IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.12.2011 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.P.Nos.18277 & 18883 of 2011 W.P.No.18277 of 2011 Vijayalakshmi Shanmugam .. Petitioner -vs- 1. Chief Secretary Fort St.George, Chennai 2. Justice (Retd.) S.Thangaraj NCB 28, PSK Raja Salai, Chennai-28 3. Ms.Jayalalitha Jayaram Chief Minister, Poes Gardens Chennai .. Respondents Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, calling for the records and quashing the impugned G.O.Ms.No.530 dated 22.6.11 appointing the 2nd respondent as the one-man Commission, as being arbitrary, mala fide and violative of section 3(1) of the Central Act 60 of 1952 and consequently direct the 1st respondent to appoint an untainted and non-partisan individual to conduct the inquiry contemplated in the said G.O., after legislative clearance. For Petitioner :: Mr.Manikandan Vathan Chettiar For Respondents :: Mr.A.Navaneethakrishnan Advocate General assisted by Mr.S.Venkatesh, Govt. Pleader W.P.No.18883 of 2011 Thangam Thennarasu .. Petitioner -vs- 1. The Chief Secretary State of Tamil Nadu Fort Saint George Chennai-9 2. The State of Tamil Nadu rep by its Secretary https://hcservices.ecourts.gov.in/hcservices/ Public Department (Buildings) Fort Saint George Chennai-9 3. Miss.J.Jayalalithaa The Hon'ble Chief Minister State of Tamil Nadu Fort Saint George Chennai-9 4. Justice Mr.S.Thangaraj (Retd.) No.2040, Vasanth Colony Anna Nagar West Chennai-40 .. Respondents Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorari, calling for the records of the 1st respondent in G.O.Ms.No.530, Public Department (Buildings) dated 22.06.2011, constituting the one-man commission of inquiry headed by the 4th respondent for inquiring into the irregularities in the construction of the new Secretariat complex, Omandurar Government estate, Chennai-2 and quash the same. For Petitioner :: Mr.R.Viduthalai Senior Counsel for Mr.M.Dhandapani For Respondents :: Mr.A.Navaneethakrishnan Advocate General assisted by Mr.R.Vijayakumar Addl. Government Pleader ORDER D.MURUGESAN, J. Both the writ petitions question the G.O.Ms.No.530, Public (Buildings) Department dated 22.6.2011 appointing a Commission of Inquiry to inquire into the causes and circumstances leading to certain alleged irregularities in the construction of the New Secretariat Complex in Omandurar Government Estate, Chennai. The Notification directed to be published in the said Government Order reads as under:- “WHEREAS, it has been brought to the notice of the Government that there has been certain alleged irregularities like excess expenditure, irregularities causing loss to the exchequer, whether all statutory approvals AND WHEREAS, the Government of Tamil Nadu is of the opinion that it is necessary to appoint a Commission of Inquiry for the purpose of making an inquiry into a definite matter of public importance hereinafter specified; NOW THEREFORE, in exercise of the powers conferred by sub-section (1) of Section 3 of the Commissions of Inquiry Act, 1952 (Central Act LX of 1952), the Governor of Tamil Nadu hereby https://hcservices.ecourts.gov.in/hcservices/ appoints a Commission of Inquiry consisting of a single member, namely, Hon'ble Justice Thiru S.Thangaraj, Retired Judge of Madras High Court. 3. The terms of reference of the Commission of Inquiry shall be as follows, namely:- a. To inquire into the causes and circumstances leading to the alleged irregularities like excess expenditure, irregularities causing loss to the exchequer, whether all statutory approvals and clearances were obtained, inordinate delay and deficiency in standards of construction in the construction of New Secretariat Complex at Omandurar Government Estate, Chennai-2; b. To inquire whether there was any lapse or abuse of position on the part of the Government Officials/Public Servants; c. if such allegations are proved true, then to suggest suitable ways and means to prevent such recurrences in future; and d. To make appropriate recommendations as the commission deems fit. 4. The Commission will complete its inquiry and submit its report to the Government within a period of three months from the date of publication of this Notification in the Tamil Nadu Government Gazette. 5. AND WHEREAS, the Government of Tamil Nadu are of the opinion, having regard to the nature of the inquiry to be made by the said Commission of Inquiry and other circumstances of the case, that all the provisions of sub-sections (2), (3), (4) and (5) of Section 5 of the Commissions of Inquiry Act, 1952 (Central Act LX of 1952) shall be made applicable to the said Commission of Inquiry. 6. NOW THEREFORE, in exercise of the powers conferred by sub-section (1) of Section 5 of the Commissions of Inquiry Act, 1952 (Central Act LX of 1952), the Governor of Tamil Nadu hereby directs that all the provisions of the said sub-sections (2), (3), (4) and (5) of the said Section 5 of the said Act shall apply to the said Commission of Inquiry.” 2. The following are some of the facts, as culled out from the petitions, leading to the present litigation. The Legislative Assembly Complex at Fort Saint George was constructed by the East India Company in the year 1640 AD. After independence, the building was used as the Legislative Assembly with its administrative wing. The D.M.K. political party formed the Government in the year 2006 and the Government identified the Omandurar Government Estate as the https://hcservices.ecourts.gov.in/hcservices/ venue for the construction of New Secretariat and Legislative Assembly complex. The building was constructed in two blocks, namely, Block-A measuring 9.3 lakh sq.ft., consisting of 700 rooms to house the assembly hall, rooms for Hon'ble Ministers, opposition leaders, Chief Secretary and all other Secretaries apart from a hall for the Legislative Council with a parking facility for 100 cars. Block-B, Administrative Wing, is an eight-storeyed building measuring 7.43 lakh sq.ft., including a convention hall with a seating capacity of 1200, guest house of 50 suites apart from the multi-level car parking facility for 700 cars. The New Secretariat complex was made operational till 13.3.2010. 3. After the A.I.A.D.M.K. political party won the general elections held during May, 2011, it was decided to use the Legislative Assembly complex at Fort Saint George instead of the New Secretariat Complex at Omandurar Government Estate. Accordingly, the assembly sessions are being held in the Legislative Assembly complex at Fort Saint George from May, 2011. Thereafter, by the impugned order, the Government has appointed a Commission of Inquiry. 4. The petitioner in W.P.No.18277 of 2011 belongs to “India Against Corruption” movement. It is her specific grievance that though monumental corruption and violation of statute need to be probed and in that context the Government is entitled to appoint a Commission of Inquiry, nevertheless, the Hon'ble Mr.Justice S.Thangaraj, a retired Judge of this Court, ought not to have been appointed as the one-man Commission of Inquiry to probe the alleged irregularities. According to the petitioner, the learned Judge passed an order in criminal revision petition in favour of the present Chief Minister and the said order was taken to the Supreme Court and was erased. The retired Judge had enjoyed a jaunt in Malaysia on the hospitality of a goonda detainee facing multiple cheating cases along with a practising lawyer sometime during the year 2000. Hence, he should not have been appointed as the one-man Commission of Inquiry. It is the further grievance of the petitioner that the consent of the Hon'ble Chief Justice of the Madras High Court was not obtained before appointing the retired Judge as the one-man Commission of Inquiry. She would also aver that the address of the retired Judge in the one-man commission has been wrongly notified, showing the total non-application of mind by the first respondent- Chief Secretary before issuing the impugned Government Order. 5. The petitioner in W.P.No.18883 of 2011, the present Member of Legislative Assembly and a former Minister for Education, has questioned the impugned Government Order on two grounds, that the present Chief Minister who appointed one-man commission of inquiry is biased against the D.M.K. Government and particularly against the former Chief Minister. His further grievance is that the issue of Government Order at the instance of the present Chief Minister is mala fide only to wreak political vengeance. The order is unfair, arbitrary, unconstitutional and suffers from malice in law. It is also his grievance that for issuing the Government Order, no materials were available before the Government. 6. Mr.Manikandan Vathan Chettiar, learned counsel for the petitioner in W.P.No.18277 of 2011 has reiterated the grounds raised https://hcservices.ecourts.gov.in/hcservices/ in the affidavit filed in support of the writ petition. Mr.R.Viduthalai, learned senior counsel for the petitioner in W.P.No.18883 of 2011, apart from the averments made in the affidavit, would submit that there were no materials for passing the impugned Government Order and in the absence of materials, the impugned order is unsustainable and is liable to be set aside. He would further submit that the results of the general election were announced on 13.5.2011 and even before the Hon'ble Chief Minister assumed charge, she made an announcement on 15.5.2011 to the effect that a policy decision had been taken that the New Secretariat complex would not be used to hold the assembly sessions. Such an announcement would indicate the arbitrary exercise of power by the Hon'ble Chief Minister. 7. On the other hand, Mr.A.Navaneethakrishnan, learned Advocate General appearing for the State has submitted that there were enough materials available with the Government before the impugned order was passed. He would also submit that considering those materials only, the Government decided to constitute the Commission of Inquiry only to inquire into those facts and submit a report with its recommendations to the Government. There is absolutely no force in the contentions of the petitioners as to the malice action of the Government in setting up the Commission of Inquiry. According to the learned Advocate General, it is totally unsustainable to plead bias on the Hon'ble Chief Minister in appointing Justice S.Thangaraj (Retd.) to head the one-man Commission of Inquiry. The allegation that the order in the criminal revision petition having been erased by the Apex Court and thereby he cannot be appointed is also without substance, as the learned Judge had passed the order in the course of his judicial functions and it was only argued before the Apex Court that number of witnesses had been examined and therefore quashing of the proceedings was bad. Nevertheless, the Apex Court had only permitted the respondent therein to withdraw the criminal revision petition filed before the High Court and in that view of the matter only, the Apex Court held that the order in the criminal revision petition would stand erased. Hence, the challenge to the appointment of one-man commission has to be rejected. So far as the contention of Mr.Manikandan Vathan Chettiar, learned counsel for the petitioner in W.P.No.18277 of 2011 as to the jaunt of the learned Judge to Malaysia is concerned, the learned Advocate General would submit that it is only an allegation and even after the report of his foreign trip, the learned Judge had discharged his judicial functions and merely because of the report, it cannot be said that he ought not to have been appointed as one-man commission to have a fair enquiry. 8. After considering the averments in the affidavits of both the petitioners, the counter affidavit of the first respondent-Chief Secretary to Government and the submissions made by the respective learned counsel for the petitioners and the learned Advocate General, the following questions emerge for our consideration: (i) Whether the Government should consult the Hon'ble Chief Justice of Madras High Court before appointing a retired Judge of this Court as the one-man Commission of Inquiry? (ii) Whether the impugned order is bad for non-application of mind when it refers to a wrong address of the appointee of one-man Commission of Inquiry? https://hcservices.ecourts.gov.in/hcservices/ (iii) Whether the Government should have materials before taking a decision to appoint the Commission of Inquiry and whether on the ground that there were no materials available on the date when such commission of inquiry was appointed, the Government Order would be bad? (iv) Whether the one-man Commission of Inquiry, namely, the retired Judge of this Court is biased and consequently there is a reasonable apprehension as to a fair enquiry? (v) Whether the Government Order is bad on the ground that it suffers from arbitrariness, unfairness and malice in law? 9. Point No.(i): In terms of sub-section (1) of Section 3 of the Commissions of Inquiry Act, 1952, the appropriate Government may, if it is of opinion that it is necessary so to do, by a notification in the Official Gazette, appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance. Sub-section (2) of Section 3 contemplates that the Commission may consist of one or more members appointed by the appropriate Government and sub-section (3) of Section 3 contemplates that 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. That provision does not contemplate any prior consultation by the Government with the Hon'ble Chief Justice of the High Court before appointing a retired Judge of the High Court. In fact, the said provision does not even require that only a retired Judge of the High Court should be appointed, as the discretion to appoint a Commission of Inquiry is vested only with the appropriate Government. Hence, the contention that the Government should consult the Chief Justice of the High Court before appointing the retired Judge as a Commission of Inquiry is not well founded, as the question of concurrence would arise only if the statute contains a provision to that effect. It is also the contention of Mr.Manikandan Vathan Chettiar, learned counsel for the petitioner in W.P.No.18277 of 2011 that such consultation is only a long standing convention, though the provisions of the Commissions of Inquiry Act do not require such consultation as a pre-condition for appointment. Hence, point no.(i) is answered accordingly. 10. Point No.(ii): It is the contention of Mr.Manikandan Vathan Chettiar that wrong address of the one-man commission was shown in the notification and therefore the impugned order is bad for non application of mind. However, it is the explanation of the first respondent that the address of the one-man commission was obtained from the Registry and therefore only a mistake had crept in. Even assuming that the said explanation is not accepted, the question still remains to be considered is as to whether merely because the address of the one-man commission was wrongly mentioned in the notification, it would invalidate the very Government Order on the ground of non application of mind. We find no force in the said submission, since the question of non application of mind can be applied only with reference to the irregularities etc., referred to in the Government Order and not otherwise, that too on the ground that the address has been wrongly mentioned in the impugned Government Order. Hence, the challenge to the impugned order on the ground of non-application of mind is liable to be rejected and accordingly the same is rejected. https://hcservices.ecourts.gov.in/hcservices/ 11. Point No.(iii): The power of the Government to set up a Commission of Inquiry and the consequential role of the commission of inquiry came up for consideration before the Apex Court. In the judgment in Shri Ram Krishna Dalmia etc., v. Shri Justice S.R.Tendolkar and others etc., AIR 1958 SC 538, it has been held that Parliament has made a law with respect to inquiry and has left such discretion to the appropriate Government to set up a Commission of Inquiry under certain circumstances referred to in Section 3 of the Commissions of Inquiry Act. It has been also observed that the commission should merely to investigate and record its findings and recommendations without having any power to enforce them. 12. Nevertheless, the question is as to whether such power to appoint a Commission of Inquiry could be made without there being any materials brought before it or no information was made available and in the event there are no materials or information, can it be said that such action of the Government in appointing a Commission of Inquiry is bad on the ground of arbitrariness? This question was again considered in the very same judgment in Shri Ram Krishna Dalmia etc., wherein the Apex Court in paragraphs 9 & 16 held as follows: “9........ An inquiry necessarily involves investigation into facts and necessitates the collection of material facts from the evidence adduced before or brought to the notice of the person or body conducting the inquiry and the recording of its findings on those facts in its report cannot but be regarded as ancillary to the inquiry itself, for the inquiry becomes useless unless the findings of the inquiring body are made available to the Government which set up the inquiry. It is, in our judgment, equally ancillary that the person or body conducting the inquiry should express its own view on the facts found by it for the consideration of the appropriate Government in order to enable it to take such measure as it may think fit to do. The whole purpose of setting up of a Commission of Inquiry consisting of experts will be frustrated and the elaborate process of inquiry will be deprived of its utility if the opinion and the advice of the expert body as to the measures the situation disclosed calls for cannot be placed before the Government for consideration notwithstanding that doing so cannot be to the prejudice of anybody because it has no force of its own. In our view the recommendations of a Commission of Inquiry are of great importance to the Government in order to enable it to make up its mind as to what legislative or administrative measures should be adopted to eradicate the evil found or to implement the beneficial objects it has in view..... 16......It is true that the notification https://hcservices.ecourts.gov.in/hcservices/ primarily or even solely affects the petitioners and their companies but it cannot be overlooked that Parliament having left the selective application of the Act to the discretion of the appropriate Government, the latter must of necessity take its decision on the materials available to it and the opinion it forms thereon. The appropriate Government cannot in such matters be expected to sit down and hold a judicial inquiry into the truth of the materials brought before it, and examine the informants on oath in the presence of the parties who are or may be likely to be affected by its decision. In matters of this kind the appropriate Government has of necessity to act upon the information available to it. It is the best judge of the reliability of its source of information and if it acts in good faith on the materials brought to its notice and honestly comes to the conclusion that the act and conduct of the petitioners and the affairs of their companies constitute a definite matter of public importance calling for an inquiry with a view to devise measures for preventing the recurrence of such evil, this Court, not being in possession of all the facts will, we apprehend, be slow to adjudge the executive action to be bad and illegal. We are not unmindful of the fact that a very wide discretionary power has been conferred on the Government and, indeed, the contemplation that such wide powers in the hands of the executive may in some cases be misused or abused and turned into an engine of oppression has caused considerable anxiety in our mind. Nevertheless, the bare possibility that the powers may be misused or abused cannot per se induce the court to deny the existence of the powers....” 12A. Subsequently, quoting the above judgment with approval, the Apex Court in P.V.Jagannath Rao and others v. State of Orissa and others, AIR 1969 SC 215 held that the dominant purpose of setting up the Commission of Inquiry was to promote measures for maintaining purity and integrity of the administration in the political life of the State. It was also held that the existence of political rivalry is not in itself sufficient to hold that the appointment of Commission of Inquiry is illegal. 12B. In Baliram Waman Hiray v. Justice B.Lentin, (1988) 4 SCC 419, the Apex Court held that the Commission of Inquiry is only a fact finding body and it is not a Court to adjudicate upon the matter. 12C. In P.Janardhana Reddy v. State of Andhra Pradesh, (2001) 6 SCC 50, the Apex Court reiterated the same view by holding that the appointment of a Commission is a matter of discretion of the Government, as the Commission does not adjudicate on any matter and its report has no value, except giving advice and providing guidance https://hcservices.ecourts.gov.in/hcservices/ to Government. 13. As the role of the Commission of Inquiry is only to investigate and record its findings and recommendations without having any power to enforce them, such an inquiry or report cannot be looked upon as a judicial inquiry. Nevertheless, invoking the provisions of Section 3 of the Commissions of Inquiry Act for appointing a Commission of Inquiry cannot be arbitrary or for that matter, unsupported by prima facie materials. In the event a statutory authority exercises the power conferred by a statute unsupported by materials, it would amount to a mala fide exercise of power in the eye of law or in other words, exercise of power by a statutory authority other than a purpose for which it was intended by the Legislature. Whether the exercise of power by a statutory authority is arbitrary and unsupported by materials or mala fide depends upon the facts of each case. 13A. In State of Madhya Pradesh v. Arjun Singh, AIR 1993 SC 1239, the Apex Court was considering a notification of the Government of Madhya Pradesh dated 29.3.90, wherein and whereby the scope of the commission of inquiry already notified was expanded. On the facts of the case, the Apex Court held that there was no relevant material before the State Government for expanding the scope of inquiry under the original reference and consequently interfered with that portion of the notification expanding the scope of earlier reference without materials. 14. On the facts of the present case, the impugned notification was issued on the ground that it was brought to the notice of the Government that there had been certain irregularities like excess expenditure, causing loss to the exchequer, non-obtaining of all statutory approvals and clearances, inordinate delay and deficiency in standards of construction. 15. The relevant files were produced before us and we perused the same only to find out as to whether any materials were available with the Government before issuing the impugned Government Order. We make it clear that these materials are considered only for the purpose of considering the challenge to the impugned Government Order on the ground that on the date of passing of the impugned order, there were no materials before the Government and we refer to those materials in this order only for prima facie consideration to answer the issue. 16. The Government issued G.O.Ms.No.209, Public Works (H1) Department dated 4.7.2007 directing the construction of a new complex for the Tamil Nadu Legislative Assembly in Omandurar Government Estate and accorded administrative sanction for an estimated cost of Rs.200 crores. By a subsequent Government Order in G.O.Ms.No.316, Public Works (H1) Department dated 25.10.2008, having regard to the letter of the Chief Engineer (Buildings), Public Works Department dated 20.10.2008, the Government accorded a revised administrative sanction for Rs.425.57 crores. Thereafter, under various Government Orders, the Government sanctioned funds under various heads towards the cost of interior decoration, furnitures, etc. The attention of the Government was also drawn that nearly Rs.624 crores was spent on the construction of New Secretariat complex. https://hcservices.ecourts.gov.in/hcservices/ 17. The report of the Comptroller and Auditor General of India for the year ended 31 March 2010 as to the civil work opined that the work of construction of the temporary dome was entrusted to a firm without calling for tenders at a cost of Rs.3.28 crore and