1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR D.B. Civil Writ Petition(PIL) No. 2567/2009 Kashi Purohit & Another Versus State of Rajasthan & Others. Date of Judgment:4th January, 2010. Hon'ble Mr.R.C.Gandhi,J Hon'ble Mr. Mahesh Bhagwati,J Mr. Abhinav Sharma, for the petitioners. Mr. G.S. Bapna, A.G., for the respondents. BY THE COURT(PER HON'BLE GANDHI, J.): By means of this public interest litigation petition, the petitioners seek issuance of Writ of Mandamus quashing order dated January 23, 2009, being ultra vires, non-est and bad in the eyes of law; further issuance of appropriate writ or direction declaring that the Council of Ministers, without having resolved and passed in the Legislative Assembly as contemplated under Section 3 of the Commissions of Inquiry Act, 1952(hereinafter referred to as ‘the Act of 1952’), cannot appoint a Commission to investigate into any definite matter of public significance, and inconsistent with the touch stone 2 of rules and the Law; further direction declaring that no Commission can be constituted by the newly elected Government to look into and investigate the decisions taken by the previous Council of Ministers, to wreak vengeance, being impermissible in law. 2. The petitioners have averred in the petition that they do not owe allegiance to any political party and are interested in the well governance of the State by any political party in power and are aggrieved because of the fact that the aim and object behind the move to appoint a Commission by the Respondent-State Government vide order dated 23.01.2009 is to wreak vengeance against the previous Government, therefore, suffers from political vendetta with which it is motivated rather than the idea of doing justice to the public. The petitioners do not at all support the mal-practices and acts of misconduct, illegalities and arbitrariness, rampant at large in the administrative circles. 3. It has been further averred by the petitioners that the impugned order is an eye wash as the Commission known as Justice N.N. Mathur Commission (hereinafter referred to as ‘the Commission’) has been constituted ignoring the provisions of the Act of 1952 to fulfill the political agenda of the Government reflected in 3 the Political Manifesto of the party in power and broadly campaigned during the Assembly Elections of 2008, maligning the previous Government being corrupt. The petitioners are not against the investigation of the mal practices of the previous Government and that the present Government has the power to appoint a Commission for inquiry into matter of great public significance. Notwithstanding that the Commission has been appointed in derogation to the procedure provided in the Act of 1952 framed by the Legislature. Such a Commission of Inquiry to investigate the affairs and decisions taken under the regime of the previous Government will set a bad practice in the State and the whole democratic setup will be demolished by such action. 4. It is stated that the Commission will inquire into illegalities committed in the land acquisition cases by the governing bodies of 32 Zila Parishads, 241 Tehsils, 237 Panchayat Samities, 9,188 Gram Panchayats, 183 Municipalities and 222 cities and towns of the State which give rise to a situation whether the Commission so appointed will make a fishing and rovering inquiry. It is also averred that the purpose of the Act of 1952 has become blurred and the Commission so appointed is a formality and will not take the purpose of punishing the 4 guilty to logical end. The report, if any, submitted by the Commission will not meet the requisite purpose and that no inquiry has been ordered for any year preceding to the year 2004, presumably because what has been done by the Government of the political party in power before the earlier Government was fair and honest and there was no element of corruption, fraud, misconduct, misappropriation of funds, scam, nepotism, etc. 5. The petitioners have also relied upon the judgment delivered by the Supreme Court in case title State of Madhya Pradesh Vs. Thakur Bharat Singh, reported in AIR 1967 SC 1170 wherein the Apex Court held that every act done by the Government or by its officers, must, if it is to operate to the prejudice of any person, should be supported by some legislative authority. In the present case, the appointment of the Commission is not in accordance with the spirit of the judgment(supra) and impugned order deserves to be set aside. 6. It is also averred in the petition that so far as the money to be spent for the function of the Commission is concerned, it shall be a wastage of public ex-chequer and the Commission will meet the same fate as other Commissions such as Justice B. N. Kripal Commission to probe into the bombing of the Air India Flight No. 182 on 5 23.06.1985 where 329 passengers including crew died; The Phukan Commission to probe into the fictitious defence deals; Justice Amir Das Commission to probe into the alleged connections of political leaders with a banned outfit; Justice Ali Ahmed Commission to look into excess withdrawal in 1996; Justice R.C.P. Sinha and Justice Samsul Commission to investigate the Bhagalpur Communal riots in 1989; Justice Sadanand Mukherjee Commission to probe into the Kahalgaon Police firing. It has also been pleaded by the petitioners in the petition that after years of investigations and submission of voluminous reports, it again required some committees to suggest measures to implement the recommendations. The present Commission being a fact finding Commission and it is not mandatory for the Government to implement it and shall result into the loss of the public ex-chequer and wastage of time as well. 7. It is further averred that the Commission has been asked to inquire into the malpractices, corruption from the year 2004 to 2008 which period belongs to the Government run by the political party, in opposition at present, is indicative of a clear message of political vendetta. It is stated whether it is permissible for a political party to wreak political vendetta at the cost of 6 public ex-chequer unless there are reasons to believe so and that the period should not have been restricted in fair play and justice. It is also averred that the appointment of the Commission is a device to fulfill the manifesto of the political party in power whereas the general belief of the public is that even after the submission of the report by the Commission no action will be taken, being the report so submitted not mandatory in character and the Commission not appointed under any statutory provisions of law. 8. On the aforesaid averments and grounds, the petitioners seek to set aside the impugned order of setting up of the Commission. 9. Respondents have filed reply and the supplementary reply stating therein that the petitioners have not approached the Court with clean hands though the petition has been labelled as Public Interest Litigation Petition(PIL). The impugned notification setting up the Mathur Commission has been issued as per the demand of the people in general and commitment of the Government to unearth various acts of misconduct, misappropriation, fraud, negligence, favouritism, nepotism, illegalities, irregularities, improprieties and abuse of power at different levels of governance, causing huge lose to the 7 State exchequer and to bring the guilty to the book. It is stated that the appointment of the Commission is necessary for the purpose of maintaining high standard of public administration being it a recognized and important facet of the administration by the Government. Commission of Inquiry is a matter of discretion of the appropriate Government and it can be set up under executive order of the Government or under Section 3(1) of the Act of 1952 for preliminary verification of the allegations which may justify a statutory inquiry or investigation or departmental action. It is also stated that the Government may in its discretion opt to institute an inquiry under Section 3(1) of the Act of 1952. It is wrong to contend that Commission of Inquiry under impugned notification is bad in law, in absence of the resolution of the Assembly in terms of Section 3 of the Act of 1952. 10. It is further stated that there was outcry from various sections of the society for probe into the controversial land deals and other corruption charges during the period of the previous Government i.e. year 2004 to year 2008. Among those demanding inquiries include the persons who held high constitutional offices in their lives. The Government has set up an independent multi members Commission of persons of unquestionable 8 integrity by an executive order which is valid in law. It is stated that it is a fact finding body meant only to collect information to instruct the mind of the Government. For the present, provision of Section 3 of the Act of 1952 has not been invoked in anxiety to ensure that image of any individual, political person or otherwise is not adversely affected. 11. The respondents have further stated in their reply that the Government headed by Shri Bhairon Singh Shekhawat constituted a panel of Justice B.P. Beri, Shri Mangal Bihari(Retd) IAS, Shri A.S. Kapoor, former Chairman, Indira Gandhi Canal vide Notification dated 24.08.1990 against the voted out Government. In Orissa, Commission headed by Justice Madholker, was constituted by executive order against the voted out Chief Minister. The previous Government of State of Rajasthan under Executive order dated 02.06.2007 constituted a panel headed by Justice Chopra to probe the Gurjar Agitation. In support of the impugned order, the respondents have relied upon the judgment delivered by the Supreme Court reported in 1969 S.C. 258 pertaining to the Ex-Chief Minister of Bihar. It is stated that the dominant purpose of setting up of the Commission is to promote measures for maintaining purity and integrity of the administrators 9 and not the character assassination of any individual or group. For a Government it is necessary to restore the confidence of the people in the governance, therefore, investigation and probe of allegations is necessary to achieve that purpose. By pleading these averments, the respondents seek dismissal of the writ petition. 12. Heard learned counsel for the parties and perused the record. 13. Learned counsel for the petitioners at the very outset has urged that the Commission has been constituted to wreak vengeance, as means of political vendetta, against the earlier Government led by the Opposition Party and with a view to malign it. The intention of the Government to malign the earlier Government has bearing in the manifesto of the party in power presently that the misdeeds of the earlier Government shall be probed and investigated, if the party comes to power. It is further submitted that having come to power, the present Government has appointed the Commission to discredit the fair governance of the earlier Government. 14. On perusal of the impugned Notification dated 23.01.2009, we find that the Commission has been constituted to probe and investigate the specific cases to 10 be referred by the Government to the Commission. The Government has referred a number of cases for its investigation by the Commission. It is the prerogative of the Government that if the Government is of the view that the allotment of the lands or conversion of land use under Section 90-B of the Jaipur Development Act, 1982 has not been done in accordance with law and the same was done for extraneous gains, the Government is within its right to have the probe and investigation of such mal-practices and illegalities. The probe has been directed not against the earlier Government or the Leader of the erstwhile House but against the officers and other authorities associated in the process of the cases and passed orders in such cases. Therefore, we find that there is no substance in the plea of the learned counsel for the petitioners that the Commission has been constituted to wreak vengeance or settling the scores as political vendetta. The Government wants to have a report from the Commission as to whether the actions of the officers of the State at the relevant time were in accordance with law or orders are passed because of the undue pressure and indifferences of the higher ups. This can only come out after the investigation. We, therefore, reject such argument of the learned counsel for the petitioners. 11 15. The next submission of the learned counsel for the petitioners is that the Commission is only a fact finding body having no statutory recognition and its report will not be having mandatory and statutory character and that the Government may or may not present the report or the action taken report before the Assembly or may shelf it. Therefore, setting up of the Commission is only an eye wash. His submission is that if the Government really wanted to take action against the erring officers who passed the orders in the cases which are being proved as referred by the Government or likely to be referred to the Commission, it should have constituted a statutory Commission in terms of Section 3(1) of the Act of 1952. For appreciation of the plea of the learned counsel for the petitioners, Section 3 of the Act of 1952 for convenience is extracted below and reads thus: “3. Appointment of Commission.-(1) The appropriate Government may, if it is of opinion that it is necessary so to do, and shall, if a resolution in this behalf is passed by[each House of Parliament or, as the case may be, the Legislature of the State], 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 and performing such functions and within suh time as may be specified in the notification, and the Commission so appointed shall make the inquiry and perform the functions accordingly: 12 Provided that where any such Commission has been appointed to inquire into any matter- (a) by the Central Government, no State Government shall, except with the approval of the Central Government, appoint another Commission to inquire into the same matter for so long as the Commission appointed by the Central Government is functioning; (b) by a State Government, the Central Government shall not appoint another Commission to inquire into the same matter for so long as the Commission appointed by the State Government is functioning, unless the Central Government is of opinion that the scope of the inquiry should be extended to two or more States. (2) The Commission may consist of one or more members appointed by the appropriate Government, and where the Commission consists of more than one member, one of them may be appointed as the Chairman thereof. (3) 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(whether consisting of one or more than one member). (4) The appropriate Government shall cause to be laid before[each House of Parliament or as the case may be, the Legislature of the State], the report, if any, of the Commission on the inquiry made by the Commission under sub- section (1) together with a memorandum of the action taken thereon, within a period of six months of the submission of the report by the Commission to the appropriate Government.” 16. Relying upon the aforesaid provisions of law, learned counsel has urged that had the Commission been 13 appointed under Section 3 of the Act of 1952, it would have been mandatory and obligatory for the Government to cause the report be laid before the Assembly together with the memorandum of action taken thereon within a stipulated period. His submission is that what weighed with the Government to appoint such a Commission which has no teeth for its follow up action, is only to malign the previous Government. Alternative submission of the learned counsel is that instead of appointing the Commission, the cases would have been referred by the Government for investigation to some other agency such as Anti Corruption Department, Police Department or the Lokayukta. All these agencies have the full power to investigate, take action and prosecute the defaulting officers in the court of law whereas it is ought to be known whether the Government will take any action on the report and that the Government cannot be compelled to take action as the Commission has not any mandatory character which strengthens his argument that the fact finding Commission is constituted to defame the previous Government in the eyes of the general public. 17. Learned counsel for the respondents has vehemently opposed the plea of the learned counsel for the petitioners submitting that the Government is within 14 its prerogative in terms of its executive power to appoint a Commission either under provisions of the Act of 1952 or the Commission as has been constituted by the Government and no fault cannot be found by the Court in formation of the Commission. We feel that it is the prerogative and within the power of the Government either to appoint a Commission under the Act of 1952 or like the present one. 18. Another limb of the argument is that in the past, experience shows as pleaded by the other side that though such commissions were appointed but no action was taken on the reports submitted by such commissions and the report submitted by the Commission will face the same fate and the erring and corrupt officers/officials will not be taken to task, is misplaced. 19. On appreciation of arguments of learned counsel for the parties, it is gathered that in any democracy of the world, the corruption has not been rooted out even by excellent governance by the popular Government. The reason perhaps appears to be that in a democracy, there is common interest of the people in the State and personal interest of the individual dealing with the rights of the people which is the trust of the State reposed in the individual authority/officer of the State. 15 When the personal interest gets upper edge over the general interest of the State, though the prescribed procedure may not have been violated, yet for extraneous consideration, dealing with the matter or, over passes the State interest and places his personal interest over the general interest of the State, the element of corruption steps in. There is systematic corruption and negotiated corruption. In case of systematic corruption, it is very hard to crack a nut but in certain cases it is visible and can be investigated and probed. It is very necessary in the interest of the people to watch the interest of the State and keep it ahead to the personal interest of the individual by holding investigation and to prosecute such persons and put them to justice. It can be probed through the Department of Anti Corruption and even in some cases by the Police Department also. Therefore, there cannot be any second thought or opinion that the malpractices, if any, have to be investigated. 20. There appears to be imaginary and presumptive substance in the argument of the learned counsel for the petitioners that the report submitted by the Commission may not be acted upon but at present it can be said to be a guess work. The cases referred by the Government to the Commission have to be probed and 16 investigated. His further misplaced apprehension is that the Commission being only a fact finding body, its report will not see the light of the day as the follow up action is only the discretion of the Government. 21. Considering the aforesaid submissions it is to be seen whether the work done by the present Commission can provide justice to the people or another agency had to be called for proper legal investigation. This Commission is a fact finding commission as admitted by the respondents. The Government has submitted in the reply that the Commission under Section 3(1) of the Act of 1952 has not been constituted with anxiety that no individual or a group should suffer without any evidence against him/them which indicates that after the submission of the report it will be considered and if there is any evidence found against the guilty, the Government will appoint another Commission, ought to be known, perhaps under Section 3(1) of the Act of 1952. If this is the intention of the Government, it will certainly cause loss to the State ex-chequer and wastage of time. The Government has set up a Commission to probe the misdeeds and irregularities committed while passing the orders for allotment of land and conversion of land use during the period from the year 2004 to the year 2008. 17 The Government, if was not having any evidence prima facie to form an opinion for investigation of the charges, the Government was not within its right to appoint the Commission. There should have been prima facie evidence of allegations against the officers/officials which need to be probed. If the Government was not having any evidence and the State wants to collect information and thereupon to appoint a statutory commission, it is not advisable as it will be a burden on the State ex-chequer and unfair exercise of power. Since the Government has appointed such a Commission, therefore, needle of suspicion will be in the mind of the public that the Commission is constituted because of political vendetta which need to be obliterated and removed. People must feel that the action of the Government is not either mala fide or perpetuated by political vendetta but is in accordance with law and that the Government wants to do justice to the people and bring the culprits to book who have passed the orders for extraneous considerations and not in the public interest. 22. Considering the aforesaid submissions, we feel that instead of having a fact finding body the Government should have appointed a Commission possessed of mandatory character so that the report submitted by the 18 Commission could be tabled before the House and follow up action taken. In the past, we find that the Government instead of taking action against the erring officer devised certain other procedures to find out truth and the culprits got free. The Commission has not been appointed in terms of Section 3(1) of the Act of 1952 for the reasons best known to the Government. Had it been so, the guilty could have been prosecuted and such a decision could have been taken by the Assembly at the floor of the House. 23. Alternatively we feel that if the inquiry or investigation is permitted to be conducted by the Anti Corruption Department, Police Department, Departmental Inquiry or the like other agency, justice will not be done as the people will still have a room to raise a finger that such agency is bound to toe the line of the Government for framing the officers/individuals for prosecution. Therefore these cases should be probed by the one and the same agency which can be said to be free from the influence and control of the Government. 24. It was also urged that if such a system of inquiries is permitted to continue, in that event every political party coming in power will resort to such approach in future and God forbid, if it is so, there shall be 19 political uncertainty in the State and the administrative health and efficiency of the Government shall be in jeopardy which will directly affect the health of the State. The State can head towards progress only if there is good governance and political stability in the State. 25. Under these circumstances, we have perused the provisions of the Rajasthan Lokayukta and Up- Lokayuktas Act, 1973(hereinafter referred to as the ‘the Act of 1973’), and find that the Lokayukta is an independent and statutory body, created by the Legislature, having wide powers to catch the Ministers and other executives heading the public corporations, local bodies