SCA/16500/2005 1/75 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 16500 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE DN PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= NILKANTH TULSIDAS BHATIA - Petitioner(s) Versus UNION OF INDIA & 7 - Respondent(s) ========================================================= Appearance : MR NAGESHWAR RAO, SENIOR ADVOCATE WITH MR YF MEHTA, for the Petitioner. Mr. N.D.Nanavati, Senior Advocate with Ms. Megha Jani for respondent nos. 1 to 3. Mr. J.M.Malkan for respondent nos. 4 and 5. MR PRANIT K NANAVATI for Respondent(s) : 7, MR K.B.TRIVEDI, Advocate General with Mr. S.S.Shah, Government Pleader for Respondent no.8. ========================================================= CORAM : HONOURABLE MR.JUSTICE DN PATEL Date : 13/10/2006 SCA/16500/2005 2/75 JUDGMENT ORAL JUDGMENT The present petition challenges the action of the Central Government of an appointment of a High Level Committee under Article 73 of the Constitution of India vide notification dated 4th September, 2004 as well as the notification dated 2nd December, 2005 whereby High Level committee is clothed by additional powers under section 11 of the Commissions of Inquiry Act, 1952 (hereinafter referred to as “the Act,1952”). 2. An important issue which has arisen for adjudication of this Court is : Whether executive powers vested in the Central Government under Article 73 of the Constitution of India can be invoked by appointing a Committee for the purposes referred to in the notification dated 4th September, 2004 when already there is existence of Railways Act, 1989, occupying the field, especially keeping in mind the provision of sections 113 to 118 and also keeping in mind a statutory bar created by (i) Section 119 of the Railways Act,1989; and (ii) Section 3 of the Commissions of Inquiry Act,1952 and when the State Government has appointed a Commission headed by a retired judge of Hon'ble Supreme Court and a retire judge of this Court, under section 3 of the Commissions of Inquiry Act, 1952? Thus, SCA/16500/2005 3/75 JUDGMENT whether executive powers can be exercised, where a particular field is occupied by law and despite the statutory bar. 3. I have heard Learned Senior Advocate, Mr. Nageshwar Rao, with learned advocate Mr. Y.F.Mehta for the petitioner, who have mainly submitted that the notification issued by the Central Government dated 4th September, 2004 under Article 73 of the Constitution of India is ultra vires the provisions of the Railways Act, 1989. (Hereinafter referred to as “the Act, 1989”). It is also submitted by the learned Senior Advocate that the executive powers under Article 73 of the Constitution of India cannot be utilised by the Union of India when already the State has appointed a Commission under section 3 of the Act, 1952. Executive powers under Article 73, cannot be used, when, for that very subject a law is already enacted and is in force. The notification has been issued with a malafide intention. The incident had taken place on 27th February, 2002. The State appointed the Commission under section 3 of the Act of 1952 on 6th March, 2002 and after two years and seven months, the powers under Article 73 of the Constitution of India have been exercised by the Central Government. It is also submitted by the SCA/16500/2005 4/75 JUDGMENT learned Senior Advocate that apart from delay, the interim report of the High Level Committee was submitted at such a crucial time, that is, on 17th January, 2005 which was just two days prior to the Assembly elections of the State of Bihar. Wide publicity was also given to this report. All these affect a very vital right, vested in the petitioner of fair trial, under Article 21, of the Constitution of India. It is also submitted by the learned Senior Advocate for the petitioner that the petitioner is not a total stranger to the whole incident. The petitioner is the victim of the incident which took place on 27th February, 2002. The statement of the petitioner as well as that of his wife have been recorded. The petitioner has also suffered physical injuries. The petitioner was hospitalised for considerably a longer time. Interim report is totally giving diagonally opposite theory of the assault. The police has investigated the criminal offence. Upon completion of the investigation, charge-sheets have been filed, propounding a theory of assault by setting up of fire. The High Level Committee appointed vide notification dated 4th September, 2004, in exercise of powers under Article 73 of the Constitution of India, in face of section 119 of the SCA/16500/2005 5/75 JUDGMENT Act of 1989, propounds the theory of accident. The learned Senior Advocate for the petitioner further submitted that all these factors compelled the petitioner to prefer the present petition and seek a writ of mandamus for a declaration that the notification dated 4th September, 2004 issued in exercise of powers under Article 73 of the Constitution of India and the notification dated 2nd December,2005 empowering High Level Committee under section 11 of the Act of 1952 affect the present petitioner and hence the cause has been brought to the door of the Court. Several breaches of the act of 1989 have been pointed out. Usage of power under Article 73 of the Constitution of India has been vehemently opposed by the learned counsel for the petitioner. It is also submitted by the learned Senior Advocate for the petitioner that there is a colourable exercise of powers by Union of India under Article 73 of the Constitution of India. He has also explained in detail the term “colourable exercise of powers” with the help of several judgments which are referred to hereinafter. It is also stated by the learned Senior Advocate for the petitioner that the power exercised under Article 73 of the Constitution of India is not only colourable exercise of powers, SCA/16500/2005 6/75 JUDGMENT but it is also used mala fide. There is section 119 which prohibits inquiry by the Commissioner of Railway Safety, once the Commission is appointed, under the Act of 1952. Likewise, section 3 of the Act of 1952, prohibits, the Central Government to appoint another Commission, if the State has appointed a Commission, for the same matter. Keeping in mind these two provisions, the powers exercised by the Union of India under Article 73 of the Constitution of Indian for appointment of a High Level Committee is illegal, void and deserves to be quashed and set aside. An act, which cannot be done directly, can never be done indirectly. It is also stated by the learned Advocate for the petitioner that by giving powers under section 11 of the Act of 1952, the High Level Committee cannot be equated with the Commission under the Act of 1952. It is also stated by the learned Senior Advocate for the petitioner that if authorised purposes and unauthorised purpose for the appointment of the Committee are so interwoven with each other, that they cannot be segregated. Predominant nature is to be seen and predominant nature of the scope of appointment of High Level Committee is over-lapping with the scope and sphere of the Commission appointed by the State Government SCA/16500/2005 7/75 JUDGMENT under the Act of 1952 dated 6th March, 2002. The learned Senior Counsel has also compared the scope of inquiry, by the Commission, appointed by the State Government and scope of the inquiry, by High Level Committee, appointed by the Central Government under Article 73 of the Constitution of India and it is pointed out that subsequently appointed High Level Committee is assigned the functions which are predominantly the same as those of, the functions of the Commission, appointed by the State under the Act of 1952 and therefore also, the powers exercised by the Central Government under Article 73 of the Constitution of India for appointment of a High Level Committee deserves to be quashed and set aside. The learned counsel has also pointed out on facts, certain observations of the Division Bench of this Court and has pointed out that factually, the theory of accident propounded in the interim report is running counter to certain observations made by the Division Bench of this Court and thereby it also affects a fair trial, in several Sessions Cases which are pending for their adjudication. Those judgments are referred to hereinafter in the subsequent paragraphs. The learned counsel for the petitioner has also placed reliance on several judgments in SCA/16500/2005 8/75 JUDGMENT support of his arguments so far as locus standi is concerned and it is pointed out that when executive violates and exceeds its jurisdiction, locus is not very material. Nonetheless, as stated above, he is directly and vitally affected person. The learned counsel for the petitioner has relied upon the following judgments. 4. I have heard the learned Senior Advocate Mr. N.D.Nanavati with learned advocate Ms. Megha Jani, for the respondent no.1, who have pointed out that the petitioner has no locus standi to prefer the present petition against appointment of a High Level Committee by the Union of India under Article 73 of the Constitution of India. In fact, no injury has been caused to the petitioner by this appointment of High Level Committee. It is also submitted by the learned counsel for the respondent no.1 that the notifications dated 4th September, 2004 and 2nd December, 2005 issued by the Union of India are absolutely in consonance with the provisions of the Constitution of India, the Act of 1989 and the Act of 1952. The executive powers have been correctly utilised by the Union of India. There is no occupied filed as alleged by the learned advocate for the SCA/16500/2005 9/75 JUDGMENT petitioner. The learned Senior Advocate for respondent no.1 has read the scope and ambit of the High Level Committee and the scope and ambit of the Commission appointed by the State under the Act of 1952 and pointed out that the High Level Committee appointed by the Union of India under Article 73 of the Constitution of India has been appointed for finding out the cause of fire and for giving advice to the Railway Ministry. The inquiry relates to more than one State. The word “cause” is missing in the nature and scope of the inquiry by the State Commission. The State Commission has not yet completed its inquiry. It is also stated by the learned Senior Advocate that in fact, the State Government has no power, jurisdiction and authority to appoint the Commission for the subject matter which falls in list-I, that is, Union list, especially for entry no. 22 thereof in 7th schedule to the Constitution of India and therefore, in fact, the respondent no.1 has got all powers for appointment of the Commission under the Act of 1952. Nonetheless, the Union of India has respected the Commission appointed by the State, but that never ousts the powers of Union of India to appoint a High Level Committee under Article 73 of the Constitution of SCA/16500/2005 10/75 JUDGMENT India. It is also submitted by the learned Senior Advocate for respondent no. 1 that after appointment of the High Level Committee, vide notification dated 4th September, 2004, at a belate stage, the present petition has been preferred by the petitioner. It is also stated by the learned Senior Counsel for respondent no.1 that no prejudice is going to be caused to the petitioner as the trial is not going to be affected by the report of the High Level Committee. The learned Senior Counsel has also relied upon certain judgments which indicate that there can be no effect upon the trial by the report of the Commission. Thus, the petitioner will suffer no injury, even by the appointment of the High Level Committee vide notification dated 4th September, 2004. He has vehemently read and re-read the judgment reported in 1988(3) SCC 609 and various paragraphs thereof. It is further submitted by him that in fact, the High Level Committee has been appointed to find out the cause of fire and the reasons for the fire caused in various coaches of Sabarmati Express on 27th February, 2002. Therefore, there is no dispute, no lis, before the High Level Committee and its decision is neither an order nor a judgment. Nothing is binding upon anyone much less upon the court SCA/16500/2005 11/75 JUDGMENT which is conducting Sessions cases. The interim report has already been published on 17th January, 2005 and therefore, nothing remains in the present petition and the petition, has, in fact, become infructuous. The learned Senior advocate has also relied upon Rule 2(6) of Statutory Investigation Into Railway Accidents Rules, 1998. It is stated by the learned Senior Advocate that these Rules give enough guidelines for interpretation of section 119 of the Act of 1989 which make it explicitly clearer that the Commission as envisaged under section119 of the Act of 1989 means the Commission appointed by the Central Government. Therefore, if the Commission is appointed by the State, it cannot be said that “the field is occupied by law”. Therefore, respondent no.1 has got all powers to exercise executive powers under Article 73 of the Constitution of India. Thus, the help of the aforesaid Rules has been taken, for the interpretation of section 119 of the Act,1989. It is also further submitted by the learned Senior Advocate for respondent no.1, that even otherwise also, section 119 of the act of 1989 is not a bar or ban for appointment of a High Level Committee. The learned counsel has also relied upon the judgment delivered by the Hon'ble Apex Court reported in AIR SCA/16500/2005 12/75 JUDGMENT 1955 SC 548 and has pointed out the scope and ambit of usage of powers under Article 73 of the Constitution of India and submitted that looking tot he facts of the present case, the powers exercised under Article 73 of the Constitution of India for issuance of the notification dated 4th September, 2004 cannot be said to be ultra vires the Act of 1989 or the Act of 1952 and therefore, the petition may not be entertained by this Court. 5. I have also heard learned Advocate Dr. Mukul Sinha who is the intervener in the petition, who has pointed out that looking to the prayers in the petition has become infructuous. The appointment of the High Level Committee is for a fixed term. Once the term is over, the petition has become infructuous. Even interim report of the Committee has been already published on 17th January, 2005 and therefore, other prayers of the petition cannot be granted to the petition. It is stated by the learned advocate Mr. Sinha that looking to the provisions of the Act of 1989, it cannot be said that the field is occupied by this Act of 1989. On the contrary, there can be more than one High Level Committees, looking to the complexity of facts involved in the incident. SCA/16500/2005 13/75 JUDGMENT The learned counsel Mr. Sinha has also relied upon judgments delivered by the Hon'ble Apex Court reported in 1998(8) SCC 735 and 2003(3) SCC 117 and pointed out that the Court should not issue a writ in the petition which has become infructuous. Passage of time and efflux of time sometimes makes petition infructuous. This petition is no exception to that rule and therefore, the petition may not be entertained by this Court. The learned counsel has also argued at length, the powers and scope under Article 73 of the Constitution of India to be read with the provisions of the Act of 1989 and the Act of 1952 and has pointed out that there is no violation of any of the provisions of the Act of 1989 not of the Act of 1952 by appointment of a High Level Committee by the Union of India vide notification dated 4th September, 2004. 6. I have also heard the learned Advocate General Mr. K.B.Trivedi for the respondent State of Gujarat who has submitted that the notification dated 4th September, 2004 issued by the Central Government, is patently violative of the provisions of the Act of 1989 and the provisions of the Act of 1952. It is also submitted by the learned Advocate General that SCA/16500/2005 14/75 JUDGMENT executive powers cannot be exercised for the field (subject matter) which is already occupied the law. The executive ought to follow the law drafted by the Parliament or by the State Legislative Assembly. If no law is enacted upon a particular subject or for a particular purpose, the executive powers under Article 73 of the Constitution of India can be exercised or when the law has been enacted, but, upon a particular subject, if it is silent, in such circumstances also, powers under Article 73 of the Constitution of India can be exercised. But, when already an explicitly clear law is in existence, in defiance of the provisions of the Act, no executive powers can be exercised by Union of India under Article 73 of the Constitution of India. The executive powers cannot replace the provisions of law. Executive powers can be exercised when no guidance is given by law. Once law guides the executive, the executive ought to follow the law, whether they like or not. Even for achieving better results, the field which is occupied by law, should be kept open for following that law by the executives. If the executive are using powers, even if field is occupied by law, it is usage of powers, despite incompetency which tantamounts to colourable SCA/16500/2005 15/75 JUDGMENT exercise of powers. Looking to the facts of the present case, it is stated by the learned Advocate General that sections 114 and 115 of the Act of 1989 clearly empower the Commissioner to hold an inquiry into the cause that lead to an accident. Powers for holding inquiry by the Commissioner have also been mentioned under section 116 of the Act of 1989. Even power to administer oath has also been given to the Commissioner of Railway Safety, under the Act of 1989. Once these provisions are in existence, the powers cannot be exercised under Article 73 of the Constitution of India. The respondent no.1 ought to follow this procedure in holding an inquiry. The method of holding inquiry has been clearly referred to in the Act of 1989 by the notification dated 4th September, 2004. These provisions have been given go- by. This is not permissible during Rule of law. Several judgments have been quoted by the learned Advocate General which will be referred to hereinafter. It is also stated by the learned Advocate General that in fact, initially, the Commissioner had already pointed out that he is unable to hold an inquiry. His inability he has already shown in writing to the higher officers. Thereafter, the Commission has been appointed by the SCA/16500/2005 16/75 JUDGMENT State under the Commission of Inquiry Act, 1952. The learned Advocate General has also relied upon section 119 of the Railways Act,1989 and pointed out that once Commission is appointed under the Act of 1952, it alone can go into the cause of accident. Neither any Committee can be appointed by the Central Government nor the Commissioner of Railway Safety, can continue any inquiry, under sections 114, 115 and 116 of the Act of 1989. It is also stated by the learned Advocate General that by publishing interim report, the petition has not become infructuous. Once initiation of action of usage of Article 73 of the Constitution of India, for appointment of a High Level Committee, if declared as void, all the subsequent action is nothing but a nullity. It is also further submitted by the learned Advocate General that he has seen the stage of inquiry of the Commission appointed by the State and he has made a statement that on or before December, 2006, the functions assigned to the Commission vide notification dated 6th March, 2002 will be over and most likely, its report may be given by that time. The State will assist the Commission so that report may be submitted as expeditiously as possible. Nonetheless, statistical figures have been given by SCA/16500/2005 17/75 JUDGMENT the learned Advocate General as to how many witnesses have been examined and how many affidavits have been received by the Commission. These figures are more than 1000. It is further stated by the learned Advocate General that in view of the provisions of the Act of 1989 and the Act of 1952, the Union of India has no power to appoint a Committee vide notification dated 4th September, 2004 and therefore, further empowering the Committee vide notification dated 2nd December, 2005 (issuing notification under section 11 of the Act of 1952) also deserves to be quashed and set aside. 7. Having heard the learned advocates for both the sides and looking to the facts and circumstances of the case, I am of the opinion that the notification dated 4th September, 2004 issued by respondent no.1 Union of India under Article 73 of the Constitution of India as well as the subsequent notification dated 2nd December, 2005 issue under section 11 of the Act of 1952, are violative of the provisions of the Act of 1989 as well as violative of the provisions of the Act of 1952 and the powers exercised under Article 73 of the Constitution of India are bad in law and therefore, the same deserve SCA/16500/2005 18/75 JUDGMENT to be quashed and set aside for the following facts and reasons: (A) Necessary provisions of the Act of 1989, the Act of 1952 and of Statutory Investigation into Railways Accident Rules,1998 which are read and re-read and relied upon by learned advocates for both the sides are as under: Sections 2(6), 5, 114, 115, 116 and 119 of the Railways Act, 1989, read as under: “Section 2(6) “Commissioner” means the Chief Commissioner of Railway Safety or the Commissioner of Railway Safety appointed under section 5;” “Section 5. Appointment of Chief Commissioner of Railway Safety and Commissioners of Railway Safety.- The Central Government may appoint a person to be the Chief Commissioner of Railway Safety and such other persons as it may consider necessary to be the Commissioners of Railway Safety.” “Section 114. Inquiry by Commissioner- (1) On the receipt of a notice under section 113 of the occurrence of an accident to a train carrying passengers resulting in loss of human life or grievous hurt causing total or partial disablement of permanent nature to a passenger or serious damage to railway property, the Commissioner shall, as soon as may be, notify the railway administration in whose jurisdiction the accident occurred of his intention to hold an inquiry into the causes that led to the accident and shall at the same time fix and communicate the date, time and place of inquiry: Provided that it shall be open to the Commissioner to hold an inquiry into any SCA/16500/2005 19/75 JUDGMENT other accident which, in his opinion, requires the holding of such an inquiry. (2) If for any reason, the Commissioner is not able to hold an inquiry as soon as may be after the occurrence of the accident, he shall notify the railway administration accordingly.” “Section 115. Inquiry by railway administration- Where no inquiry is held by the Commissioner under sub-section (1) of Section 114 or where the Commissioner has informed the railway administration under sub-section (2) of that section that he is not able to hold an inquiry, the railway administration within whose jurisdiction the accident occurs, shall cause an inquiry to be made in accordance with the prescribed procedure.” “Section 116. Powers of Commissioner in relation to inquiries-(1) For the purpose of conducting