NILKANTH TULSIDAS BHATIA Vs. UNION OF INDIA

JUDGEMENT

(1.) The present Special Civil Application is heard by this Court for admission as well as for interim relief at length for couple of days. Heard Shri Nageshwar Rao, learned senior advocate appearing with Mr.Y.F.Mehta, learned advocate appearing on behalf of the petitioner and Shri N.D.Nanavati, leraned senior advocate with Ms.Megha Jani, learned advocate appearing on behalf of the respondent No.1 and Shri J.M.Malkan, learned Assistant Solicitor General for India for Central Government and Shri Kamal B. Trivedi, learned Assistant Advocate General, Shri Sunit Shah and Shri Pranit K. Nanavati, learned advocate appearing on behalf of the respective party at length. Though served, nobody appeared on behalf of the respondent No.6 " a High Level Committee consisting of Mr.Justice U.C.Banerjee, a retired Judge of Supreme Court of India constituted under notification issued by the Central government of India being Notification No.ERB-I/ 2004 / 23/ 29 dated 4.9.2004 published in Part-I, Section-I of the Gazette of India dated 25.9.2004.

(2.) Considering the contentious issues raised in the main Special Civil Application, some of the them are referred to and discussed hereinafter while considering the question of interim relief, and even the learned counsel appearing on behalf of the contesting respondents also fairly conceded before this Court that considering the various issues involved in the present Special Civil Application, they cannot be decided at the admission stage and for which, the petition deserves admission and therefore, this Court admitted the present Special Civil Application on 21.2.2006. However, due to paucity of time though the matter was fully heard qua interim relief, the order qua interim relief could not be passed by this Court on last hearing i.e. on 21.2.2006 and therefore, for pronouncement of order on interim relief, the matter was adjourned to 7.3.2006. So far Civil Application No.12631 of 2005 in Special Civil Application No.16500 of 2005, this Court had already passed the order on 24.1.2006 to the effect that the ad-interim relief granted earlier in main Special Civil Application as well as Civil Application No.12631 of 2005 are directed to be continued and they are still in force.

(3.) Heard learned counsel appearing on behalf of the parties at length qua interim relief. Before I deal with the submissions on behalf of the respective parties, for and against granting of interim relief, the background and few facts and chronological events, since necessary and relevant, are discussed as under. [i] In an unfortunate incident which had taken place on 27.2.2002 at 7.47 Hours the Coach No.S-6 was set on fire and as many as 58 passengers of that coach were burnt alive and more than 40 passengers sustained injuries. The petitioner is one of the victims who was traveling by the said train and was in that Coach-S-6 itself. Criminal complaints came to be filed and/or lodged being C.R.No.9 and 10 of 2002 at Godhara Railway Police Station on 27.2.2002 itself for the offence punishable under Section-307, 147, 148, 149, 436, 153-A read with Section-120-B of the IPC and Section 141, 150 and 153 of the Indian Railways Act, 1989 and Section-3 and 7 of the Damage to the Public Property Act. It also appears from the record that later on provisions of Prevention of Terrorist Act, 2002 are also applied and the said case is transferred to the Special Court under the POTA Act and the trial for the aforesaid criminal complaints and offences is pending. It also appears from the record that on the very next date the Hon'ble Chief Minister of the State of Gujarat in the House of Legislative Assembly made a statement on 28.2.2002 to appoint a Commission under Section-3 of The Commissions of Inquiry Act, 1952 (hereinafter referred to as the "Act of 1952" for short ) to inquire into the said incident and the State Government under Government Notification dated 6.3.2002 appointed the Commission of Inquiry under the Act of 1952 consisting of Mr.Justice K.G.Shah, retired Judge of the High Court of Gujarat to inquire into and report on "THE INCIDENT OF SETTING ON FIRE SOME COACHES OF SABAMATI EXPRESS TRAIN NEAR GODHRA RAILWAY STATION ON 27TH FEBRURARY, 2002 AND SBUSEQUENT INCIDENCE OF VIOLENCE IN THE STATE OF GUJARAT IN THE AFTERMATH AND ADEQUACY OF ADMINSTRATIVE MEASURES TAKEN TO PREVENT AND DEAL WITH THE DISTURBANCE IN GODHRA AND SUBSEQUENT DISTURBANCE IN THE STATE". It also appears from the record that subsequently vide Government Notification dated 21.5.2002 issued by the State of Gujarat in Legal Department, the aforesaid Commission was reconstituted by converting the Single Member Commission into two Members Commission headed by Mr.Justice G.T.Nanavati, Retired Judge of the Hon'ble Supreme Court as the chair-person and Mr.Justice K.G.Shah, Retired Judge of the High Court of Gujarat as a member. Thereafter, vide another Government Notification issued by the State Government dated .3.6.2002 the earlier Government Notification dated 6.3.2002 came to be amended so as to include the incident of violence that took place on and from 27.2.2002 to 30.3.2002 and even the time limit for completion of the inquiry and submission of the report by the Commission came to be extended upto 5.12.2002. It appears that thereafter the said time limit has been extended from time to time. It also further appears from the record that thereafter earlier notification dated 6.3.2002 came to be further amended and the scope of inquiry was further widened and/or extended vide Government Notification dated 20.7.204 for inquiring into the role and conduct of the Chief Minister, other Ministers in his Council, Police Officers, other individuals and organizations in both the events referred to earlier in Clause (a) and (b) and the role and conduct of the then Chief Minister and other Minister(s) in his council of Ministers, Police Officers, (i) in dealing with any political or non-political organization which may be found to have been involved in any of the events referred to the incident and /or subsequent, (ii) in the matter of providing protection, relief and rehabilitation to the victims of communal riots (iii) in the matter of recommendations and directions given by National Human Rights Commission from time to time, came to be included. By the said notification dated 20.7.2004, in earlier Para- 2 of the terms of reference and in sub-para (1) in Clause (b), after the words "incidence of violence, for the words and figures `that took place on and from 27th February, 2002 to 30th March, 2002', the words and figures "that took place on and from 27th February, 2002 to 31st May, 2002" as well as in para-3 for the words "three months", the words "on or before 5th December, 2005" came to be substituted. Thus, the terms of reference of Commission head by Mr.Justice G.T.Nanavati, Former Judge of the Hon'ble Supreme Court as the Chairperson and Mr.Justice K.G.Shah, Former Judge of the High of Gujarat as a Member reads as under :