1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.393/2000 Shri Antonio Sequeira Coutinho Pereira, residing at Maem, Bicholim, Goa. .......... Petitioner. Versus. 1. The State of Goa, through the Chief Secretary to the Government of Goa, Secretariat, Panaji, Goa 2. Shri Prakash Fadte, Minister for Forests & Town & Country Planning , Government of Goa, Secretariat, Panaji, Goa. 3. Shri Manohar Parrikar, Chief Minister of Goa, Secretariat, Panaji, Goa. 4. Shri B. S. Subbanna, Ex-Law Secretary, La Campala Colony, Miramar-Panaji, Goa. 5. Shri G. G. Kambli, C/o. Goa Public Service Commission, EDC Building, Panaji, Goa. 6. Shri P. V. Kadnekar, House No. 760/95, Opp. Pokle Bungalow, Behind Bale Hospital, Alto Porvorim, Bardez, Goa. 2 7.Custodian of Evacuee Property, Government of Goa, Captain of Ports Building, Panaji, Goa. 8. Justice Dr. Eurico das Dores Santana da Silva Silva Commission of Inquiry, Borda, Margao, Goa (struck out as per order dated 23.4.2001). ....... Respondents. Mr. S. K. Kakodkar, Senior Advocate with Mr. V. R. Tamba, Advocate for the petitioner. Mr. S. S. Kantak, Advocate General with Ms. R. Chodankar, Addl. Govt. Advocate for respondent No.1. Mr. J. E. Coelho Pereira, Senior Advocate with Mr. V. Korgaonkar, Advocate for respondents No.5 and 6. CORAM : A.P. DESHPANDE & N.A. BRITTO, JJ. Date of reserving the Judgment : 13th November, 2008. Date of pronouncing the Judgment : 2nd December, 2008. J U D G M E N T : (A.P. DESHPANDE, J.) The petitioner has challenged the Notification dated 10th November, 2000 issued by the Government of Goa in exercise of 3 powers conferred by sub-section (1) of Section 7 of the Commissions of Inquiry Act, 1952 (“the Act” for short), declaring that the Commission of Inquiry shall cease to exist with effect from 10.11.2000. 2. The Government of Goa, by the Notification dated 9th May, 2000, appointed a retired Judge of Bombay High Court at Goa, to be the Commission of Inquiry for the purpose of making inquiry in relation to the evacuee property of late Count of Maem under the terms of reference mentioned therein. The terms of reference are reproduced hereinbelow. “ 1. Whether the above Officers while functioning as Custodian of Evacuee Property have : - a) failed in their duty under the Act by allowing unauthorised persons to encroach upon the Evacuee property at Maem ? b) committed any fraud by not taking any action to remove the encroachers from the Evacuee Property ? c) mismanaged the affairs of the Evacuee Property thereby causing heavy loss of income ? d) committed the aforesaid illegalities for personal gain or received any illegal gratification from any source? 4 e) committed breach of trust under the Admini- stration of of Evacuee Property Act by not following the procedure as required under the said Act while dealing with or managing the affairs of the said property ? f) committed gross illegality and misuse of powers by not releasing of the Chapel property at Maem, which was declared as Non-evacuee Property by the Custodian by order date 14-11-1967 ? g) action of non-release of Chapel property was for any illegal gratification ? 2. a) whether any other officers are responsible for committing irregularities in the Evacuee Property at Maem ? b) what action be proposed by the Commi- ssion against those found guilty, responsible, accountable in this matter ? c) whether the matter relating to Southern lote of the property should be kept pending till decision of the Civil Court as regards the title dispute and other rights of the parties under the Will and the property as such be continued as Evacuee Property till then ? d) to identify the beneficiaries of the irregularities committed by any of the Custodian of 5 Evacuee Property ? e) recommend action against such bene- ficiaries of the illegalities, irregularities. f) whether any of the Evacuee Properties have been unauthorisedly and/or illegally granted, leased or otherwise given by any of the Custodian of Evacuee Property ? g) to identify the losses sustained, suffered by the State as Trustees of Evacuee Property on account of any illegal acts of the Custodians ?” 3. As per the Notification dated 9th May, 2000, the Commission of Inquiry was appointed for the purpose of making inquiry under the terms of reference and was directed to submit the report before the expiry of 60 days from the date of publication of the Notification. By another Notification dated 19.5.2000, the Government extended the time limit for submission of the report to 150 days, instead of 60 days as stipulated earlier. By yet another Notification dated 6th October, 2000, the Government extended the time limit for submission of the report by the Commission of Inquiry till 30th November, 2000. However, before the extended date, the then Congress Government came to be unseated and a BJP Government headed by respondent No.3 came in power. Respondent No.3 became 6 the Chief Minister with effect from 24.10.2000. The newly installed Government issued a Notification on 10th November, 2000 under Section 7 of the Act and declared that the Commission shall cease to exist, as the Government was of the opinion that the continued existence of the Commission was unnecessary. It is this Notification which declared that the Commission shall cease to exist, is the subject- matter of challenge in this petition. 4. The present petitioner claims to be the successor of the estate of Count of Maem which was declared as evacuee property under the Administration of Evacuee Property Act and as such vested in the Custodian appointed under the Act. It may not be out of context to state that the petitioner's claim as a successor to the estate is disputed and the dispute is pending in the Civil Court. Be that as it may, it is crystal clear that the petitioner is a person interested in the evacuee property. 5. The learned Senior Counsel Shri Kakodkar for the petitioner has made the following submissions: That the issuance of Notification under Section 7 of the Act 7 based on the formation of the opinion by the Government is malafide and it is an attempt to shield the Custodians from the likely adverse report from the Commission of Inquiry. To scuttle the apprehended findings of the Commission, the Commission has been wound up. That there was no material before the Government to form an opinion that the continued existence of the Commission was unnecessary. The Commission was wound up before the three erring Custodians were to appear before the Commission, whose depositions would have exposed caucus of politicians-industrialists-bureaucrats. That the winding up of the Commission is detrimental to the public interest and good governance. It is contended that with a view to protect the encroachers and illegal constructions put up in the evacuee property, the impugned notification came to the issued. It is averred in the Petition that the encroachers constitute the vote bank of BJP. Thus, it is claimed that the impugned notification has been issued malafidely. It is next contended that issuance of impugned notification is abuse of discretionary power. The exercise of discretionary power by the Government is attacked as irrational and based on irrelevant considerations. That the discretion exercised by the Government in issuing the notification under Section 7 is based on no material and 8 whatever material was available for formation of the opinion, has no nexus with the opinion formed. 6. The learned Advocate General appearing for the State has argued in the first place that the scope for judicial review in the present matter is very limited and the same has to be confined to - (a) illegality; (b) irrationality; and (c) procedural impropriety. There is no illegality pointed out. Irrational decision would be one which is so illogical that no sane person can reach. It is then stated that no procedural impropriety has been even averred. It is contended that there are no particulars of malafides averred in the Petition, except vague statements that the impugned decision was taken to protect the encroachers over the evacuee property who constitute the vote bank of BJP. It is then contended that the malafides are not proved and the allegations in that regard are not substantiated. The learned Advocate General appearing for the State Government has invited our attention to the relevant averments made in the affidavit-in- reply. In para 8 of the affidavit-in-reply, it is stated that the 9 Government after examining the matter found that it pertains to an individual property and does not relate to a definite matter of public importance, and being so, the cabinet took a decision to wind up the Commission. It is then stated that the Government concluded that the continuance of the Commission was wholly unnecessary. It is further averred that in the opinion of the Government, the material collected by the Commission could be more effectively used by the Vigilance Department for taking necessary action against the delinquent officials. It is stated that the inquiry by Vigilance Department was directed against the erring officers and disciplinary proceedings were also initiated against Shri B. S. Subbanna, Shri G. G. Kambli and Shri P. V. Kadnekar in respect of the alleged irregularities committed by them while they were Custodians of the evacuee property. The Government was of the view that the material collected by the Commission can be better used for framing charge sheets and conducting departmental inquiry against the erring officials. In para 11 of the affidavit-in-reply, it is stated that the Government cannot afford to set up Commission of Inquiry for encroachment of properties of one individual and instead considered it proper to take action against the concerned officials by initiating disciplinary proceedings and other inquiries. After winding 10 up of the Commission, the Vigilance Department has proceeded against the erring officials. It is also submitted that the petitioner had asked for sanction under Section 197 of Cr.P.C. to prosecute the three Officers for inquiring into whose acts and omissions, the Commission of Inquiry was constituted and the Government did grant the sanction. It is then stated that the Vigilance inquiry was obstructed on account of enquiry by the Commission as the present Custodian of the Evacuee Property could not make files and documents available to the Director of Vigilance, on the ground that the files have been sent to the Commission of Inquiry. As it would serve no useful purpose in continuing with the inquiry, the State Government took a decision to issue the notification under Section 7 and to go ahead with the Vigilance Inquiry and Disciplinary Proceedings. The learned Advocate General has submitted that the allegations of malafides have not been established at all. It is alternatively contended that truly speaking issuance of the Notification under Section 7 on 10.11.2000 was not necessary as the term of the Commission had already come to an end. According to the learned Advocate General, the Notification dated 6.10.2000 extending the time for submission of report by the Commission till 11 30.11.2000 is not valid and legal and thus the term of the Commission had come to an end before issuance of Notification dated 10.11.2000. The submission is that the decision to grant extension reflected in the Notification dated 6.10.2000 was not a decision taken by the Council of Ministers, but it was a decision taken only by the Chief Minister who was not competent to grant the extension. It is contended that under the Rules of Business of the Government of Goa, all cases referred to in the Schedule are required to be brought before the Council of Ministers. Inviting our attention to Entry 13 of the Schedule, it is contended that the Council of Ministers alone could have taken the decision. Entry 13 reads thus: “Appointment of Committees of Inquiry on the initiative of the Government or in pursuance of resolution passed by the Legislature of the State and reports of such Committees.” Reliance is also placed on Entry 30 which reads thus : “Proposals to vary or reverse a decision previously taken by the Council.” It is submitted that conjoint reading of the said two Entries make it imperative that the decision in the matter of appointment of committees of inquiry or any variation from the decision previously taken by the Council, could only be taken by Council of Ministers and not by the Chief Minister. It is submitted that as the term by the Commission had already come to an end before the 12 issuance of Notification dated 10.11.2000, the notification needs to be ignored. 7. Before we deal with the above submissions, it would be appropriate to examine the scheme of Sections 3 and 7 of the Act. Section 3 lays down that the appropriate Government may, if it is of the opinion that it is necessary so to do, by notification in the Official Gazette, appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance, within such time as may be specified in the Notification and the Commission so appointed shall make inquiry and perform the functions accordingly. It is thus clear that a discretionary power is conferred on the highest executive of the State, namely the Government. The Notification appointing the Commission is to specify the time within which the Commission shall make the inquiry and perform the functions. The discretionary power vested in the Government is not coupled with any duty. It does not create any corresponding right in anyone to call upon the Government to appoint a Commission or to continue its existence till submission of the report. The very purpose and object behind appointing a Commission under the Commissions of Inquiry Act, 1952 13 as observed by the Nagpur High Court in M.V. Rajwade vs. Dr. Hassan, and others, AIR 1954 Nag. 71 is - “for the information of its own mind” in order that is should not act, in exercise of its executive power, “otherwise than in accordance with the dictates of justice and equity” in ordering a departmental inquiry against its officers. It was , therefore, a fact finding body meant only to instruct the mind of the Government without producing any document of a judicial nature.” This view expressed by the Nagpur High Court is quoted with approval by the Supreme Court in the case of Brajnandan Sinha vs. Jyoti Narain, reported in AIR 1956 SC 66, so also in the case of Dr. Baliram Waman Hiray vs. Justice B. Lentin and ors., reported in (1988) 4 SCC 419. Section 7 provides that the appropriate Government may, by notification in the Official Gazette, declare that a Commission shall cease to exist if it is of the opinion that the continued existence of the Commission is unnecessary. It is, thus, clear that for appointing a Commission of Inquiry, the Government is required to form an opinion, so also while declaring that the Commission shall cease to exist the 14 Government is to form an opinion. The power vested with the Government under Sections 3 and 7 is a discretionary power which has to be exercised on formation of an opinion by the Government. Thus, the scope of a judicial review in the matter of appointment of a Commission of Inquiry or i the matter of declaring that the Commission shall cease to exist is very limited. The moment it is shown that relevant material was taken into consideration while reaching a decision under Section 7, the challenge to the Notification on that ground must fail. Courts cannot have judicial review of the sufficiency of the material relied upon. 8. In the facts of the present case, the Commission of Inquiry was appointed by the then Congress Government and after BJP was voted to power, it took a decision to wind up the Commission by issuing a notification. It is not new that with change in the Government perception changes which results in change in policies. The observations of the Supreme Court, in this context, made in the case of Misbah Alam Shaikh vs. State of Maharashtra and another., reported in AIR 1997 SC 1409 would be very relevant. While considering the propriety of abolition of Minority Commission in the State of 15 Maharashtra, it observed - “It may be that perception of political parties differ from one another. But when the Government found, after the political party was voted to power and the decision taken by the Cabinet to abolish the Minority Commission, it cannot be characterised as a mala fide decision. May be the perception may not be correct in view of another political party. The decision may or may not be right, but it cannot be characterised as a mala fide decision”. These observations apply on all fours to the facts in hand. 9. We have already extracted the reasons set out in the affidavit-in-reply and relied upon by the Government for forming the opinion which came to be translated into a declaration under Section 7. The Government thought it fit to use the material collected by the Commission for the purpose of making of an inquiry by the Vigilance. Disciplinary proceedings came to be initiated against the three erring officials. The Government being of the view that the Vigilance Inquiry was obstructed as the relevant files and documents of the evacuee property were produced before the Commission of Inquiry, it has 16 chosen to wind up the Commission and proceeded with the Vigilance Inquiry and the disciplinary proceedings. A perusal of the terms of inquiry would reveal that predominantly the inquiry by the Commission was to be made against three officers for the acts or omission while acting as the Custodians of the evacuee property. The formation of the opinion by the Government to declare that the Commission shall cease to continue cannot be termed as a malafide decision. The Government had taken a possible view of the matter and the view of the Government expressed in the Notification dated 10.11.2000 being a possible view, it does not require any interference. 10. In our considered opinion, the petitioner has failed to make out any case of malafides. No material whatsoever has been placed on record with a view to substantiate the allegations of malafides which mainly relate to affording protection to the encroachers who are said to constitute vote bank of BJP. 11. The learned Advocate General has contended that the decision contained in the Notification dated 6.10.2000, granting extension to the term of the Commission, was not a decision of the 17 Council of Ministers, but, was only a decision of the Chief Minister who was not competent to take the same in view of the Rules of Business. By so contending the learned Advocate General submits that the impugned Notification needs to be ignored as the same was not necessary to be issued as the term of the Commission had already come to an end. Per contra, the learned Senior Counsel appearing for the petitioner, submits that the Government cannot challenge its own decision of granting extension to the continuance of the term of the Commission vide Notification dated 6.10.2000, more so, in a petition filed by a third party. The learned Senior Counsel has placed reliance on a judgment of the Supreme Court in the case of State of Assam and anr. vs. Raghava Rajgopalachari, reported in 1972 SLR 44. Reliance is placed on the following observations of the Supreme Court in para 13 of the Judgment : “... But we are unable to appreciate how he is entitled to raise the point. The writ was brought to challenge this order. No such petition, even if it be competent, was filed by the State itself. The respondent to a Writ Petition cannot be allowed to attack its own order as a respondent.” 18 Yet another Judgment of the Supreme Court is relied upon by the learned Senior Counsel in case of Assistant Commissioner of Commercial Taxes (Asst.) Dharwar and ors. vs. Dharmendra Trading Company and others., reported in (1988) 3 SCC 570 and particularly the observations made in para 5 of the Judgment. As we have already concluded that the petitioner has failed to make out a case that the impugned notification was issued malafidely, we do not deem it appropriate to decide the above extracted contention raised by the learned Advocate General, as the adjudication thereof is not necessary for decision of the present petition. 12. There are certain subsequent events that had taken place after winding up of the Commission and the same are brought on record by filing affidavits by respondents No.5 and 6, who are two out of the three officers to inquire into whose acts and/or omissions the Commission of Inquiry was set up. In the affidavit filed by respondent No.6, it is stated that Vigilant Department of the State Government had served a Memorandum of Articles of Charges under Rule 14 of the C.C.S. (C.C.A.) Rules, 1965 and respondent No.6 had filed his reply 19 thereto. Thereafter, an Inquiry Officer was appointed to inquire into the imputations/charges against the said respondent. After parties led evidence touching the charges, Inquiry Officer submitted the report. The Government, concurring with the findings and report of the Inquiry Officer, has exonerated respondent No.6 of the charges levelled against him, The order passed by the Government dated 18.4.2005 has been placed on record. Same is the position in regard to respondent No.5 Shri Kambli. He has also filed an affidavit and placed on record an order dated 14.12.2004, duly authenticated in the name of the Governor, which goes to show that the Government accepted the findings of the Inquiry Officer and closed the disciplinary proceedings against respondent No.5. It can, thus, be seen that after winding up of the Commission of Inquiry, the Officers concerned were proceeded against by initiating disciplinary proceedings at the instance of the Vigilance Department of the State Government and the disciplinary proceedings have culminated into passing of the orders exonerating 2 out of the 3 Officers. The third Officer has not filed any affidavit. 13. Having regard to the subsequent events and more so, having regard to the fact that a period of about 8 years has elapsed from the 20 date of winding up of the inquiry commission, we are of the clear view that no useful purpose will be served by issuing directions to reconstitute the Commission, whose tenure has long expired. It cannot also be lost sight of the fact that the instant petition is by a person interested in the evacuee property. The petitioner has approached this Court in a discretionary jurisdiction under Article 226 of the Constitution of India. We have already concluded that the petitioner has failed to make out any case for quashing of the impugned Notification. Even assuming that the petitioner has made out a case, we decline to exercise the discretion in favour of the petitioner. As no case is made out, the petition is dismissed with no order as to costs. A.P. DESHPANDE, J. N.A. BRITTO, J. ssm.