Gujarat High Court
Pucl Gujarat Chapter & vs Chief Secretary - State Of Gujarat & ... on 16 June, 2014
Equivalent citations: AIR 2014 (NOC) 542 (GUJ.)
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
C/MCA/2765/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL APPLICATION (FOR DIRECTION) NO. 2765 of 2013
In WRIT PETITION (PIL) NO. 216 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA
Sd/-
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
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1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment?
2 To be referred to the Reporter or not? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India, 1950 or any
order made there under?
5 Whether it is to be circulated to the civil judge? No
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PUCL GUJARAT CHAPTER & 1....Applicant(s)
Versus
CHIEF SECRETARY - STATE OF GUJARAT & 1....Opponent(s)
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Appearance:
MR AJ YAGNIK, ADVOCATE for the Applicant(s) No. 1 - 2
MR PK JANI, GOVERNMENT PLEADER for the Opponent(s) No. 1
NOTICE SERVED for the Opponent(s) No. 2
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Page 1 of 14
C/MCA/2765/2013 JUDGMENT
CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 16/06/2014
ORAL JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA) By this Misc. Civil Application, the petitioner has prayed for direction upon the respondent/State of Gujarat to immediately forward all documents in terms of the directions given in the order dated 14th October 2013 and in paragraph 20 of the very order passed in Misc. Civil Application No.3101 of 2012 in connection with the Public Interest Litigation being Writ Petition (PIL) No.216 of 2012. The petitioner has further prayed for direction upon the respondent- Commission to immediately give access to the petitioner to all the documents sought for by him without going into the aspect of relevancy and confidentiality pursuant to the direction contained in the order of this court dated 14th October 2013. Other consequential reliefs have also been prayed for.
2. A Public Interest Litigation being Writ Petition (PIL) No.216 of 2012 was filed by the two petitioners, the present petitioner being the petitioner No.2 therein, thereby praying for direction upon the respondent No.1-Commission to exercise its power under Section 4 of the Commission of Inquiries Act and to direct the State-respondent to Page 2 of 14 C/MCA/2765/2013 JUDGMENT protect and preserve all the documents sought by the petitioner no.2 vide applications dated 30th December 2011 and 21st February 2012. Various other prayers were also made in the said application.
3. When the said application was taken up for hearing, Mr Trivedi, the learned Advocate General appearing with Mr Jani, the learned Government Pleader, asserted before us that the documents sought for by the petitioner no.2 had already been placed before the Commission. Mr Trivedi further submitted that if any of those documents had not yet been placed before the Commission, he, on behalf of his client, undertook to place those documents before the Commission within seven days from that date. Mr Trivedi, however, disputed the right of the petitioner No.2 to maintain the said Public Interest Litigation for the purpose of giving evidence before the Commission.
4. On 12th October 2012, we disposed of the said Public Interest Litigation by holding that the State Government having itself constituted the Commission and the petitioner No.2 having decided to assist the Commission, and at the same time, the Commission having already issued summons upon him to appear, a valuable legal right had accrued in his favour to give evidence therein and for such purpose, if the available records are not given to him for inspection, he cannot effectively assist the Commission. We, thus, held that the writ- application was maintainable for protecting such legal right which accrued in favour of the petitioner No.2.
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C/MCA/2765/2013 JUDGMENT
5. However, as Mr Trivedi had already submitted before this Court that his client would submit those documents, if not already produced, we specifically recorded that the main question involved in the Public Interest Litigation, therefore, became inconsequential. We, however, rejected the prayer of the petitioners for a direction upon the Chief Minister to enforce his appearance and examination as, in our view, it was for the Commission to decide such question. We further held that when a witness is summoned by the Commission, if any impediment is created in his way of disclosing the relevant facts known to him before the Commission, such witness has a definite right to move this Court under Article 226 of the Constitution of India disclosing the obstacle and for the above reason, we decided to entertain the application for the limited purpose of seeing that the petitioner No.2 could have inspection of documents sought for and those documents, which he considered to be useful, should not be destroyed.
6. In view of the submission of the learned Advocate General, as indicated above, we directed the State-respondent to send all the documents sought for by the petitioner no.2, to the Commission within seven days from that date, if not already been sent.
7. We further directed the petitioner No.2 to file his proposed affidavit within one month after the inspection of the documents was taken with further direction that the inspection should be taken Page 4 of 14 C/MCA/2765/2013 JUDGMENT positively within a fortnight from that date. We further made it clear that we had otherwise not gone into the question of manner of the enquiry to be conducted by the Commission and it was for the Commissioner to decide the question of relevancy or otherwise of those documents.
8. Subsequently, the State-respondent came up with an application for clarification thereby praying for suitably clarifying or modifying the contents of paragraphs 6 and 9 or our order dated 12th October 2012 as well as the aspect relating to grant of inspection of the documents produced by the State Government to be left to the Commission. In the said application, it was alleged that on the basis of instructions given by Shri V.B. Badheka, the Under Secretary to the Government of Gujarat, Home Department and Shri Pankaj R. Dave, the Section Officer, the learned Advocate General made the statement before the Court that the documents sought for by the writ-petitioner No.2 had not been destroyed and on that basis, this Court passed the direction. According to the State-respondent, those officers were not aware of the fact that few documents out of the list of 47 documents referred to by the writ-petitioners being Sl. No. 20 to 25, 27, 40 and 44 indicated at pages 485 to 488 of the petition, were in fact destroyed long back in the years 2006 and 2010 in a routine manner in terms of the well-established practice evolved by way of the instructions of General Administration Department of the State Government. For the above mistake, the State-Respondent Page 5 of 14 C/MCA/2765/2013 JUDGMENT apologized for the said communication gap and thus, the application was filed to point out that those nine documents had already been destroyed after the expiry of the required period of preservation.
9. Although the said application was opposed by the writ- petitioners, we partially allowed the said application by clarifying our order dated 12th October, 2012 particularly, the paragraphs 6 and 9 of the said order regarding submission of the learned Advocate General by recording the stance of the State Government that nine of those documents had already been destroyed and that the statement of the learned Advocate General that those were in existence was made based on the alleged wrong instruction of the concerned officers then present in court. We clarified that we had not gone into the question whether those documents were really destructed in the year 2010 as claimed in the application or not and whether it is lawfully permissible to destruct such documents after the constitution of an Inquiry Commission, and that it was for the Commission constituted to answer those questions on the basis of evidence that will be adduced before it. We further clarified that it was for the Commission to draw appropriate inference on the truth or otherwise of the statements made by the State in this regard. We further directed that the State must comply with our order of production of the documents sought for by the petitioner before us except the above nine documents alleged to have been already destructed within a week from that date, if not already produced before the Commission. Page 6 of 14
C/MCA/2765/2013 JUDGMENT
10. By the present application, the original writ-petitioner no.2 has alleged that in spite of our specific direction to give inspection of the documents already filed by the State-respondent, the Commission, by order dated 21st October 2013 has, instead of giving inspection, held that those documents can be given only after the question of relevancy and confidentiality of those documents is considered and consequently, called upon the petitioner no.2 to inform the Commission as early as possible as to what extent those are relevant.
11. Mr Joshi, the learned Senior Advocate appearing on behalf of the petitioner strenuously contended before us that in the past, this Court having specifically directed the State-respondent to file all the documents including the secret documents and the petitioner having been given the permission to inspect those documents, the Commission could not decide the question of relevancy and secrecy of those documents first before giving inspection of those documents to the petitioner. According to Mr Joshi, the above direction is contrary to the direction given by this Bench in the past.
12. Mr Jani, the learned Government Pleader, appearing on behalf of the State-respondent has, however, opposed this application on various grounds. First, Mr Jani contends that the present application in this form is not maintainable as, according to him, the order passed by the Commission has given a separate cause of action for Page 7 of 14 C/MCA/2765/2013 JUDGMENT filing another writ-application and no direction should be passed on this Misc. Civil Application for clarification.
13. Secondly, Mr Jani contends that previously when the main Public Interest Litigation was taken up for hearing and even when the subsequent application for modification was disposed of, it was not brought to the notice of this Court that the petitioner having already given evidence in details, there was no necessity of production of those documents and no question arose for giving inspection of those documents to the petitioner. At any rate, Mr Jani wants that the previous orders that we had passed should be recalled and we should affirm the order of the Commission impugned in this application.
14. After hearing the learned counsel for the parties and after going through the aforesaid materials on record, we find that in the past, it was no other person than the learned Advocate General who submitted before us that his client would produce all those documents sought for by the petitioner and on that basis, the Public Interest Litigation was disposed of. Subsequently, however, an application was filed pointing out that nine of the documents sought for by the petitioner had already been destructed in due course. We recorded such submission and kept it open for the Commission to decide whether such allegation is correct or not after going through the materials on record. But the fact remains that we permitted the petitioner to have the inspection of those documents and after such Page 8 of 14 C/MCA/2765/2013 JUDGMENT inspection, it was for the Commission to decide whether those were relevant or not. The question of secrecy now raised by the Commission, in our view, is no longer open inasmuch as it was the learned Advocate General himself who made specific submission that his client would produce all the documents and only the aspect of relevancy should be kept open for consideration. Whether a particular document is secret one or not, is essentially a question of fact and once the learned Advocate General has agreed to produce all documents and to give inspection of those by only leaving the question of relevancy of those for the decision of the Commission and such order having attained finality, it is no longer open to the State to pray before the Commission that the inspection of those documents should be refused as those are secret ones. A concession by a learned counsel on a question of fact, it is well-settled law, is binding upon the litigant and as such, there is no question of opposing the prayer of inspection of any document on the ground of alleged confidentiality.
15. We find substance in the contention of Mr Joshi that once the documents have been produced by the State and this Court has passed direction for inspection of those documents keeping the question of relevancy open for the Commission, the Commission should not have passed direction asking the petitioner first to convince the Commission that it was not a secret document or an irrelevant document.
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C/MCA/2765/2013 JUDGMENT
16. We, therefore set aside that part of the order dated 22nd October 2013 by which the Commission has called for explanation from the petitioner to satisfy that those documents are relevant before giving inspection of those documents. Similarly, the question of deciding whether the inspection of the document should be refused on the ground secrecy is no longer available to the Commission as even in the application for modification filed by the State before this Court, the question of confidentiality was raised but subsequently, the same was not pressed and such order has attained finality.
17. As regards the first contention of Mr Jani that this application is not maintainable in the present form, we find no substance inasmuch as in the past, this Court having specifically upheld the right of inspection of the petitioner, the aforesaid order of the Commission was in violation of our order and in such a case, the petitioner is entitled to draw the attention of this Court to pass specific direction for compliance of our earlier order and for that reason, separate writ- application is not required to be filed. The petitioner, in substance, has prayed for enforcement of our earlier order.
18. Mr Jani also tried to impress upon us that our order originally passed is not binding upon the Commission because although the Commission was made party but was not given opportunity of hearing.
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C/MCA/2765/2013 JUDGMENT
19. There is no dispute with the proposition of law that the Commission constituted under the Commission of Enquiry Act and functioning with this State is subject to the power of superintendence of this High Court and, therefore, in exercise of power conferred under Article 227 of the Constitution of India any order which is in conflict with the earlier direction passed by this Court can be set aside and in such a case, the concerned Commission is not required to be even made party. It is now settled by the Supreme Court that except in the case of writ in the nature of certiorari, the Authority, subject to the power of superintendence of a High Court, whose order is sought to be challenged before such Court, is not required to be made a party in the proceedings before the High Court; nevertheless, the order passed by High Court, will bind the said Authority.
20. Mr Jani, as a last resort, desperately submitted before us that the order passed by the Commission is not subject to judicial review of a High Court in exercise of power under Article 226 or 227 of the Constitution of India.
21. We are afraid, we are unable to accept such contention as tenable in the eye of law.
22. The above question has already been explained by us while disposing of the original writ-application being Writ Petition (PIL) Page 11 of 14 C/MCA/2765/2013 JUDGMENT No.216 of 2012 where we specifically held that in order to successfully maintain a writ-application, the petitioner must establish beyond reasonable doubt that by the action or the inaction on the part of a State within the meaning of Article 12 of the Constitution of India, any of his legal or fundamental rights has been infringed. In the case of Jigneshbhai Dhirendrabhai Goswami v. State of Gujarat and others [Writ Petition (PIL) No.172 of 2011], relied upon by us, we specifically recorded in the facts of the said case that by establishment of a Commission under the Commissions of Inquiry Act, 1952, the right of no citizen is affected, as pointed out by the decisions of the Supreme Court quoted in the said judgment. It was further pointed out that the finding of the Commission is merely recommendatory in nature for the purpose of advising the State Government for effective control of the situation in future and the State Government can, even after submission of recommendations, refuse to implement the same. We, in the order disposing of the writ- application out of which this application arises, pointed out that in a case where the Commission has issued summons to a witness and thereafter, if any impediment is created in his way in disclosing the relevant facts known to him before the Commission, such witness has definite right to move the High Court under Article 226 of the Constitution of India disclosing the impediment and for that purpose a writ-application is very much maintainable. The above decision being inter parties is binding upon the State.
23. In the instant case, we have pointed out that after issuing Page 12 of 14 C/MCA/2765/2013 JUDGMENT summons and even after the passing of direction by this Court for production of documents and grant of inspection to the petitioner, the Commission put further restriction by demanding explanation form the petitioner on question of relevance and secrecy which is contrary to our direction and, therefore, the present application is maintainable. We have no doubt given liberty to the Commission to decide the question of relevancy before relying upon such document but such question would be decided after the inspection of those documents is given to the petitioner.
24. Although Mr Joshi tried to convince us that in paragraph 3 of the order impugned there is mention of nine documents which have not been produced on the ground that those have not been maintained and such conduct of the State is violative of our earlier order, we leave this question to be agitated before the Commission and it is for the Commission to pass appropriate order.
25. We, thus, dispose of this application by directing the Commission to give inspection of the documents to the petitioner as earlier indicated in our order and after inspection, the Commission will be free to consider the question of relevancy or otherwise of the produced documents, as indicated earlier, meaning thereby, to decide whether the documents are relevant or irrelevant. Let such inspection be given by 20th June 2014 and time to file affidavit earlier granted is extended by a week from the date of inspection. Page 13 of 14
C/MCA/2765/2013 JUDGMENT The order of the Commission impugned is modified to the extent indicated above.
Direct service is permitted.
26. Since this order has been passed in open Court in the presence of the learned counsel for the parties, they are at liberty to communicate the final direction that has been passed by this Court to the Commission and if such a communication is made, the Commission will act on such communication.
Sd/-
(BHASKAR BHATTACHARYA, CJ.) Sd/-
(J.B.PARDIWALA, J.) zgs Page 14 of 14