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2. To ascertain as to whether the incident at Godhra was a pre-planned and whether information was available with the agencies which could have been used to prevent the incident;

3. To recommend suitable measures to prevent recurrence of such incidents in future;

[ii] It appears from the record that while the proceedings before the Commission appointed by the State Government for the aforesaid inquiries is going on to inquire into the above aspects, the Government of India, Ministry of Railways, (Railway Board) in exercise of the powers under Article 73 of the Constitution of India constituted a High Level Committee consisting of Mr. Justice U.C.Banerjee, Retired Judge of the Supreme Court of India; (hereinafter referred to as the Committee for short)

He submitted that when an accident takes place, the railway administration within whose jurisdiction the accident occurs, as also the railway administration to whom the train involved in the accident belongs, is required to give notice of such accident to the State Government and the Commissioner having jurisdiction over the place of accident and as per the provisions of Section 114 of the Act, on receipt of such a notice under Section 113 of the Act of the occurrence of an accident 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 cause that led to the accident and shall at the same time fix and communicate the date, time and place of inquiry. He has also submitted that as per Section 114(2) of the Act, 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. Shri Nageshwar Rao, learned senior counsel has further submitted that in the present case considering the provisions of Section 119 of the Railways Act and considering the fact that for the incident in question, a Commission is already appointed by the State Government to inquire into the cause of fire for the incident and as it was not possible to hold inquiry considering the ban imposed under Section 119 of the Railways Act, the Commissioner did not hold any inquiry and in fact, the Commissioner communicated the reasons to the Railway Administration accordingly, and in spite of that, under the guise of Notification dated 4.9.2004 in exercise of the powers under Article 73 of the Constitution of India, a High Level Committee consisting of Mr. Justice U.C.Banerjee is constituted, for which, the Commission is already appointed by the State Government consisting of Mr. Justice G.T.Nanavati and Mr. Justice K.G.Shah to inquire into the incident and the cause of fire for the incident and the other aspects and therefore, it is submitted that the Committee appointed exercising the powers under Article 73 of the Constitution of India is without jurisdiction and in teeth of Section 119 of the Railways Act which requires to be quashed and set aside. He has also further submitted that once the statute provides something to be done, it should be done only in accordance with the said statute and what could not have been done by the Railway Administration and by the Committee is now permitted to be done by the Notifications under challenge. In support of his above submissions, he has placed reliance upon the following decisions.

7. Shri Nageshwar Rao, learned counsel on behalf of the petitioner has further submitted that constitution of the High Level Committee consisting of Mr. Justice U.C.Banerjee exercising the powers under Article 73 of the Constitution of India, and thereafter, issuance of further notification is malafide and for extraneous considerations. He requested to consider the time gap between the incident and constitution of the High Level Committee. He has submitted that the incident took place on 27.2.2002 and the Commission came to be appointed by the State Government under Section 3 of the Commissions of Inquiry Act, 1952 on 6.3.2002 to inquire into the cause of fire of the incident and other aspects and notification appointing High Level Committee exercising the powers under Article 73 of the Constitution of India is issued only on 4.9.2004 i.e. after a period of almost two years and seven months of the incident and after two years and six months of the appointment of the Commission by the State Government under the Act of 1952. Relying on the interim report submitted by Justice U.C.Banerjee Committee and summons to witnesses issued by the Committee, Shri Nageshwar Rao has submitted that the intention and inquiry made by the said Committee is to inquire into cause of fire and not for suggesting safety measures as contended on behalf of the contesting respondents. It is also further submitted by him that it is nothing but an eye wash. He has drawn attention of the Court to various findings and observations made by the Committee in its interim report and has submitted that the Committee is inquiring into the cause of fire of the incident which is directly in conflict with the terms of reference of the Commission appointed by the State Government. He has relied upon various finding, observations and sentences of the interim report submitted by the Mr. Justice Banerjee Committee which more particularly the following observations :

11. No other submissions made on behalf of the either parties.
12. Heard the learned counsel appearing on behalf of the respective parties qua the interim relief. It is required to be noted that in an unfortunate incident that took place on 27.2.2002 and for whatever be the reasons fire took place in S-6 Coach of Sabarmati Express train wherein 58 passengers / persons were burnt alive and more than 40 persons were injured and in the subsequent violence in various parts of the State of Gujarat, many persons have lost their lives and many others injured. To know the cause of fire is the main concern of all. The State Government therefore decided to appoint Commission of Inquiry under Section 3 of the Commissions of Inquiry Act, 1952 and to inquire into and report on in respect of the aforesaid incident. The terms of reference to inquire into by the Commission appointed by the State Government i.e. Mr. Justice G.T.Nanavati Commission is already referred and reproduced hereinabove. It is required to be noted that for the said incident which took place on 27.2.2002 criminal proceedings and the trial are pending before the Special POTA Court. After a period of almost two years and seven months the Central Government, Ministry of Railways (Railway Board) has appointed a High Level Committee exercising the powers under Article 73 of the Constitution of India and the terms of reference of the said High Level Committee is already reproduced and referred to hereinabove. Relying upon the provisions of the Railways Act, more particularly, Section 113, 114, 115 and 119 it is submitted on behalf of the petitioner that notifications appointing the High Level Committee exercising the powers under Article 73 of the Constitution of India which is in exercise of the administrative powers is nullity and in the teeth of Section 119 of the Railways Act 1989. It is required to be noted that even the Commissioner has assigned its reasons as required to be assigned under Section 114(2) of the Railways Act showing its inability to hold inquiry with regard to the incident in question considering the provisions of Section 119 of Railways Act. It is required to be noted that apart from Section 119 of the Act, even under Section 3 of the Commissions of Inquiry Act, 1952, more particularly, Section-3(B), where any Commission has been appointed by the State Government to inquire into any matter, the Central Government shall not appoint another Commission to inquire into the same matter for so long as the Commission is appointed by the State Government is functioning. It is required to be noted that so far as the High Level Committee constituted by the Central Government vide notification dated 4.9.2004 exercising the powers under Article 73 of the Constitution of India, is not the Commission appointed under the Commissions of Inquiry Act, 1952 and even it is also conceded by the learned counsel appearing on behalf of the contesting respondents. Therefore, the question which is required to be considered is, whether for the same matter which is being inquired into by the Commission appointed by the State Government appointed under Section 3 of the Commissions of Inquiry Act, 1952, even appointment of the Committee constituted in exercise of the powers under Article 73 of the Constitution of India is permissible or not. It is the contention on behalf of the petitioner that the Committee is constituted to inquire into the cause of fire and the very matter i.e. to inquiry with regard to cause of fire is already being inquired into by the State Government and therefore, the terms of reference of the High Level Committee, in my opinion, is directly seems to be in conflict with the terms of reference of the Commission appointed by the State Government. The learned counsel appearing on behalf of the petitioner has relied upon the interim report submitted by the Committee as well as witness's summons issued by the Commission in which it is specifically mentioned that it is to inquire into the cause of fire. It is also further submitted by the learned counsel for the petitioner that the witnesses who are summoned by the Committee are already examined by the Commission appointed by the State Government and / or to be examined and not only that those witnesses are also the witnesses in the trial before the POTA Court and therefore, the finding not only is likely to affect the trial only but are also likely to influence the witnesses also and therefore, they have prayed for stay of the further proceedings before the Committee. Against which, it is the contention on behalf of the contesting respondents that the Committee is inquiring in the cause of fire to suggest and recommend the safety measures which is not being inquired into by the Commission appointed by the State Government. It is required to be noted that to inquire the cause of fire is a common inquiry held by the Commission as well as the Committee. Therefore, to inquire into the cause of fire by the Committee prima facie seems to be directly in conflict with what is being inquired into by the Commission appointed by the State Government, might be for different purposes. As stated hereinabove, inquiry with regard to cause of fire is common. If the Central Government, Ministry of Railways intents to have suggestion and recommendations as regards the safety measures, they could have done so after availing finding by the Commission appointed by the State Government appointed under the Commissions of Inquiry Act with regard to cause of fire and they could have waited till that date, more particularly, when the High Level Committee itself came to be constituted after a period of two years and seven months of appointment of Commission by the State Government. Therefore, considering the provisions of the Railways Act stated hereinabove as well as Section 3 of the Commissions of Inquiry Act, prima facie, this Court is of the opinion that the proceedings before the High Level Committee to inquire into the cause of fire should not be permitted to be proceeded further as the same would be in direct conflict with the terms of reference of the Commission appointed by the State Government. It is the apprehension on the part of the petitioner that witnesses who are summoned by the Committee are either already examined by the State level Commission and they are to be examined and/or they are witnesses before the POTA Court in criminal trial with regard to the aforesaid incident and therefore, trial is to be affected adversely and /or other witnesses are likely to be prejudiced. It is also apprehended by the petitioner that any finding might prejudice the proceedings before the Commission as well as the Special Court in criminal trial and so far as the outcome of the trial is concerned, the petitioner is vitally interested and affected party. Considering the above fact situation and the discussion not only there is prima facie case in favour of the petitioner but the balance of convenience is also in favour of the petitioner and if the interim relief as prayed for in not granted, then, irreparable loss and damage will be caused and not only the proceedings before the Commission appointed by the State Government but the criminal trial pending before the POTA Court and the witnesses are likely to be influenced.