2019 Supreme(P&H) 409

IN THE HIGH COURT OF PUNJAB AND HARYANA
AJAY KUMAR MITTAL, ANUPINDER SINGH GREWAL, JJ.
BHUPINDER SINGH HOODA - Appellant
Vs.
STATE OF HARYANA - Respondent
CWP No. 24139 of 2016
Decided on : 10-01-2019

Commission of Inquiry--Bhupinder Singh Hooda case--Grant of commercial license for development of land--Commission did not issued mandatory notice under section 8-B of the Act--Report held to be null and void.
Commission of Inquiry--Opportunity of being heard--Wherever the conclusion of the report effects the reputation of a delinquent person, the said person is mandatorily required to be served with notice under S.8-B--Non serving of such notice would make the report of commission null and void.

Headnote:(A) Commission of Inquiry Act, 1952, S.4 and S.8-B--Quashing of Report--Bhupinder Singh Hooda case--Commission of Inquiry was formed against Ex. Chief Minister, Haryana to enquire the matter relating to grant of commercial licence to some entities in Gurgaon for development of land--Commission did not enquire into any specific complaint and just took sample cases to understand the modus operandi of the alleged scam--Commission issued notice u/s 4 for being present before Commission--Petitioner filed detailed representation and asked specific questions and applicability of provisions of law so as to enable him to answer the queries by the Commission--However, commission did not answered the specific questions and sent reply by just denying the onus of replying such questions--Commission filed its report to Government; such report was kept secret and was not made public--Petition by petitioner for quashing such report and restraining Government from taking any action on basis of such report--Petition allowed on following grounds--Held;

       (i) It was mandatory for commission to issue notice u/s 8-B of the Commission of Inquiry Act giving the opportunity of being heard where contents of report were very likely to have adverse effect on reputation of delinquent person;

       (ii) No notice under S.8-B was given by Commission--Notice under S.4 cannot be construed as notice under S.8-B as both the Sections are independent and operate in different areas.

       (iii) Court received the report in sealed cover and pursued the contents so as to ensure the requirement of notice under S.8-B--It was found the report if made public is likely to have adverse effect on reputation of the petitioner.

       (iv) Report held to be null and void and Government restrained from taking any action on basis of that report

       Operative part of Judgment by Hon`ble Mr. Justice Ajay Kumar Mittal

       Accordingly, the report submitted by the Commission is held to be non est and the same shall not be published. However, it shall be open for the Commission to proceed further from the stage when notice under Section 8B of the Act was required to be issued and submit fresh report in accordance with law. The writ petition is disposed of in the manner indicated hereinbefore.

       Operative part of Judgment by Hon`ble Mr. Justice Anupinder Singh Grewal

       Resultantly, I would partly allow the petition. The report of the Commission is not sustainable and is hereby quashed. It shall not be published as it cannot be read against the petitioner and no action on the basis thereof be taken against the petitioner. The respondent No.1 would, however, be at liberty to appoint a Commission of Inquiry on the same subject matter."

       Order

       In view of the difference in the operative portion of the judgments of Ajay Kumar Mittal,J. and Anupinder Singh Grewal,J., the matter be placed before Hon`ble the Chief Justice for appropriate orders.

       (B) Commission of Inquiry Act, 1952, S.8-B--Opportunity of being heard--Wherever the conclusion of the report effects the reputation of a delinquent person, the said person is mandatorily required to be served with notice under S.8-B--Non serving of such notice would make the report of commission null and void. (Para 57)

       (C) Commission of Inquiry Act, 1952, S.8-B--Opportunity of being Heard--Where a notice bereft of any charges and other details was issued by a commission of inquiry, such notice was in effect a notice under section 4(a) of the Act for summoning a witness and could not be construed as a notice under Section 8B of the Act. (Para 58)

       (D) Constitution of India 1950, Art.226--Writ jurisdiction--Scope of power--The powers under the said Article exercisable by the High Court are not limited to the rights which emerge or flow under Chapter III of the Constitution of India, i.e. fundamental rights alone, whereas it can be exercised for any other purpose also--Article 226 of the Constitution of India confers discretionary and extraordinary powers under which prerogative writs are issued by the High Court--It is also equitable jurisdiction which has been conferred upon the High Court for doing substantial justice where miscarriage of justice or failure of justice has occasioned due to some deliberate act or otherwise (Para 67)

       (E) Commission of Inquiry Act, 1952, S.8-B--Opportunity of being Heard--Requirement of Notice--The vague and nebulous reference in the order to the conduct of the petitioner cannot by itself be construed to mean that the notice was under Section 8- B of the Act.

       The adverse material before the Commission which would have potential to be the foundation of the report or recommendation of the Commission affecting the reputation of the petitioner would have to be put to him to enable him to respond thereto. The complaints and the material against the petitioner was required to be put before him and he was to be granted reasonable opportunity to send his reply thereto as well as to lead evidence in his support and only thereupon after fair consideration, could an adverse finding be recorded against him. (Para 79)

       (F) Commission of Inquiry Act, 1952, S.4 and S.8-B--Opportunity of being heard--Scope of S.4 and S.8-B--Section 8-B of the Act is independent of Section 4 of the Act--Both Section 4 and Section 8-B operate in their own field and are mutually exclusive--Section 4 of the Act is essentially for securing presence and evidence of witnesses which would be required by the Commission to arrive at conclusion towards the terms of reference assigned to it--In this regard the Commission has been entrusted with the powers of the civil Court. (Para 82)

       On the other hand, Section 8-B is a valuable right to a person against whom there is alleged adverse material and the findings or observations thereon are likely to be made against him which would prejudicially affect his reputation. The reference in Section 8-B to any stage indicates that fair and proper notice under Section 8-B would be essential before the submission of the report. It could be sent at any stage of the proceedings of the Commission when material surfaces before the Commission which would be against a person and is likely to be the foundation of observations or findings of the Commission. (Para 83)

       (G) Commission of Inquiry Act, 1952, S.4 and S.8-B--Opportunity of being heard--Scope of S.4 and S.8-B--Section 8-B of the Act has been specifically incorporated as a safeguard against a person`s reputation being affected without a reasonable opportunity to him to present his defence. (Para 86)

       It would be desirable that a person who receives notice from Commission of Inquiry under Section 4 puts in appearance before the Commission. If a person for any reason does not appear before the Commission, the Commission would, of course, use powers of civil court under Section 4 or continue the proceedings. However, when anything adverse against that person crops up before the Commission and is likely to be the basis of any observations, comments or findings in the report having the potential to harm his reputation, it would be incumbent upon the Commission to serve a notice to the person along with the material against him and give him an opportunity to explain his conduct before recording such observations or findings. (Para 84)

       (H) Commission of Inquiry Act, 1952, S.4 and S.8-B--Opportunity of being heard--Scope of S.4 and S.8-B--Opportunity of being heard--Validity of Notice--To conclude whether the alleged notice was in consonance with the mandatory provisions of S.8-B of the Act, it is well within extra ordinary power of High Court to pursue the report--Objection that the report cannot be perused by the Court before it is tabled before the State Legislature is not maintainable. (Para 66)

       (I) Commission of Inquiry Act, 1952, S.3--Purpose of making an inquiry--The subject matter of the inquiry can only be a definite matter of public importance--There must exist a definite matter of public importance into which an inquiry is in the opinion of the appropriate government, necessary so to do or is required by a resolution in that behalf passed by the House of the People or the Legislative Assembly of the State-Government is not empowered to appoint a Commission of Inquiry for the purpose of holding an enquiry into any other matter. (Para 13)

       (J) Commission of Inquiry Act, 1952--Scope of Power--Commission is a fact finding body meant only to instruct the mind of the Government without producing any document of a judicial nature and that the findings of the Commission of Inquiry are not definite like a judgment--The Commission has no power to enforce its findings and recommendations--The inquiry or report cannot be looked upon as a judicial enquiry.

       In such matters, the appropriate Government has of necessity to act upon the information available with it. It is the best Judge of the reliability of the source of information and if it acts in good faith on the materials brought to its notice and honestly comes to the conclusion that a definite matter of public importance calls for an enquiry with a view to devise measures for preventing the recurrence of such evil, the Court would then be slow to adjudge the executive action to be bad or illegal. Formation of opinion depends on the subjective satisfaction of an appropriate government but should be based on an objective or real material and not merely on some vague allegations or hearsay evidence or to making fishing enquiry. (Para 14)

       (K) Commission of Inquiry Act, 1952, S.3--Definite matter of public importance--A Chief Minister, no doubt, holds a public office--His acts are necessarily public acts if they arise out of his office--If they are grave enough, they would be definite matters of public importance--Where there are allegations regarding allotment of land and grant of change of land use during his tenure, there cannot be any issue that it is not a definite matter of public importance--The cleanliness of public life, in which the public should be vitally interested, must be a definite matter of public importance. (Para 25)

       (L) Commission of Inquiry Act, 1952--Scope of Judicial Review-The formation of opinion by the Government to constitute a commission of inquiry is subjective and ultimate conclusion reached by the State is not justifiable--The power of judicial review cannot be extended to find out sufficiency of materials--The only question to be considered is that whether the allegations, if honestly believed, constitute a definite matter of public importance or not. (Para 27)

       (M) Commission of Inquiry Act, 1952, S.3--Power of appointment of Commission--As per Clause 18 of the Schedule framed under Rule 5, only reports of the Committee of Inquiry appointed in pursuance of the resolution passed by the State Legislature are required to be placed before the Council for the purpose of its disposal in accordance with the provisions contained in Part II--There is no provision in the said Business Rules prohibiting the Minister-in-charge from referring a matter to the Commission of Inquiry for the purpose of an independent probe and fact finding exercise. (Para 35)

       (N) Commission of Inquiry Act, 1952--Power of appointment of commission--In the instant case, both the departments of General Administration and Administration of Justice were held by the Chief Minister and therefore, under the Business Rules read with the Schedules to the Allocation Rules, only the Chief Minister was empowered and competent to refer a matter and appoint Commission of Inquiry. (Para 36)

       The Chief Minister who was the Minister-in-Charge of the General Administration Department and Administration of Justice Department had appointed Mr. Justice S.N.Dhingra (Retd.), Judge, Delhi High Court as Commission of Inquiry vide order dated 13.5.2015 for probing the allotment of land and grant of change of land use in Sector 83, Gurgaon during the tenure of the previous government and in pursuance thereto, notification was issued on 14.5.2015. As the said matter does not relate to report of a Committee of Inquiry/Commission of Inquiry appointed in pursuance of a resolution passed by the State Legislature, there was no requirement for the Chief Minister to present the said matter before the Council of Ministers for the purpose of making a reference and appointing a Commission of Enquiry. Thus, no challenge can be made on the exercise of said power on the ground that prior to referring of matter to Commission of Inquiry, permission of Council of Ministers was not taken since the said procedure is not contemplated under Business Rules more particularly under Rule 5, Schedule and Part II of the Business Rules. However, the Chief Minister considered it appropriate and placed the matter before the Council of Ministers in its meeting held on 1.6.2015, which was approved. Thereafter, the Government passed order dated 3.6.2015 fixing the terms and conditions of the Commission of Inquiry. In such a situation, the appointment of Commission of Inquiry cannot be challenged to be vitiated on account of seeking ex post facto approval of the Council of Ministers. (Para 37)

       (O) Commission of Inquiry Act, 1952--Extending the scope of inquiry--Issuance of amending notification to cure defect in original notification--No illegality--Held; there was nothing to prevent the Government from issuing a fresh notification appointing a Commission of Inquiry--If that could be done, there was no reason why the same result could not be achieved by the combined effort of two notifications. In such circumstances, the amending notification taken together with the original notification may be read as a fresh notification within the meaning of Section 3 of the Act operative from the date of the later notification. (Para 44)

       (P) Commission of Inquiry Act, 1952--Purpose of formation--Malafide and political rivalry are no ground to challenge Commission of Inquiry if otherwise objective material for formation of Commission of Inquiry exist. (Para 49)