the DM granted the certificate to the respondent
Thereupon the Sammelan made an application to the Government for acquiring the respond ent s land as according to it the land was needed by it for the purpose of extension of Hindi Sangrahalaya though later it shifted its stand to need for construction of Natyashala and Rangmanch and ultimately maintained that it would devise schemes for proper utilisation as and when the land is made available
Although the Collector on whom the statute confers power to initiate proceeding for acquisition himself was satisfied that Sammelan sought acquisition not because it required the land but it wanted to stop or do away with the cinema theatre but ultimately a notification was issued under Section 41 of the Act stating that the land was needed for a public purpose namely for extension of Hindi Sangrahalaya of the 105 Sammelan
The notification was issued in the official ga zette and the substance of the notification was also pub lished in the locality
But since the plot number of the land was wrongly mentioned in the notification a corrigen dum was published cancelling and superseding the earlier notification and correcting the plot number
The notice of the substance of the second notification was not published in the locality
As the earlier notification had no rele vance to the plot of the respondent there was admittedly no notice of the substance of the notifications in the locali ty
Questions for determination were 1
Whether the requirement under the second part of Section 41 regarding giving public notice of the substance of the notification in the locality is mandatory and its non compli ance is fatal to the acquisition proceedings 2
Whether the acquisition proceeding was vitiated by legal mala fides 3
Whether the notification under Section 4 was invalid as it had been issued without first complying with Rule 4 of the Land Acqui sition Companies Rules 1963 This Court answered the first two questions in the affirmative and left the third question open
This Court held that the publication of the notice in the locality as required in the second part of Section 41 of the Act was mandatory and unless that notice was given in accordance with the provisions contained therein the entire acquisi tion proceedings would be vitiated
The Court further held that the assumption that the sole purpose behind publication of a notice in the locality under Section 41 was to give an opportunity to the person interested in land to object to the acquisition under Section 5 A of the Act was not well founded
Therefore it could not be said that where such person files his objections the purpose was achieved and that the failure to give public notice in the locality needed not to be treated as fatal to the proceedings
We have examined the observations of this Court at page 13 of judgment upon which reliance has been placed on behalf of the respondent
We are however of the opinion that in view of the significant difference in the set of facts with which this Court was dealing with in that case the observations therein are not relevant for our present purpose
Reliance was also placed on certain observations of this Court in Shri Balaganesan Metals vs MR Shanmugham Chetty  Ors 1987 2 106 SCC 707 where this Court dealing with the provisions of Section 103c of TN Buildings Lease and Control Act 1960 observed that it was a settled rule of the interpreta tion of statutes that provisions of an Act should be inter preted in such manner as not to render any of its provisions otiose unless there were compelling reasons for the Court to resort to that extreme contingency
It was submitted that the use of the expression after the date of the publication of the notification in sub section 4 of Section 17 would become otiose if it is not construed as holding that simul taneous publication of notification under Section 4 and declaration under Section 6 are not permissible
In Raja Satyendra Narayan Singh  Anr
vs State of Bihar  Ors this Court had to deal with Bihar Land Reforms Act 1950 and it was observed that while inter preting statutes plain meaning has to be ascertained and the statute has to be read as a whole and in the context and that statutory rules should be harmoniously read with the statute
The basic principle it was reiterated at page 325 of the report of construction of every statute was to find out what is clearly stated and not to speculate upon latent imponderables
The scheme of the Act also must be looked into
In interpreting the statutes it is safer to rely on the obvious meaning rather than to investigate the imponder ables
It is true that the expression after the date of the publication of the notification introduced in Section 174 can be explained away as making no change from the provi sions of law by reading it along with the amendment made in Section 4 whereby in different situation in section 4 the last date of publication of the notice has been determined as the date of the publication of the notification and similarly in Section 6 a date of the publication of the notice has been provided for
But the words after the date of the publication of the notification in sub section 4 of Section 17 read simpliciter clearly indicate that decla ration under Section 6 had to be made after the publication of the notification meaning thereby subsequent to the date of the publication of the notification
1t appears to us that there is nothing in the scheme of the Act which mili tates against such a construction
At times where emergency provisions are invoked emergent action may be taken but in such a situation in view of the state of law that was before it the legislature has made a conscious change which cannot be explained away merely because this is as a consequence of the changes in Sections 4 and 6 of the Act
Reliance was placed on behalf of the appellant on Lord Howard 107 de Walden vs IRC  for the proposition that no alteration in meaning by alteration of language can result unless the requirement of the English language demand it or those requirements permit it and the sense of the section demands it
In our opinion m this case in view of the alteration of the language and meaning and the meaning of the language used and the sense will be in consonance with the interpretation that the change was intended
Simi larly in Hopes vs Hopes  it was the proposition that changes in the word may be because the draftsman wanted to improve the style
But in this case the style is not improved and the expression after the date  as indicated above becomes otiose
It is job of the Court to interpret the intention of the legislature by the words used
The fairest and the most rational method to interpret the will of the legislature is by exploring his intentions at the time when the law was made by signs the most natural and probable says Blackstone in his Commentaries on the Laws of England  fascimile of 1st edition of 1765 Univer sity of Chicago Press 1979 Volume I p 59
And these signs are either the words the context the subject matter the effects and consequence or the spirit and reason of the law
The words have to be understood in their usual and most known signification
If that be so then the legislature must have had some intention in choosing the expression after  before date of publication of the notification in sub section 4 of Section 17 of the Act while making amend ment by Amending Act No 68 of 1984
It is true that there were some changes giving the meaning of the date of the publication in Section 41 and 2 as well as Section 62 of the Act
But for that there was no need for the use of the expression after the date 
If that be the position then we must accept the interpretation put upon the amended clause by the High Court in the judgment under appeal
It will however be upon to the appellants to issue a fresh declaration under section 6 if so advised within the period contemplated in the proviso to section 61 of the Act read with its first explanation
In that view of the matter the appeal must fail and is accordingly dismissed
There will be no order as to costs
In the view that we have taken Civil Appeals Nos 1843 and 1844 of 1986 are also dismissed without costs
NVK Appeals dismissed


Summary:
A Committee consisting of two Judges of the High Court was constituted by Delhi Administration to enquire into certain incidents in January 1988 involving the lawyers and the police sequel to an alleged incident of a lawyer being apprehended by the students of a College and banded over to the police on the accusation of committing an offence within the campus of the said College and his subsequently being brought in handcuffs by the police for production before a Magistrate 21 who ultimately discharged him with direction to the Commis sioner of Police to take action against the guilty police officials
In its interim report the Committee observed that it had 10 examine the conduct of various police officers and in particular among others the petitioners and recommended the transfer of the petitioners from their posts
In pursuance of a notice issued by the Committee under Rule 52a of the Rules statements of cases on behalf of the High Court Bar Association and the Commissioner of Police together with the supporting affidavits were filed before the Committee
The Police were required to be ready for examination from May 16 1988 onwards but the counter affidavit and the list of witnesses had not been filed till 17th May 1988 on which date the Commissioner of Police submitted two applications praying for postponement of hearing and for calling upon the Bar Association to start their evidence first and to call upon the Commissioner of Police to adduce the evidence thereafter
Rejecting these applications the Committee passed an order saying that since the Police had failed to file their counter affidavit or list of witnesses the petitioners should be present in Court on May 19 1988 for crossexamination
On the petitioners  refusing to enter the witness box for taking oath for cross examination the Committee decided to file complaints against the petitioners for an offence under section 178 of the Indian Penal Code and in pursuance of which complaints were filed against the petitioners in the Chief Metropolitan Magistrate s Court under sub section
4 of section 5 of the Commissions of Enquiry Act 1952 read with section 346 of the Code of Criminal Procedure 1973
The petitioners challenged these orders in this Court by way of writ petitions and Special Leave Petitions
This Court passed an order on June 2 1988 directing the Commit tee to reconsider the whole question relating to the order in which the witnesses had to be examined in the case
In pursuance of the aforesaid order the Committee passed an order on 29th June 1988 holding that the concept of burden of proof was not quite relevant in the proceedings before a Commission under the Act which had been given free hand to lay down its own procedure subject of course to the provisions of the Act and the rules made thereunder and that it would be difficult for the committee to lay down 22 the manner in which the witnesses were to be examined foregoing its right to examine any witness at any stage if his statement appeared to be relevant that merely because there were allegations against a particular person he would not be said to be covered under section 8 B which required a positive order from the Committee and that when the Commit tee mentioned that it was to examine the conduct of various Police Officers and others it did not have in view section 8 B of the Act
The Committee specifically held that the three other persons to whom notices had been issued under section 8 B would be examined at the end of the inquiry
On August 18 1988 this Court quashed the orders of the Committee directing the filing of the complaints and the criminal proceedings against the petitioners before the Metropolitan Magistrate and held a that the Delhi Adminis tration had to examine first all its witnesses as required by Rule 55a of the Rules framed under the Act even those witnesses who may have filed affidavits already may first be examined in chief before they were cross examined since it was stated that when the affidavits were filed the deponents did not know what the other parties who had also filed affidavits had stated in their affidavits the ques tion whether a party had the right of cross examination or not shall be decided by the Committee in accordance with section 8 C of the Act the direction to the Delhi Administration to examine its witnesses first did not apply to those witnesses who fell under section 8 B of the Act who had to be examined at the end of the inquiry as opined by the Committee itself b that the petitioners were persons who fell under section 8 B of the Act and had to be dealt with accordingly and c that if the three persons to whom notices under section 8 B had been issued were to be examined even according to the Committee at the end of the inquiry there was no justifia ble reason to deny the same treatment to the petitioners who were in the same position as those three persons the action of the Committee in asking them to be cross examined at the beginning of the inquiry was therefore discriminatory mere non issue of notices to them under section 8 B ought not to make any difference if they otherwise satisfied the condi tions mentioned in section 8 B the issue of such a notice was not contemplated under section 8 B of the Act it was enough if at any stage the Commission considered it necessary to inquire into the conduct of any person and such person would thereafter be governed by section 8 B of the Act
Reasons for this order were to be given later
Giving reasons for the above order the Court HELD 1
Recourse to procedure under section 8 B of the Commis 23 sions of Enquiry Act 1972 is not confined to any particular stage and if not earlier at any rate as soon as the Com mittee made the unequivocal declaration of its intention in its interim report to examine the conduct of the two peti tioners it should have issued notice under section 8 B to the two petitioners if it was of the view for which view there is no justification that issue of a formal notice under section 8 B was the sine qua non for attracting that Section
At all events the Committee could not deny the petitioners the statutory protection of section 8 B by merely refraining from issuing a formal notice even though on its own declared intention the section was clearly attracted
42C E State of Jammu and Kashmir vs Bakshi Ghulam Mohammad 1966 Suppl
SCR page 401 and State of Karnataka vs Union of India  Another 1978 2 SCR page 1 relied on
21 The use of the word or  between clauses a and b of section 8 B of the Act makes it clear that section 8 B would be attracted if requirement of either clause a or clause b is fulfilled
Clause a of section 8 B applies when the conduct of any person is to be enquired into whereas clause b applies to a case where reputation of a person is likely to be prejudicially affected
42B 22 The fact that no formal notice had been issued under section 8 B would constitute no justification for not treating a person to be covered by that section if otherwise the ingre dients of the said section were made out
Having once stated in its interim report in unequivocal terms that the conduct of these two petitioners among others was to be examined it was not open to the Committee to still take the stand that section 8 B was not attracted in so far as they were concerned
42B C 23 Keeping in view the nature of the allegations made in the statements of case and the supporting affidavits filed on behalf of the various Bar Associations including the Delhi High Court Bar Association requirement of even clause b of section 8 B was fulfilled inasmuch as if those allegations were proved they were likely to prejudicially affect the reputation of the two petitioners
In view of the specific term of reference which contemplated taking of stringent action against all those responsible even the career of the petitioners as police officers was likely to be affected in case an adverse finding was recorded against them and the principle that the report of a Commission of Enquiry has no force proprio vigore does not on a pragmatic approach to the consequences seem to constitute sufficient safeguard so far as the petitioners are concerned
43C E 24 The reason for the importance attached with regard to the matter of safeguarding the reputation of a person being prejudicially affected in cl
b ors
8 B of the Act is not far to seek
43E F Blackstone s Commentary of the laws of England Vol I IVth Edition Corpus Juris Secundum Vol 77 at page 268 and DF Marion vs Davis 55 American Law Reports page 171 referred to
31 Section 8 B inter alia contemplates an opportunity being given to the person governed by the said section to produce evidence in his defence whereas section 8 C inter alia gives him the right to cross examine the witnesses who depose against him
45D Not only that calling upon a person governed by section 8 B to produce evidence in his defence at the very inception of the inquiry is a contradiction in terms inasmuch as in this situation such a person would really be required to disprove statements prejudicial to him of such witnesses who are yet to be examined it would also reduce the right of crossexam ination by such person to a mere formality for the obvious reason that by the time the witnesses who are to be crass examined are produced the defence of such person which would normally constitute the basis for the line and object of cross examination would already be known to such witness es and they are likely to refashion their statements accord ingly
45E F 32 Perhaps in a case where there is no other witness to give information about the alleged incident about which the inquiry is being held and the only person or persons who could give such information is or are the person or persons who are likely to be adversely affected by the inquiry it may be necessary to depart from the above view as a matter of necessity
But this is not one such case
There are admittedly any number of other persons who can give evidence about what happened on the relevant dates
45G Since the two petitioners clearly fell within the cate gory of persons contemplated by section 8 B of the Act and were consequently entitled to the same treatment as has been accorded by the Committee to the persons to whom notice has been issued by it under the said section the Committee was not justified in calling upon the two petitioners to stand in the witness box for cross examination at the very initial stage of the enquiry
54B D 33 The apprehension that in case a person governed by section 8 B 25 was to be examined at the end and at that stage such person even at the risk of not producing his defence for some reason chooses not to appear as a witness the Committee would be deprived of knowing the facts in the knowledge of such person and such a course would obviously hamper the enquiry is more imaginary than real inasmuch as the power of the Commission to call upon any person to appear as a wit ness under section 4 of the Act which in terms is very wide and is not circumscribed by fetters of stage would be available to the Commission and it would be entitled to call such person as a witness even at that stage
46A C 41 In view of the provisions contained in sections 4 to 6 of the Act and the rules framed thereunder a person could not on the belief that he was covered by section 8 B avoid the consequence of sections 178 and 179 by claiming absolute immuni ty from binding himself by an oath or affirmation for an swering questions put to them
51H 52A Mc Grain vs Daugherty 71 L ed
580 Uphaus vs Wyman   Sinclair vs United States   Kastigar vs United States  and Brown vs Walker40 Led 819 referred to
However a valid justification put forth by the witness was sufficient ground to make him immune from prosecution
52F Watkins vs United States   Flaxer vs United States  and Murphy vs Waterfront Commission of New York  referred to
In the instant case the petitioners are not asserting that they could not be required at all to appear as a wit ness before the Committee and make statement on oath
It was submitted on their behalf that they did not either wish to delay the proceedings or to show disrespect to the Commit tee but only wanted to protect their own interest by making the submission which they made before the Committee as per legal advice given to them namely that they being covered by section 8 B of the Act their defence would be put to serious jeopardy and will be prejudicially affected if they were required to appear in the witness box for crossexamination at the very inception of the inquiry even before statements of witnesses proving the accusations against the petitioners had been recorded which they were entitled to defend
52B E 42 On the view of the Committee that persons covered by 8 B were to be examined at the end of the enquiry the fact that an affidavit of the petitioner was on record could hardly justify the petitioner being 26 called upon to enter the witness box at the very inception
55C Smt
Indira Gandhi and another vs Mr JC Shah Commis sion of Inquiry ILR 19801 Delhi 552 referred to
43 Had the Committee not been labouring under the misapprehension that the petitioners were not covered by section 8 B because no notices under that section had been issued to them notwithstanding the fact that their conduct was to be examined on its own declared intention it would obvi ously not have required the petitioners to take oath for being cross examined at the stage at which it did so
The subsequent orders of the Committee directing complaints to be filed against the petitioners for an offence punishable under section 178 IPC and the act of filing such complaints were the consequences of the said misapprehension
55F G Since the petitioners were covered by section 8 B the action of the Committee in compelling the petitioners to enter the witness box for being cross examined when even according to it persons similarly situated were to do so at the end of the inquiry was in itself discriminatory
There was there fore valid justification for the refusal by the petitioners to take oath for cross examination at the stage when they were required to do so
55H 56A B Therefore the Committee should not have in the instant case directed the filing of a complaint against either of the petitioners for an offence punishable under section 178 IPC
56C 5
Since the action of the Committee in holding that the petitioners were not covered by section 8 B of the Act and com pelling them to enter the witness box on the dates in ques tion was discriminatory and the orders directing complaint being filed against the petitioners were illegal it is a case involving infringement of Articles 14 and 21 of the Constitution
In such a situation the power of this Court to pass an appropriate order in exercise of its jurisdiction under Articles 32 and 142 of the Constitution cannot be seriously doubted particularly having regard to the special facts and circumstances of this case
56D El The orders directing filing of complaints being invalid the consequential complaints and the proceedings thereon including the orders of the Magistrate issuing summons cannot survive
56E F 6
If the petitioners are compelled to face prosecution
in spite of 27 the finding that the orders directing complaint to be filed against them were illegal it would cause prejudice to them
Therefore this Court can interfere in the matter
56G 7
Apart from the directions contained in this Court s order dated 18th August 1988 it is not expedient to lay down any particular rigid procedure to be followed by the Committee with regard to sequence in which witnesses were to be examined by it
41G H