# Allama Zamir Naqvi v. State of U.P. & Ors

- **Citation:** (2016) 3 ILRA 621
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-03-29
- **Bench:** Amreshwar Pratap Sahi, Attau Rahman Masoodi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/allama-zamir-naqvi-v-state-of-u-p-ors-43492
- **Pages:** 6

## Text

3 All. Allama Zamir Naqvi Vs State Of U.P. & Ors.
621

7. We have considered the submissions raised and also the judgment in the case of
Commissioner of Income Tax Vs. Vatika Township P. Ltd.: [2014] 367 ITR 466 (SC)).
The only ground seeking condonation of delay is that since the right of appeal has now been
created, therefore, the appellant has a right of appeal against the order passed in 2008. We
are unable to agree with this proposition inasmuch as, a right of appeal is a matter of
procedure that gets converted into a substantive right as a creature of statute. The appeal has
to be filed within the limitation prescribed. It cannot create a retrospective right to file an
appeal which did not exist in the year 2008 or even on 06.01.2009 when the order was
served on the appellant. In the absence of existence of such a right, it was open to the
appellant to have filed a writ petition challenging the same in 2008-09. The very same view
has been taken by the Tribunal and it has declined to grant any benefit of a bona fide act as
urged by the appellant. The statutory remedy of appeal having come into existence on
01.06.2015, cannot be stretched retrospectively for extending the benefit as claimed by the
appellant for condoning the delay. The reliance placed on the judgment by the learned
counsel for the appellant is misplaced and no substantial question of law having arisen, the
appeal deserves to be rejected.

8. The appeal is accordingly rejected.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.03.2016

BEFORE

THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE ATTAU RAHMAN MASOODI, J.

Misc. Bench No. - 5085 of 2016

Allama Zamir Naqvi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for Petitioner:
Asok Pande

Counsel for Respondents:
C.S.C., A.S. Rakhra

Proceedings

The petition, in the form of a Public Interest Litigation, was filed seeking to quash the report of the
Vishnu Sahai Commission, appointed under the Commissions of Inquiry Act, 1952 to inquire into the
2012 Muzaffarnagar Communal Riots. The petitioner challenged the eligibility of Justice Vishnu Sahai
to head the Commission, citing disability under Section 24(3) of the Protection of Human Rights Act,
1993.
622 INDIAN LAW REPORTS ALLAHABAD SERIES
The State opposed the petition, arguing that the Commission had already submitted its report,
accepted by both Houses of the Legislature, and the challenge was delayed and without bona fides.
The petition was heard and considered on 29.03.2016.

Procedure

Filing of Writ Petition under Article 226 of the Constitution of India.
Arguments heard from both sides regarding legality, eligibility, and scope of the Commission's
appointment.
Consideration of precedents concerning delay, appointment to commissions, and powers of High
Courts to order investigation.
Review of statutory provisions under the Commissions of Inquiry Act, 1952 and Protection of Human
Rights Act, 1993.

Facts

Vishnu Sahai Commission appointed to inquire into 2012 Muzaffarnagar riots.
Petitioner challenged eligibility of Justice Vishnu Sahai due to prior position in U.P. Human Rights
Commission.
Allegation that appointment constituted employment under the State and was therefore invalid.
Petition requested reconstitution of the Commission or transfer of investigation to CBI.
State argued the Commission had completed its enquiry, report was accepted, and challenge was
delayed.
Appointment of Commission is not employment; the body functions independently with procedural
powers under the 1952 Act.

Contentions

Petitioner:

Justice Vishnu Sahai was ineligible to head the Commission.
The report of the Commission is illegal and must be quashed.
Alternative relief: investigation by CBI.

Respondent/State:

Commission's report submitted and accepted; Commission is functus officio.
Petition delayed; suffers from laches and lack of bona fides.
Appointment under 1952 Act is not employment under State; the Commission is independent.
No material provided to justify CBI investigation.

Analysis

Delay and Laches: Petition filed years after report submission; belated challenge not maintainable.
Nature of Appointment: Appointment of a Commission under 1952 Act is not employment; no
master-servant relationship exists.
Independence of Commission: Powers of the Commission are quasi-judicial, self-regulated under
Rules framed under the Act.
Effect of Report: The Commission's report is advisory; it does not prevent legal remedies in criminal
or civil proceedings.
3 All. Allama Zamir Naqvi Vs State Of U.P. & Ors.
623
CBI Investigation: Petition lacks sufficient material to request CBI investigation; Supreme Court
precedents require concrete facts.

Relevant Case Law:

Dr. Nutan Thakur v. State of U.P., Writ Petition No. 162(MB)/2016 - Independent commission
appointments not employment.
Secretary, Minor Irrigation & Rural Engineering Services, U.P. v. Sahngoo Ram Arya [(2002) 5 SCC
521]
State of West Bengal v. Committee for Protection of Democratic Rights [(2010) 3 SCC 571]
Bharati Tamang v. Union of India [(2013) 15 SCC 578]
Mithilesh Kumar Singh v. State of Rajasthan [(2015) 9 SCC 795]
Pooja Pal v. Union of India [JT 2016 (1) SC 430]

Conclusion

Petition challenging eligibility of Justice Vishnu Sahai is dismissed.
Report of the Vishnu Sahai Commission, though open to criticism, does not affect legal rights of
affected parties.
Prayer for CBI investigation is denied due to lack of material.
Dismissal does not prevent any aggrieved person from approaching a competent Court for relief in
accordance with law.

(Delivered by Hon'ble Amreshwar Pratap Sahi, J.
&
Hon'ble Attau Rahman Masoodi, J.)

1. This petition in the shape of a Public Interest Litigation has been filed praying for
quashing of the report of Vishnu Sahai Commission that was appointed by the State
Government under the Commissions of Inquiry Act, 1952 [hereinafter referred to as 'the
1952 Act'] to enquire, investigate and report on the Muzaffarnagar Communal Riots that
occurred in the year 2012. The main ground of challenge is to the eligibility of Justice
Vishnu Sahai, Retired Judge and former Acting Chief Justice of the Allahabad High Court
to chair the said Commission due to the alleged disability under Section 24 (3) of the
Protection of Human Rights Act, 1993.

2. Shri Asok Pande, learned counsel for the petitioner urges that Justice Vishnu Sahai
who is a former Member of the U.P. Human Rights Commission, after having ceased to hold
office as a Member, was ineligible for further employment under the Government of a State
or a Government of India. According to him, his appointment as a one-man Commission
under the Commissions of Inquiry Act, 1952 amounted to an employment under the State
Government and therefore the entire exercise undertaken by him to enquire into the
Muzaffarnagar Communal Riots was without any authority, and by an incompetent person.
Consequently, the report and its acceptance are all illegal and therefore, the State
Government should be directed to re- appiont some other Judge to head the Commission and
to enquire into the riots, or in the alternative direct the Central Bureau of Investigation (CBI)
to investigate the role of politicians and the bureaucrats involved in the riots.
624 INDIAN LAW REPORTS ALLAHABAD SERIES

3. The petition was vehemently opposed by the State contending that not only the
enquiry is over and the report submitted, but the same has also been accepted by both the
Houses of Legislature and consequently, the Commission having became functus officio,
any challenge raised to it should not be entertained at this stage. It is also urged by the
learned Additional Advocate General that the appointment of the Commission was made
way back more than three years ago, and no challenge having been raised and the
Commission having completed its enquiry, the petition also suffers from laches and lack of
bona fides.

4. It is also submitted that even otherwise on merits, under the 1952 Act, the
appointment of a Commission under Section 3 is only for the purpose of making an enquiry
in a matter of public importance, and the appointment of a Commission is not an
"employment" either under the 1952 Act or under the Commissions of Inquiry (Central)
Rules, 1972. It is also urged that this is not even a re-employment under the State nor is the
appointee on the Commission an employee under the State Government. It is also urged that
the State Government does not exercise any control over the Commission during its
function. The powers of the Commission are to be regulated by a procedure that can be
regulated by itself subject to the Rules framed thereunder. Not only this, the Commission
has the power to regulate its own procedure in respect of any matter for which no provision
is made in the Rules. The Commission ceases to exist only on a notification under Section 7
of the 1952 Act.

5. Having heard learned counsel for the parties and having gone through the provisions,
the first issue is about the stage of the challenge raised to the appointment of the
Commission. The fact that the Commission has already submitted its report which has been
accepted by the two Houses of Legislature is undisputed. The Commission therefore has
already concluded its enquiry and with the submission of the report has ceased to exist. The
challenge raised therefore at this belated stage to the eligibility of the chairperson of the
Commission does not deserve to be entertained.

6. It is true that mere speed is not the test of justice, but delayed action that may reflect
a sudden upraise to target a calculated harm long after the cause arose, will have a
considerable influence on a decision making process. Discretion under Article 226 of the
Constitution in a professed public cause has to be exercised cautiously that may ultimately
serve the good of the community. Raising an issue for merely publicizing a past stale act
cuts at the root of credibility of an action. On the other hand a truth, even if spoken at last
should not be ignored, and at times as Thomas Jefferson said "Delay is preferable to error."
Delays are however fraught with dangers especially when they are an outcome of some
casual afterthought. Delay in law long after a cause arises, does not give strength nor does it
mature or ripen the cause.

7. A report under the 1952 Act places facts and is only an opinion that touches
recommendations. The contents of the report are not so binding so as to frustrate any legal
action by an affected person under the law of the land. It only helps the Government to
3 All. Allama Zamir Naqvi Vs State Of U.P. & Ors.
625
understand and place its point of view before the Houses of Legislature to satisfy the
members and to justify its stand on a matter of public issue which can be accepted or
rejected. It is open to debate, criticism and appreciation depending upon how it is received
and understood, but a perception formed about it does not impede the legal rights of a
person under statutory provisions where an affected party can raise the same before a Court
of Law. In a case of riot like the present one, any pending criminal matter before a
competent court would be governed by the evidence adduced and would not be affected by
the report under the 1952 Act.

8. Apart from this, the ground of challenge raised is also not legally sustainable
inasmuch as the appointment of a Commission under the 1952 Act is not an employment
under the State Government. The Commission is appointed for making an enquiry into a
definite matter of public importance as specified and within the time as provided for under a
notification. This is not a job assignment but is the institution of an investigative body to
make an enquiry in order to ascertain the cause of an incident, which in this case was a
communal riot at Muzaffarnagar in the year 2012. It is not an appointment to a cadre under
State employment nor does it reflect a master and servant relationship. The Constitution of a
Commission for making such an enquiry is therefore not an employment offered to a person
to enter State Services.

9. The Commission also has powers that are conferred on it for making enquiry, which
does not have any ingredient so as to convert the status of the Commission into an
employment under the State Government. These aspects about the absence of any contract
of service has been dealt with by our Division Bench in a matter relating to the appointment
of the Chairman of the U.P. State Human Rights Commission in Writ Petition No. 162 (MB)
of 2016, Dr. Nutan Thakur versus State of U.P. and others. Since the same arguments have
been advanced in the present petition, it would not be necessary for us to repeat the reasons
given in the aforesaid judgment which also persuade us not to accept the contentions raised
in the present writ petition.

10. The other argument with regard to setting up an investigation through the CBI
cannot be mixed up with the issue relating to the appointment of a Commission by the
Government under the 1952 Act. The issue of transferring a criminal investigation to the
CBI has to be founded on appropriate facts which are to be pleaded in order to persuade a
Court of Law to pass an order for taking up the investigation by some other agency. The
present writ petition as framed does not bring on record any such material that may impel us
to draw a conclusion that the investigation now deserves to be carried out by some other
agency.

11. The question of entrusting the investigation to the CBI can only be considered if
there is sufficient material as delineated in the case of Secretary, Minor Irrigation & Rural
Engineering Services, U.P. and others versus Sahngoo Ram Arya and another [(2002) 5
SCC 521]. It is no doubt true that the Constitution Bench in the case of State of West
Bengal and others versus Committee for Protection of Democratic Rights, West Bengal
and others [(2010) 3 SCC 571] has acknowledged the powers of the Court to order an
626 INDIAN LAW REPORTS ALLAHABAD SERIES
investigation by the CBI. The powers of the Court are circumscribed and can be exercised
only if there is sufficient material to do so as per the ratio in the cases indicated above. Two
other judgments may be mentioned where the Supreme Court has traversed the law relating
to the powers of the High Court in proceeding to order for a CBI enquiry, namely, Bharati
Tamang versus Union of India and others [(2013) 15 SCC 578] and Mithilesh Kumar
Singh versus State of Rajasthan and others [(2015) 9 SCC 795]. The said issue has also
been dealt with in the latest decision of the Supreme Court in the case of Pooja Pal versus
Union of India and others [JT 2016 (1) SC 430].

12. In the absence of any proper material on record, the second relief prayed for also
cannot be considered in the wake of lack of essentials. The writ petition sans merit and is
hereby rejected. The dismissal of this petition will however not prejudice or curtail the right
of any aggrieved person to claim such relief about investigation nor will it impede the
powers of the competent Court to do so if necessary in view of the law enunciated by the
apex Court and referred to here-in-above.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.03.2016

BEFORE

THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE ATTAU RAHMAN MASOODI, J.

Misc. Bench No. 6211 of 2016

Mubeen Khan ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for Petitioner:
Manoj Kumar Singh

Counsel for Respondents:
C.S.C., Jai Kumar

HEADNOTE:

This Public Interest Litigation challenges the continuance of a fair price shop license by respondent
No.5 in village Adhipur, a hamlet of Gram Sabha Dashrathpur, following the election of his wife. The
petitioner contended that the license-holder was disqualified under Government orders dated
03.05.1999, 18.07.2002, and 17.05.2010. The Court observed that the matter relates to enforcement
of statutory eligibility provisions for holding fair price shop licenses. Citing the Full Bench judgment in
Indrapal Singh v. State of U.P. & Others, [(2014) 1 UPLBEC 379], the Court emphasized that the
Gram Pradhan and the license-holder must be given notice before passing any order. The writ petition
was disposed of directing the competent authority to act in accordance with the Government orders
within a stipulated time.

ORDER: