NILKANTH TULSIDAS BHATIA Vs. UNION OF INDIA

JUDGEMENT

(1.) 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, 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 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 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, 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 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 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.