# SHRI RAM KRISHNA DALMIA v. SHRI JUSTICE S. R. TENDOLKAR & OTHERS

- **Citation:** [1959] 1 S.C.R. 279
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Bench:** S. R. DAS c. J, Venkataram:A Aiyar, B. P. Sinha, S. K. Das, A. K. Sarkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shri-ram-krishna-dalmia-v-shri-justice-s-r-tendolkar-others-1610
- **Pages:** 34

## Headnote

Commission·of Inquiry-Legislation empowering Government to
appoint Commission-Co'ltstitutionality-If violates guarantee of
equality before the law-Notification setting up Commission and conferring powers thereupon-Legality of-If ultra vires the ActWhether Commission usurps judicial functions-Commissions of
Enquiry Act, r952 (LX of r952), s. 3-Constitution of India, Arts.
r4_and 246: Seventh Schedule, Entry 94, List I and Entry 45,
List Ill.
In exercise of the powers conferred upon it by s. 3 of the
Com~issions of Enquiry Act, 1952, the Central Government by a
notification dated December II, 1956, appointed a Commission of
Inquiry to inquire into and report in respect of certain companies
mentioned in the Schedule attached to the notification and in respect of the nature and extent of the control and interest which
certain persons named in the notification exercise,d over these
companies. By subsequent notifications the Central Government
made all the provisions of sub-ss. (2), (3), (4) and (5) of s. 5 of the
Act applicable to the Commission and fi¥ed a period of 2 years
from February II, 1957, as the period within which the Commission was to exercise its function and to make its report. The
four persons named filed three applications under Art. 226 of the
. Constitution before the Bombay High Court questioning the validity of the Act and of the notification and praying for writs for
quashing the same. The High Court dismissed the applications
and ordered that the said notification was legal and valid except
as to the last part of cl. IO thereof which empowered the Commis_sion to recommend the action which should be taken as and. by
way of securing redress or punishment or to act as a preventive in
future cases. The petitioners as well as the Union of India filed
appeals:
·
Held, that the Act was valid and intra vires and that the
notification was also valid excepting the words" "as and by way
of securing redress or punishment " in cl. IO thereof which werlt
beyond the Act.
.
The Act was enacted by Parliament under entry 94 of List I
and entry 45 of List III of the Seventh Schedule of the Constituti~n
whiCh relate to inquiries for the purposes of any of the matters in
List I and in Lists II and III respectively. The inquiry which
may be set up bJl a law made under these entrie.s. is pqt limited1
•
•
March 28.
280
SUPREME COURT REPORTS
[1959]
I958
in its scope and ambit, to fntnre legislative purposes only. Such
.
.
a law m~y also be for administrative purposes and the scope of
Shri Ram KYishna the 1nqu1ry under such a law will cover all matters which may
Dalmia
properly be regarded as ancillary to such inquiries.
v.
The Act does not delegate to the Government any arbitrary
Shri Justice
or uncontrolled power and does not Qffend Art. 14 of the Constitus. R. Tendolkar !ion. The discretion given to the Government to set up a Com6- Others
mission of Inquiry is guided by the policy laid down in the Act
that the executive action is to be taken only when there exists <f
definite matter of public importance into which an inquiry is
'
necessary.
•
Kathi Raning Rawat v. State of Saurashtra, [1952] S. C. R.
435; applied.
The Commission is merely to investigate, record its findings
and make its recommendations which are not enforceable proprio
vigor.. The inquiry or report cannot be looked upon as judicial
inquiry in the sense of its being an exercise of judicial function
properly so called and consequently Parliament or the Government cannot be said to have usurped the functions of the ~udi
ciary.
The notification was well within the powers conferred on the
Govern1uent by s. 3 of the Act and did not go beyond the provisions of the Act.
The conduct of an individual person or company or a group of individual persons or companies may, in certain
circumstances, become a definite matter of public importance with ..
in the meaning of s. 3( I) and call for an inquiry. Besides,. s. 3
authorises the Government to appoint a Commission .of Inquiry
n

## Text

_Characters 0–39,903 of 78,752. This is a partial read: ask again with offset=39903 for what follows._

I
S.O.R.
SUPREME COURT REPORTS
279
SHRI RAM KRISHNA DALMIA
v.
SHRI JUSTICE S. R. TENDOLKAR & OTHERS
(and connected appeal)
(S. R. DAS c. J., VENKATARAM:A AIYAR, B. P. SINHA,
S. K. DAS, and A. K. SARKAR JJ.)
Commission·of Inquiry-Legislation empowering Government to
appoint Commission-Co'ltstitutionality-If violates guarantee of
equality before the law-Notification setting up Commission and conferring powers thereupon-Legality of-If ultra vires the ActWhether Commission usurps judicial functions-Commissions of
Enquiry Act, r952 (LX of r952), s. 3-Constitution of India, Arts.
r4_and 246: Seventh Schedule, Entry 94, List I and Entry 45,
List Ill.
In exercise of the powers conferred upon it by s. 3 of the
Com~issions of Enquiry Act, 1952, the Central Government by a
notification dated December II, 1956, appointed a Commission of
Inquiry to inquire into and report in respect of certain companies
mentioned in the Schedule attached to the notification and in respect of the nature and extent of the control and interest which
certain persons named in the notification exercise,d over these
companies. By subsequent notifications the Central Government
made all the provisions of sub-ss. (2), (3), (4) and (5) of s. 5 of the
Act applicable to the Commission and fi¥ed a period of 2 years
from February II, 1957, as the period within which the Commission was to exercise its function and to make its report. The
four persons named filed three applications under Art. 226 of the
. Constitution before the Bombay High Court questioning the validity of the Act and of the notification and praying for writs for
quashing the same. The High Court dismissed the applications
and ordered that the said notification was legal and valid except
as to the last part of cl. IO thereof which empowered the Commis_sion to recommend the action which should be taken as and. by
way of securing redress or punishment or to act as a preventive in
future cases. The petitioners as well as the Union of India filed
appeals:
·
Held, that the Act was valid and intra vires and that the
notification was also valid excepting the words" "as and by way
of securing redress or punishment " in cl. IO thereof which werlt
beyond the Act.
.
The Act was enacted by Parliament under entry 94 of List I
and entry 45 of List III of the Seventh Schedule of the Constituti~n
whiCh relate to inquiries for the purposes of any of the matters in
List I and in Lists II and III respectively. The inquiry which
may be set up bJl a law made under these entrie.s. is pqt limited1
•
•
March 28.
280
SUPREME COURT REPORTS
[1959]
I958
in its scope and ambit, to fntnre legislative purposes only. Such
.
.
a law m~y also be for administrative purposes and the scope of
Shri Ram KYishna the 1nqu1ry under such a law will cover all matters which may
Dalmia
properly be regarded as ancillary to such inquiries.
v.
The Act does not delegate to the Government any arbitrary
Shri Justice
or uncontrolled power and does not Qffend Art. 14 of the Constitus. R. Tendolkar !ion. The discretion given to the Government to set up a Com6- Others
mission of Inquiry is guided by the policy laid down in the Act
that the executive action is to be taken only when there exists <f
definite matter of public importance into which an inquiry is
'
necessary.
•
Kathi Raning Rawat v. State of Saurashtra, [1952] S. C. R.
435; applied.
The Commission is merely to investigate, record its findings
and make its recommendations which are not enforceable proprio
vigor.. The inquiry or report cannot be looked upon as judicial
inquiry in the sense of its being an exercise of judicial function
properly so called and consequently Parliament or the Government cannot be said to have usurped the functions of the ~udi
ciary.
The notification was well within the powers conferred on the
Govern1uent by s. 3 of the Act and did not go beyond the provisions of the Act.
The conduct of an individual person or company or a group of individual persons or companies may, in certain
circumstances, become a definite matter of public importance with ..
in the meaning of s. 3( I) and call for an inquiry. Besides,. s. 3
authorises the Government to appoint a Commission .of Inquiry
not• only for· the purpose of making an inquiry into a definite
matter of public importance but also for the purpose of performing such functions as may be specified in the notification.
It has not been established that the petitioners and their
companies have been arbitrarily singled out for the purpose of
hostile and discriminatory treatment and subjected to a harassing
and oppressive inquiry. In matters of this kind the Government
has of necessity to act upon the information available to it. It is
the.best judge of the reliability of the source of the information
and if it acts in good faith and honestly comes to the conclusion
that the act and conduct of the petitioners and the affairs of their
companies constitute a definite matter of public importance the
Court will be slow to adjudge the action to be bad and illegal.
The bare possibilil.Y that the powers may be misused or abused
cannot per se make the power bad. The power having been
entrusted to the Central Government and not to any petty official,
abuse of power cannot be easily assumed .
• In determining whether there is any intelligible differentia on
the basis of which the petitioners and their companies have peen
grouped together it is permissible to look not only at the facts
appearing in the notification but also the facts brought to the
notice of the Court upon affidavits. The facts ino the present case
•
•
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S.C.R.
SUPREME COURT REPORTS
281
afford s1,rffici.ent ~upport to tl).e pre~umptio11 of constitutionality
r958
of the n.otification and the petitioners have failed to discharge the
-
onus which was on them to prove that other people or companies Shri Ram Krishna
similarly situated have been left out and that the petitioners and
Da/mia
their companies have been singled out for discriminatory and
v.
hostile treatment.
Shti Justice
The recommendations of the CDmmission of Inquiry are of
~reat importance t.o the Gov!'!rnment in ,order to enable it to make
up its mipd ,;i.s to what legislative or administr!ltive rμeasures
should be adopted to eradicate the evil fo,upd or to implement
the beneficial objects it hais in view. There c~n l_:>i' no .. obj,ectiori
to the Commission reco.mmending the imposition of s9me form of
punisl).ment which will, in its opinion, be sufficiently deterrent to
delinquen.ts in future.
But the Commission cannot be asked to
ma~e ,recomipendati9ns for taking ,any ~.c.tion "as <J.nd by way of
securing redress or punishmept" in r.espe~t of wropgs alr,eady
done oi c.ommitted as this is the function of a Court Of law.
)':ven t:hough the oripinal notification appointing the Comm,ission '1id not fix the time within which the Commission was to
comp)eie its report the Government could validly do so by a subsequent notification.
1
.
CIVIL APPELLATE JumspICTION: Civil Appeals
Nos. 455 to 457 and 656 to 658 of 1957.
Appefl,ls fro:m the judgm,ept ,and order <;lated April
~9, 1957, of the Bombay ;Hig,h Court in M.isc. Applicati01;is ,Nos. 48 to 50 of 1957.
·
G. S. Pathak, S. K. Kapu,.r, P. N. Bhagwati and
Ganpat Rai, for the appellant in C. A. No .. 455 of
1'957 & respondent in C. A. No . .656 of 1957.
Sachin Chaudhry, R. J. Joshi, J. B. Dq,dac.,hanji,
Rarμ,eshwar Nath and S. N. Andley, for the appell~nts
in -C. As. Nos. 456 & 457 of 1957 and respondents in
C. As. Nos. 657 & 658 of 1957.
•
0. /{. Daphtary, Sol,icito,r-Ge,nerq,l for l'Yfdia, G. N.
J,oshi, K. H. Bhabha an.d R. H. Dhebar, for respondent
No. 4 in C. As. Nos. 455 to 457 of 1.957 and appellant
in C. As. Nos. 656 to ·658 of 1957.
•
·
1958. March 28. .The Judgment _of the Court was
"'
.de:livered by
S. R. Tendo/kar
&- O.tliers
D-1s. C. J.-These six several appeals a,re d:irected
Das c. J.
against a common judgment and order pronounced on
36
•
•
282
SUPREME COURT REPORTS
[1959j
·,958
April 29, 1957, by a Division Bench of the Bombay
Sh . R
. h High Court in three several Miscellaneous Applicaitions
" ;;;m;."' na under Art. 226 of the Constitution, namely, No. 48 of
v.
1957 filed by Shri l'l,am Krishna Dalmia (the appellant
Shri Justice
in Civil Appeal No. 455 of 1957), No. 49 of 1957 by
S. R. Tendolkar Shri Shriyans Prasad Jain and Shri Sital Prasad Jain
& Others
(the appellants in Civil Appeal No. 456 of 1957) and
No. 50 of 1957 by Shri Jai Dayal Dalmia and Shri
Das c. J.
Shanti Prasad Jain (the appellants in Civil Appeal
No. 457 of 1957). By those Misc1illaneous Applications
the petitioners therein prayed for an appropriate
direction or order under .Art. 226 for quashing and
setting aside notification No. S. R. 0. 2993 dated
December 11, 1956, issued by the Union of India in
exercise of powers conferred on it by s. 3 of the Commissions of Enquiry Act (LX of 1952) and for other
reliefs. Rules were issued and the Union of lndia
appeared and showed cause. By the aforesaid judgment and order the High Court discharged the rules
and dismissed the applications and ordered that the
said notification was legal and valid except as to the last r
part of cl. (10) thereof from the words "and the action"
to the words " in future cases " and directed the Commission· not to proceed with the inquiry to the extent
that it related to the aforesaid last part of cl. (10) of
the said notification. The Union of India has filed
three several appeals, namely, Nos. 656, 657 and 658
of 1957, in the said three Miscellaneous Applications
complaining against that part of the said judgment
and order of the Bombay High Court which adjudged
thii last part of cl. (10) to be invalid.
The Commissions of Inquiry Act, 1952 (hereinafter
referred to as the Act), received the assent of the
President on August 14, 1952, and was thereafter
brought into .force by a notification issued by the
Central Government under s. 1 (3) of the Act.
As its
long title states, the Act is one " to provide for the
appointment of Commissions of Inquiry and for vesting
such Commissions with certain powers ".
Sub-section (1) of s. 3, omitting the proviso not materiltl for
our present purpose, provides :
"The appropriate Government may, if it is of
•
•
•
•.
.... '
; ..
S.C.R.
SUPREME COURT REPORTS
283
op11110n that it is necessary so to do, and shall, if a
i958
resoliJtion in this behalf is passed by the House of the 5 h . R-K . h
h
b
h L . l .
A
rt
am
ris na
People or, as t e case may e, t e
eg1s ative
ssemDalmia
bly of the State, by notification in the Official Gazette,
v.
•
appoint a Commission of Inquiry for the purpose of
Shri Justic•
making an inquiry into any definite matter of public s. R. Tendolkar
importance and performing such functions and within
& Others
m.ich time as may be specified in the notification, and
the Commission so appointed shall make the Inquiry
and perform the functoions accordingly."
Under sub-s. (2) of that section the Commission may
consist of one or more members and where the Commission consists of more than one member one
of them may be appointed as the Chairman thereof.
Section 4 vests in the Commission the powers
of a civil court while trying a suit under the Code of
Civir Procedure in respect of .the several matters
specified therein, namely, summoning and enforcing
attendance of any person and examining him on oath,
requiring discovery and production of any document,
receiving evidence op. affidavits, requisitioning any
public record or copy thereof from any court or officer,
issuing commissions for examination of witnesses or
documents and any other matter which ma;y be prescribed. Section 5 empowers the appropriate Government, by
a notification in the Official Gazette, to confer on the
Commission additional powers as provided in all or
any of the sub-ss. (2), (3), (4) and (5) of that section.
Section 6 provides that no" statement made by a
person in the course of giving evidence before the
commission shall subject him to, or be used against
him in, any civil or criminal proceeding except a· prosecution for giving false evidence by such statement
provided· that the statement is made in reply
to a question which he is required by the Commission to answer or is relevant to• the subject
matter of the inquiry. The appropriate Government
• may under s. 7 issue a•notification declaring that the
Commission shall cease to exist from such date as may
be s[ll:lcified therein. Bys. 8 the Commission is empowered, subject to any rules that may be made, to regulate ·
its own procedure including the time and place of its
•
•
Das C. ].
•
284
SUPREME COURT REPORTS
[1959]
z95B
sittings and may act notwithstanding the temporary
Shri Ram Krishna absence of any member or the existence of any vacancy
Dalmia
among its members.
Section 9 provides for indemnity
•
• v.
to the appropriate Government, the. members of the
Shri Justice
Commission or other persons acting under their
s. R. T'ndolkar directions in respect of anything which is done or
& Others
Das C. ].
intended to be done in good faith in pursuance of the
Act. The rest of the sections are not material for th<!
purpose of these appeals.
In exercise of the powers co1tferred on it by s. 3 of
the Act the Central Government published in the
Gazette of India dated December 11, 1956, a notification in the following terms :
MINISTRY OF :FINANCE
(Department of Economic Affairs)
. ORDER
New Delhi, the 11th December, 1956
S. R. 0. 2993-Whereas it has been made to
to the Central Government that :
•
appear
(1)
a large number of companies and some firms
were promoted and/or controlled by Sarvashri Ramakrjshna Dalmia, J aidayal Dalmia, Shanti Prasad Jain,
Sriyans Prasad Jain, Shital Prasad Jain or some one
or more of them and by others being either relatives or
employees of the said person or persons, closely connected with the said persons ;
·
(2)
large amounts were subscribed by the in vesting
public in the shares of some of these companies ;
(3)
there have been gross irregularities (which may
in -several respects and materials amount to illegalities)
in the management of such companies including
manipulation of the accounts and unjustified transfers
and use of funds and assets ;
(4) the mo.PJ.eys subscribed by the investing public
were in a considerable measure used not in the interests
of the companies concerned b.ut contrary to their
interest and for the ultimate personal benefit of those
in control and/or management; and
,
(5) the investing public have as a result suffered
considerable losses .
•
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,_
.....
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S.C.R.
SUPREME COURT REPORTS
285
And Whereas the Central Government i;'l of the
r
953
opinion that there should ~ea full. in9uiry into these Sim Ram Krishna
matters which are of defimte public importance both
JJalmi?t
by reason of the gr~ve c~nsequen?es which appear t~
v.
have ensued to the mvestmg pubhc and also to deterSlwi Ju;tice
mine such measures as may be deemed necessary in s. R. Tendolkar
th
f
&M~
order to prevent a recurrence
ereo ;
• Now, therefore, in exercise of the powers conferred
Das c. J.
by section 3 of the Commissions of Inquiry Act (No. 60
of 1952), the Central Government hereby appoints a
Commission of Inquiry consisting of the following
persons, namely:
Shri Justice S. R. Tendolkar, Judge of the High
Court at Bombay, Chairman.
Shri N. R. Modi of Messrs A. F. Ferguson&. Co.,
Chartered Accountants, Member.
Sliri S. C. Chaudhuri, Commissioner of Income-tax,
Member.
·
1. The Commission shall inquire into and report on
and in respect of:
(1)
The administratioil of the affairs of the companies specified in the schedule hereto;
(2) The administration of the affairs of such other
companies and firms as the Commission may during
the course of its enquiry find to be companies or firms
connected with the companies referred to in the
schedule and whose. affairs ought to be investigated
and inquired into in connection with or arising out of
the inquiry into the affairs of the companies specified
in the schedule hereto ;
(3)
The nature and extent of the control, direct
and indirect, exercised over such companies and firms
or any of them by the aforesaid Sarvashri Ram
Krishna Dalmia, Jaidayal Dalmia, Shanti Prasad Jain,
Sriyans Prasad Jain, their relatives, '3mployees and
persons connected with them ;
•
(4)
The total amount of the subscription obtained
from the investing public and the amount subscribed
by the aforesaid persons and the extent to which the
funds and assets thus obtained or acquired were
misused, misapplied or misappropriated;
(5) The ex.tent and nature of the investments by
•
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•
286
SUPREME COURT REPORTS
[1959]
'958
and/or l~ans to and/or the use of the funds or assets
S" . R
K . h by and transfer of funds between the companies
1H·i
am
ris na •
•
~almia
aforesaid ;
v.
(6)
The· consequences or results of such invest>-
511,; Ju,ti"
ments, loans transfers and/or use of funds and assets;
s. R. Tendolkar
(7)
The reasons or motives of such investments,
&
01""'
loans transfers and use and whether there was any
Da' c. J.
justification for the same and whether the same were
made bona fide in the interests of the companies concerned ;
•
(8)
The extent of the losses suffered by the investing public, how far the losses wel'e avoidable and
what steps were taken by those in control and/or
management to avoid the losses;
(9)
The nature and extent, of the personal gains
made by any person or persons or any group or groups
of persons whether herein named or not by reason (ff or
through his or their connection with or control over
any such company or companies;
(10)
Any irregularities, frauds or breaches of trust
or action in disregard of honest commercial practices
or contravention of any law (except contraventions in
respect of which crimina) proceedings are pending in
a Court of Law) in respect of the companies and firms
whose affairs are investigated by the Commission
which may come to the knowledge of the Commission
and the action which in the opinion of the Commission should be taken (as and by way of securing
redress or punishment or) to act as a preventive in
future cases. ·
.
(ll) The measures which in the opinion of the
Commission are necessary in order to ensure in the
future the due and proper administration of the funds
and assets of companies and firms in the interests of
the in vesting p,μblic.
·
'
SCHEDULE
l. Dalmia Jain Airways Ltd.
.
2.
Dalmia Jain Aviation Ltd:, (now known as Asia
Udyog Ltd.)
3.
Lahore Electric Supply Company Ltd., (how
known as South Asia Industries Ltd.)
4. Sir Shapurji Broacha Mills Ltd .
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•
S.C.R.
SUPREME COURT REPORTS
287
5.
Madhowji Dharamsi Manufacturing Company
Ltd,
6.
Allen Berry and Co. Ltd.
7.
Bharat Union Agencies Ltd.
8.
Dalmia Cement and Paper Marketing Company
Ltd., (now known as Delhi Glass Works Ltd.)
9.
Vastra Vyavasaya Ltd.
• Ordered that the Order be published in the Gazette
of India for public information. (No. F. 107 (18INS/56) ).
•
H. M. Patel
Secretary.
It should be noted that the above notification did not
specify the time within which the Commission was to
complete the inquiry and make its report.
OQ January 9, 1957, the Central Government issued
another notification providing that all the provisions
of sub-ss. (2), (3), (4), and (5) of s. 5 should apply to
the Commission. As the notification of December 11,
1956, did not specify the time within which the
Commission was to make its report, the Central
Government on February 11, 1957, issued a third
notification specifying two years from that date as
the time within which the Commission of Inqui'ry
should exercise the functions conferred on it and make
its report.
On February 12, 1957, three several
Miscellaneous Applications were filed under art. 226 of
the Constitution questioning the validity of the Act
and the notification dated December 11, 1956, on
diverse grounds and praying for a writ or order for
quashing the same.
,
It will be convenient to advert to a few minor objections urged before us on behalf of the petitioners in
support of their appeals before we come to deal with
their ·principal and major contentioQs. The first
· objection is that the notification has gone beyond the
Act. It is pointed out that the Act, by s. 3, empowers
the appropriate Government in certain eventualities
to a.epoint a Commission of Inquiry for the purpose
of making an inquiry into any definite matter ot
public importance and for IiO other purpose.
The
contention is that the conduct of an individual person
•
•
Shri Ram Krishna
Dalmia
v.
S hri ] uslice
S. R. Tendolkar
& Others
Das C. ].
•
288
SUPREME COUET REPOETS
[1959]
or company cannot possibly be a matter of public
SI . R
1, . 1 importance and far less a definite matter of that kind .
. ri
am
)._ris ina W
bl
.
Dalmia
e are una e to accept this argument as correct.
..
v.
'Videspread floods, famine and pestilence may quite
Shi Justfr•
easily be a definite matter of public importance
s. R. Tendolkar urgently calling for an inquiry so as to enable the
& oihers
Government to take appropriate steps to prevent their
Das C. ].
recurrence in future. The conduct of villagers il'l
cutting the bunds for taking water to their fields
during the dry season may c~se floods during the
rainy season and we can see no reason why such
unsocial conduct of villagers of certain villages thus
ca using floods should not be regarded as a definite
matter of public importance. The failure of a big bank
resulting in the loss of the life savings of a multitude
of men of moderate means is certainly a definite matter
of public importance but the conduct of the pefsons
in charge and management of such a bank which
brought about its collapse is equally a definite matter
of public importance. Widespread dacoities in particular parts of the country is, no doubt, a definite
matter of public importance but we see no reason why
the conduct, activities and modus operandi of particular dacoits and thugs notorious for their cruel depredations should not be regarded as definite matters of
public importance urgently requiring a sifting inquiry.
It is needless to multiply instances. In each case the
question is : is there a definite matter of public importance which calls for an inquiry? We see no warrant
for the proposition that a defiuite matter of public
importance must necessarily mean ouly some matter involving the public benefit or advantage in the abstract,
e.g., public health, sanitation or the like or some public
evil or prejudice, e. g., floods, famine or pestilence or
the like.
Quite conceivably the conduct of an individual person• or company or a group of individual
persons or companies may assume such a dangerous
proportion and may so prejudicially affect or threaten
to affect the public well-being as to make such conduct a definite matter of public importance urgently
calling for a full inquiry. Besides, s. 3 itself authorises
the appropriate Governmen,t to appoW a Commission
•
•
•
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. ...._
...
S.C.R;
SUPREME COURT REPORTS
289
of Inquiry not only for the purpose of making an
r958
inquiry into a definite matter of public importance but h .
-
.
also for the purpose of performing such functions as 5 " 1;;7 1!-rishna
may be specified in the notification. Therefore, the
av~"'
notification is well within the powers conferred on the
Skri Ju;tice
appropriate Government by s. 3 of the Act and it can- s. R. Tendolkar
not be questioned on the ground of its going beyond
& Olhm
the provisions of the Act.
Learned counsel for the petitioners immediately
J:las c. f.
replies that in the e'7-ent of its being held that the
notification is within the terms of the Act, the Act
itself is ultra vires the Constitution. The validity of
the Act is called in question in two ways. In the first
place it is said that it was beyond the legislative competency of Parliament to enact a law conferring such
a wide sweep of powers. It is pointed out that Parliament enacted . the Act in exercise of the legislative
powers conferred on. it by Art> 246 of the Constitution
read with entry 94 in List I and entry 45 in List III of
the Seventh Schedule to the Constitution. The matters
enumerated in entry 94 in List I, omitting the words
not necessary for our purpose, are " inquiries ......... for
the purpose of any of the matters in this ·List '', and
those enumerated in entry 45 in List III, again omitting the unnecessary words, are " inquiries ............ for.
the purposes of any of the matters specified in Lis_t II
qr List III. "
Confining himself to the entries in so
far as they relate to " inquiries ", learned counsel for
the petitioners urges that Parliament may make a law
with r.espect to inquiries but cannot under these entries
make a law. conferring any power to perform any
function other than the power to hold an inquiry. He
qoncedes that, according to the well recognised rule of
construction of the provisions of a Constitution, the
legislative heads should be construed very liberally.
and that it mμst be assufued th::i,t tht3 Constitution
iμtended to give ~o the appropriate legislature not only
the power to legislate- with respect to the_ particular,
legislative topic but also with respect to all matters
ancillary thereto. Indeed the v~ry use of the 'Y<?rds
"":'ith·r,espect to"· in Art.,246 supports this principle
. '
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I958
of liberal interpretation. He, however, points out that
Sh . R--. .
the law, which the appropriate legislature is em-
"
am Rmhna
d
k
d
h
·
b
· h
·
Dal..lia
powere
to ma e un er t ese entries must
e wit
•
v.
respect to inquiries for the purposes of any of the
Shri Justice
matters in the relevant lists and it is urged that the
s. R. Tendolkar words "for the purpose of" make it abundantly clear
e;. Othm
that the law with respect to inquiries to be made under
these two entries must be for the purpose of future
Das c. J.
legislation with respect to any of the legislative heads
in the .relevant lists. In other words, the argument is
that under these two entries the appropriate legislature may make a law authorising the constitution of
a Board or Commission of Inquiry to inquire into and
ascertain facts so as to enable such legislature to
undertake legislation with respect to any of the legislative topics in the relevant lists to secure s~me pl]blic
benefit or advantage or to prevent some evil or harm
befalling the public and thereby to protect the public
from the same. But if an inquiry becomes necessary
for, say, administrative purposes, a law with respect
to such an inquiry cannot be made under these two
entries. And far less can a law be made with respect
to an inquiry into any wrongs alleged to have been
committed by an individual person or company or a
group of them for the purpose of punishing the suspected delinquent. This argument has found favour
with the High Court, but we are, with great respect,
unable to accept this view.
To adopt this view will
mean adding words to the two entries so as to read
"inquiries ......... for the purpose of future legislation
with respect to any of the matters in ......... " the List
or Lists mentioned therein. The matter, however, does
not rest here. A careful perusal of the language used
in entry 45 in List III does, in our view, clinch the
/i
matter. Entry 45 in List II~, which is the Concurrent
List, speaks, mter alia, of " inquiries ............ for the
purpose of any of the matters in List II or List III.
Under Art. 246 read with this •entry, Parliament as
"
well as the Legislature of a State may make a law
with respect to " inquiries for the purpose of any of the
matters in List IL" Parliament, under Art. 246, has
no power to make a law with respect to any of the
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...
,.
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SUPREME COURT REPORTS
291
matters enumerated in J.,ist II. · Therefore, when
x958
Parliament makes a law under Art. 246 read with Shri Ram Krishn"
entry 45 in List III with respect to an inquiry for the
Dalmia
purposes of any of the matters in List II, such law
v .•
can never be one for inquiry for the purpose of future
Shri Justice
legislation by Parlia.ment with respect to any of s. R. Tendolkar
those matters in List II. Clearly Parliament can make
Q;. Othdfs
a. law for inquiry for the purpose of any of the
Das c. J.
matters in List II and none.the less so though Parliament cannot legislatti with respect to such matters
and though none of the State Legislatures wants to
Legislate on such matters. In our opinion, therefore,
the law to be made by the appropriate legislature with ·
respect to the two legislative entries referred to above
may cover inquiries into any aspect of the matters
enumerated in any. of the lists mentioned therein and
is n~t confined to those matters as mere heads of legislative topic. Quite conceivably the law with respect
to inquiries for the purpose of any of the matters in
the lists may also be for administrative purposes and
the scope of the inquiry under such a law will cover
all matters which may properly be regarded as ancillary to such inquiries. The words " for the purposes
of" indicate that the scope of the inquiry is not
necessarily limited to the particular or specific matt'ers
enumerated in any of the entries in the list concerned
but may extend to inquiries into collateral matters
which may be necessary for the purpose, legislative or
otherwise, of those particular matters. We are unable,
therefore, to hold -that the inquiry which may be set
up by a law made under these two entries is, in its
scope or ambit, limited to future legislative purpases
only.
Learned counsel then takes us through the different
heads of inquiry enumerated in the notification and
urges that the inquiry is neither for .any legislative
nor for any administrative purpose, but is a clear
usurpation of the functions of the judiciary. The
argument is that l?arliam9nt in authorising the
appQintment of a Commission and the Government in
appointing this Commission have arrogated t_o themselves judicial.powers which do not, in tlie very nature
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[1959]
r95B
of thing~, beiong to their respective domains w;hic'h
Sh . R
K . 1 must be purely legislative and executive respect1vely.
" n",;;'m;;'"""It is contended that Parliament cannot convert itself
v.
into a court except for the rare cases of dealing with
Shri Justice
breaches of its own privileges for which it may punish
s. R. Tendolkar the delinquent by committal for contempt or of proceed-
& Othm
ings by way of impeachment. It cannot, it is urged,
undertake to inquire or investigate into alleged indivi·
Das C. ].
•
dual wrongs or private disputes nor can it bring the
supposed culprit to book or gather materials for the,
purpose of initiating proceedings, civil or criminal,
against him, because such inquiry or investigation is
·clearly not in aid of legislation. It is argued that if a
criminal prosecution is to be launched, the preliminary
investigation must be held under the Code of Criminal
Procedure and it should not be open to any legislature
to start investigation on its own and thereby- to
deprive the citizen of the normal protection afforded to him by the provi8ions of the Code of Criminal Procedure.
This line of reasoning also found
favour with the
High Court which, after considering the provisions of the Act and the eleven
heads of inquiry enumerated in the notification,
came to the conclusion that the last portion of
cl.
0(10) beginning with the words "and the action"
and ending with the words " in future cases " were
ultra vires the Act and that the Government was not
competent to require the Commission to hold any ·
inquiry or make any report with regard to the matters
covered by that portion of cl. (10), for such inquiry or
report amounts to a 1,1surpation of the judicial powers
of ~he Union or the State as the case may be .
While we find ourselves in partial agreement with
the actual conclusion of the High Court on this point,
we are, with great respect, unable to accept the line of
reasoning ad VMJ.ced by learned counsel for the peti.
tioners, which has been accepted by the High Court
· for more reasons than one. In tpe first place neither
Parliament nor the Government has itself undertaken
any inquiry at all.
Parliament has made a law with
respect .to inquiry and has left it to the appropriate
Government to set up a Commission of Inquiry under
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, "
I
.........
S.C.R.
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293
eertain circumstances referred to in s. 3 of the Act.
I958
The Central Government, in its . turn, has, in exercise
-
. .
of the. powers conferred on it by the Act, set up this Shri Ram f!rishna
Commission. It is, therefore, not correct to say that
Da~·~
Parliament or the Government itself has undertaken
shri Justice
to hold any inquiry. In the second place the cons. R. Tendolkar
clusion that the last portion of cl. (10) is bad
<1;- Others
because it signifies that Parliament or the Government
had usurped the functions of the judiciary appears to
Das c. J.
us, with respect, to be inconsistent with the conclusion
arrived at in a later part of the judgment that as the
Commission can only make recommendations which
are .not enforceable proprio vigore there can be no
question of usurpation of judicial functions.
As has
been stated by the High Court itself in the latter part
of its judgment, the only power that the Commission
has .is to inquire and make a report and embody therein its recommendations.
The Commission has no
power of adjudication in the sense of passing an order
which can be enforced proprio vigore.
A clear distinction must, on the authorities, be drawn between a
decision which, by itself, has no force and no penal
effect and a decision which becomes enforceable
immediately or which may become enforceable by
some action being taken. Therefore, as the Commission we are concerned with is merely to investigate
and record its findings and recommendations without
having any power to enforce them, the inquiry or
report cannot be looked upon as a judicial inquiry in
the sense of its being an exercise of judicial function
properly so called and consequently the question of
usurpation by Parliament or the Government of .the
powers of the judicial organs of the Union of India
cannot arise on the facts of this case and the elaborate
discussion of the American authorities founded on the
categorical separation of powers expre840ly provided by
and under the American Constitution appears to us,
with respect, wholl:y inappropriate and unnecessary
and we do not feel called upon, on the present occasion., to express any opinion on the question whether
even in the absence of a specific provision for separation of power~ in our Constitution, such as there is
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1958
under the American Constitution, some such di·dsion
h . R-K . h of powers-legislative,
executive and judicial-is,
5 "
am
'" na
h 1
·
l' · ·
C
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·
I
h
·
Dt1lmi•
nevert e ess imp ic1t m our onstitut10n.
n t e view
•
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we have taken it is also not necessary for us to
Sh» Juslice
consider whether, had the Act conferred on the ·appros. R. Tendolkar priate Government power to set up a Commission of
&- oihm
Inquiry with judicial powers, such law could not,
subject, of course, to the other provisions of the Con.
Das C. ].
b
d
stitution,
e supporte
as a law made under some
entry in List I or List III authol'ising the setting up
of courts read with these two entries, for a legislation
may well be founded on several entries.
Learned Counsel appearing for the petitioners, who
are appellants in Civil Appeals Nos. 456 and 457 of
1957, goes as far as to say that while the Commission
may find facts on which the Government may take
action, legislative or executive, although he does- not
concede the latter kind of action to be contemplated, .
the Commission cannot be asked to suggest any
measure, legislative or executive, to be taken by the
appropriate Government. We are unable to accept
the proposition so widely enunciated. -An inquiry
necessarily involves investigation into facts and
necessitates the collection of material facts from the
ev{dence adduced before or brought to the notice of
the person or body conducting the inquiry and the
recording of its findings on those facts in its report
cannot but be regarded as ancillary to the inquiry
itself, for the inquiry becomes useless unless the
findings of the inquiring body are made available
to the Government which set up the inquiry. It
is, •in our judgment, equally ancillary that the person or body conducting the inquiry should express its own view on the facts found by it for the
consideration of the appropriate Government in order
to enable it tlil take such measure as it may think fit
to do.
The whole purpose of setting up of a Commission of Inquiry consisting • of experts will be
frustrated and the elaborate process of inquiry will be
deprived of its utility if the opinion and the ad vice of
the expert body as to the measures the situation disclosed calls for cannot be placed before t~e Government
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295
for consideration notwithstanding
th.at doing so
x95B
· cannot be to the prejudice of anybody because it has Shri Rom Krishna
no force of its own. In our view the recommendations
Dolmi~
of a Commission of Inquiry are of great imp9rtance to
•·
the Government iR order to enable it to make up its
Shri Jusliee
mind as to what legislative _or administrative measures 5· R. TJndo:har
.S. Others
should be adopted to eradicate the evil found or to
implement the beneficial objects it has in view. From
Dos c. J.
this point of view, tpere can be no objection even to
the Commission of Inquiry recommending the imposition of some form of punishment which will, in its
opinion, be sufficiently deterrent to delinquents in
future. But seeing that the Commission of Inquiry has
no judicial powers and its report will purely be recommendatory and not effective proprio vigore and the
stat~ment made by any person before the Commission
of Inquiry is, under s. 6 of the Act, wholly inadmissible in evidence in any future proceedings, civil or
criminal,. there can be no point in the Commission of
Inquiry making recommendations for taking any
action " as and by way of securing redress or punishment" which, in agreement with the High Court, we
think, refers, in the context, to wrongs already done or
committed, for redress or punishment for such wrongs,
if any, has to be impose.cl by a court of law properly
constituted exercising its own discretion on the facts
and -eircumstances, of the case and without being in
any way influenced by the view of any person or body,
howsoever august or high powered it may be. Having
regard to all these considerations it appears to us that·
only that portion of the last part of cl. (10) which calls
upon the Commission of Inquiry to niake recommendations about the action to be taken " as and by way of
securing redress or punishment ", cannot be said to be
at all necessary for or ancillary to the purposes of the
Commission. In our view the words in the latter part
of the section, namely, "as and by way of securing
redress or punishment", clearly go outside the scope
of the Act and such provision is not covered by the
two legislative entries and should, therefore, be deleted.
So deleted the latter portion of cl. (10) would read-
" ii.nd the action which in the opinion of the Commission
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z958
should be taken .................................... to act as·a
Sh · R-K . h preventive in future cases ".
ri
am
ris na
.
.
l!almia
Delet10n of the words ment10ned above from cl. (10)
v.
raises the question of severability. We find ourselves
Shri Justi"
in substantial agreement with the reasons given by
s. R. Tendolk•r the High Court on this point and we hold that the
& Others
efficacy of the notification is in no way affected by the
deletion -of the offending words mentioned above and
Das C.