# \ STATE OF MADHYA•PRADESH v. AJAY SINGH AND ORS. ETC. NO\'.EMBER 2, 1992

- **Citation:** [1992] Supp. 2 S.C.R. 274
- **Court:** Supreme Court of India
- **Decided:** 1989-02-24
- **Case number:** Civil Appeal Nos. 4734-35 A of 1992
- **Bench:** J.S. Verma, S.P. Bharucha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-madhya-pradesh-v-ajay-singh-and-ors-etc-no-ember-2-1992-11808
- **Pages:** 31

## Headnote

Commissions of Enquiry Act, 1952 :
Sections 3, 7 and 8-A-{)ne-man Commission-Replacement of the
C initial appointee with another person-Whether pennissib/e under the scherne
of the Act-Whether Section 21 of the General Clauses Act, 1897 could be
in raked to read such power into the Act.
D
E
General Clauses Act, 1897:
Section 2 I-Pott1er to add to an1end or vary: or rescind any notification--JV!ietht;r cuuld be invoked to reconstitute the C.:on11nission of Inquiry by
rcpiacemelll of substituiio.'z of tlze existin!i members, though not provided in
the scheme of lhe Act.
Pursuant to the direction given by the State High Court, the appellant-State by a Notification dated 24.2.1989, constituted a Commission of
Inquiry under the Commission of Inquiry Act, 1952, to investigate into the
affairs of the Children's Welfare Society, of which Respondent No.l was
an office bearer and appointed a sitting Judge of the High Court of
another State as the sole member of the Commission. The inquiry w.ts to
F
be completed within a period of six months, but the period was extended
from time to time. Meanwhilr, the sole member became due to retire as a
Judge of the High <.:ourt on attaining the age of superannuation and,
therefore, he wrote a letter dated 193.1991 to the Chief Secretary of the
appellant-State drawing attention to this fact and requesting that the
necessary modalities be worked out well in time for his continuance as
G Commission of Inquiry, in the light of the guidelines issued by the Government of India for the benefits and emoluments payable to a Judge on his
retirement in such a situation. The Judge also mentioned some of the
facilities he expected, to which he would not be entitled fron1 the State
Government on his retirement. The Chief Secretary sent a reply dated
H 9.4.1991 to the Judge promising to give an early reply and requesting him
274
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STATE OF M.P. v. AJAY SINGH
275
to continue with the inquiry so that the same could be completed early. A
However, without further rererence to the Judge, the State Government
issued a notification dated 10.7.1991, replacing him by a retired Chier
Justice of another High Court. This appointment was challenged before
the High Court, which, by an interim order dated 30.7.1991 stayed the
operation or the notification. During the pendency of the writ petition, the
new member tendered his resignation. Consequently, the High Court dismissed the writ petition as infructuous on S.9.1991. Thereafter, the Chief
Secretary to the Government sent a letter dated 12.9.1991 to the original
appointee expressing the State Government's inability to accept the terms
and conditions of the Judge, and informing him of the appointment of
retired Chief Justice or another High Court, who had since resigned.
Thereafter the State Government issued another notification dated
9.l.1992 appointing a retired Judge or another High Court as a single
member of the Commission. This was challenged before the High Court
B
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on the ground that during the continuance as the single member of the D
Commission of Inquiry of the original appointee, there was no power in
the State Government to replace him, and there being no vacancy in the
office, the power under Section 3(3) or the Commissions of Inquiry Act,
1952, which was available only to fill any vacency, could not be invoked
and there was no other source or power •vailable to the State for the
purpose and, therefore, the appointment first or the retired Chier Justice E
and then, on his refusal, of another retired Judge, being without any
authority, was invalid.
The High Court allowed the·writ petitions and quashed the notifica·
tion dated 9.l.1992. It held that there was no vacancy in the office of' the
F
single member of the Commission to empo\l·er the State fiovernment to
fill the vacancy under Section 3(3) of the Commissions of Inquiry Act. It
also held there was neither any valid reason or ground nor any power
available in the State Government to replace the original me

## Text

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;\
STATE OF MADHYA•PRADESH
v.
AJAY SINGH AND ORS. ETC.
NO\'.EMBER 2, 1992
B
[J.S. VERMA AND S.P. BHARUCHA, JJ.]
Commissions of Enquiry Act, 1952 :
Sections 3, 7 and 8-A-{)ne-man Commission-Replacement of the
C initial appointee with another person-Whether pennissib/e under the scherne
of the Act-Whether Section 21 of the General Clauses Act, 1897 could be
in raked to read such power into the Act.
D
E
General Clauses Act, 1897:
Section 2 I-Pott1er to add to an1end or vary: or rescind any notification--JV!ietht;r cuuld be invoked to reconstitute the C.:on11nission of Inquiry by
rcpiacemelll of substituiio.'z of tlze existin!i members, though not provided in
the scheme of lhe Act.
Pursuant to the direction given by the State High Court, the appellant-State by a Notification dated 24.2.1989, constituted a Commission of
Inquiry under the Commission of Inquiry Act, 1952, to investigate into the
affairs of the Children's Welfare Society, of which Respondent No.l was
an office bearer and appointed a sitting Judge of the High Court of
another State as the sole member of the Commission. The inquiry w.ts to
F
be completed within a period of six months, but the period was extended
from time to time. Meanwhilr, the sole member became due to retire as a
Judge of the High <.:ourt on attaining the age of superannuation and,
therefore, he wrote a letter dated 193.1991 to the Chief Secretary of the
appellant-State drawing attention to this fact and requesting that the
necessary modalities be worked out well in time for his continuance as
G Commission of Inquiry, in the light of the guidelines issued by the Government of India for the benefits and emoluments payable to a Judge on his
retirement in such a situation. The Judge also mentioned some of the
facilities he expected, to which he would not be entitled fron1 the State
Government on his retirement. The Chief Secretary sent a reply dated
H 9.4.1991 to the Judge promising to give an early reply and requesting him
274
'
STATE OF M.P. v. AJAY SINGH
275
to continue with the inquiry so that the same could be completed early. A
However, without further rererence to the Judge, the State Government
issued a notification dated 10.7.1991, replacing him by a retired Chier
Justice of another High Court. This appointment was challenged before
the High Court, which, by an interim order dated 30.7.1991 stayed the
operation or the notification. During the pendency of the writ petition, the
new member tendered his resignation. Consequently, the High Court dismissed the writ petition as infructuous on S.9.1991. Thereafter, the Chief
Secretary to the Government sent a letter dated 12.9.1991 to the original
appointee expressing the State Government's inability to accept the terms
and conditions of the Judge, and informing him of the appointment of
retired Chief Justice or another High Court, who had since resigned.
Thereafter the State Government issued another notification dated
9.l.1992 appointing a retired Judge or another High Court as a single
member of the Commission. This was challenged before the High Court
B
c
on the ground that during the continuance as the single member of the D
Commission of Inquiry of the original appointee, there was no power in
the State Government to replace him, and there being no vacancy in the
office, the power under Section 3(3) or the Commissions of Inquiry Act,
1952, which was available only to fill any vacency, could not be invoked
and there was no other source or power •vailable to the State for the
purpose and, therefore, the appointment first or the retired Chier Justice E
and then, on his refusal, of another retired Judge, being without any
authority, was invalid.
The High Court allowed the·writ petitions and quashed the notifica·
tion dated 9.l.1992. It held that there was no vacancy in the office of' the
F
single member of the Commission to empo\l·er the State fiovernment to
fill the vacancy under Section 3(3) of the Commissions of Inquiry Act. It
also held there was neither any valid reason or ground nor any power
available in the State Government to replace the original member by
another person as was purported to be done by first appointing one
member
Judges.
and then another member, both of whom were also retired
In the appeals, by special leave, on behalf of the State Government,
G
it was contended that aid of Section 21 of the General Clauses Act was
available to the State Government for exercising its po\\-·ers under the
H
27()
Sl'l'RH!I· COURT Rl·.l'ORTS \ l'!'l2J SUPP. 2 S.C'.R.
A
Commis!:tlflns of Inquiry Act •to add, to a1nend or vaf}·' the notification
issued initially appointing thl' sitting .Judge as the sole member of the
Cornmission \Vhich enabled the State (;overnn1ent to reconstitute the
Commission by replacing that .Judge with any other person in the circumstances of the case, though the power to rescind any notification \\'as
B
not available, since this ~as provided in Section 7 of the Commissions of
Inquiry Act. Reference was also made to Section 8-A of the Lommissions
of' Inquiry Act to support the contention that Government's power to
reconstitute the Commission even during the availability of the person so
appointed, even though it wa,; submitted that Section 8-A was not the
source of power for reconstitution of the Commission. It was also conC tended that the Government's power to extend the time specified in the
initial notification for completing the work of the Commission was not to
be found in any express provision in the Commissions of Inquiry Act, but
was exercised by an1endment of the initial notification only under Section
21 of' the General Clauses Act. and that though there was no express
D
provision in the Commissions of lnquiry Act empowering the Government
to replace or substitute the sole member of a Commission with another
person during the continuance of the Commission, this was implicit in the
power to appoint a Commission and designate its personnel under Subsections (I) and (2) of Section 3 of the Commissions of Inquiry Act read
\\'ith the power to amend or vary any notification available under Section
E
21 of the General Clauses Act.
F
It "'as submitted on hehall' of the petitioner in the Public Interest
Petition thitt Sections J 4 and 16 of the lieneral Clauses Act were also
availahll' to support. the notifications under challense issued by the State
Government.
On behalf uf respondent No.1 it was submitted that the scheme of
the Con1missions of Inc1uiry A.ct did not permit invoking Section 21 of the
(~eneral Clauses ,Ac1. except for enlargement of the period for completion
of the in<1uiry by amendment of the notification only to that extent since
G the only situations in which reconstitution of the Commissions could be
made were provided in the Commissions of Inquiry Act itself, that Section
8-A of the Cornmissions of Inquiry Act was enacted for an entirely, different purpose, namely, to ensure continuity of the Commission's work
and had nothing to do "ith its reconstitution, that the scheme of the
H enactment showed that the appropriate Government could not interfere
STATE OF M.P. v. A.JAY SINGH
277
with the working of the Comniission after ils constitution except in the
A
manner expressly provided in the Act and Section 7 \Vas a clear indication
that interference with the functioning of the Co1n1nission \Vas not per~nis·
sihle in any other rnanner, and, thereforei Section 21 of the (;eneral
Clauses Act was not available to support the Government's action in the
instant case.
Dis1nissing the appeal, this Court,
HELO: I. The power under Section 3(3) of the Commissions or
Inquiry Act, 1952, was not available to the State Government in the facts
B
of the instant case to appoint any other person replacing the uriginal C
nternber as the sole member of the Commission of Inquiry. The power
under sub-sections (I) or (2) of Section 3 read with Section 21 or the
General Clauses Act or even Section 14 or Section 16 thereof was also not
available for the purpose. Accordingly, the notiticatious dated 10.7.1991
and 9.1.1992 issued by the State Government appointing the retireil Chief
Justice and another retired Judge were both invalid. The High Court was, D
therefore, right in c1uashing the notifications dated 10.7.1991 and 9.1.1992.
The appellant-State should, in view of th.e retire1nent of the original
member as a Judge of the High Court in the meanwhile, take necessary
action to finalise his tern1s and conditions in accordance with the
guidelines issued by the Govern111ent of India in this behalf. Such action E
should be taken promptly to avoid any undue deJay in completion of the
Commission's task. [304-C-F]
2.1. The power of the Government to appoint a Commission of
Inquiry and name the person or persons constituting it is in sub-section
(1) of Section 3 and is not an exercise divided between sub-sections (l) and F
(2) of Section 3. It is not as if sub-section (1) deals with the mere
appointment of a Commission of fnqui~· "ithout. clothing it with its
personnel and the power to appoint the 1nemher/members thereof is to be
found only in sub- section (2). That apart, there is nothing in any of these
provisions to suggest that the Government has the power to reconstitute G
the t::om1nission after its appointment hy replacing the existing sole member with another person. Sub-section (3) of Section 3, inserted by the
A_mendtnent Act of 1971, deals expressly with the Governn1cnt's power to
fill any vacancy which n1ay have arisen since the constitution of the
(~on1mission. The question of replacement of a member appointed initially
is beyond its scope. The insertion of suh-section (3) becan1e necessary to H
278
SUPRL'MF COURT Rl'l'ORTS 11992] SUPP. 2 S.C.R.
A
provide exprt'ssly in the statute for the (;overnrnent's power to fill any
vacancy after the initial constitution" After its insertion, the scheme of the
enactrnent excludes the power of reconstitution of the Co1nmission in a
n1anner not expressly provided therein. In view of sub-section (3), it is not
permissible to construe sub-sections (1) and (2) of Section 3 in any other
B
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manner. If the schen1e of the enactment gave such wide power to
reconstitute a Commission after it~ initial constitution and permitted
replacement or substitution of tthe existing member of a Commission with
another person sans sub-section (3) of Section 3, the power to fill any
vacancy was not required to be provided separately and expressly. It is
also significant that in the amendment so made the power is limited only
to filling any vacancy without conferring any power to reconstitute the
Commission by replacement or substitution of the existing member \\'hich
indicat.es that no such power of replacement or substitution of the existing
member was contemplated in the scheme of the Act or intended to be
conferred on the Govern1111:ut even after the amendment.
[298-H: 299-A-C; 300-A]
2.2. Section 8-A was simultaneously inserted by amendment to provide that the procedure docs uot require interruption of the inquiry by
reason of change in the constitution of the Commission due to filling any
vaca1u.·y or decrease in the nun1ber of members. The expression 'or by any
other reason' in sub~section (2) of Section S·A cannot be widened to
include the reason of reconstitution of the Comn1ission by replacement or
substitution of the existing men1ber since that power is not available to the
Government in the scherne of the Act and, therefore. this expression in
Section 8·A(2) cannot be read as conferring any additional power or giving
F
any such indication. The expression 'or by an)' other reason' following
'vacancy having been filled' in Section 8·A(2) n1ust, therefore, mean any
other reason, such as decrease in the number of members, when the initial
number is more than one, and the vacancy remains unfilled. It cannot
mean substitution of the existing member with another person, since no
such power exists. Section 8·A(2) is not the source of an additional power,
G but merely an indication of the power to reconstitute the Commission. The
indication is of the power of reconstitution being available only in the
111anner indicated. l'he only situation in which the Govern1nent can re·
scind the notification issued under Section 3 constituting the Commission
is laid down in Section 7 of the Aft. which provides that the Commission
H would re<1se to exist when the appropriate (;overnrncnt by notificatir
STATE OF M.P. 1·. AJAY SINGH
279
declares that 'the continued existence of the Co1nn1ission is unnecessar)"'.
A
2.3. The scheme of the enactlnent is that the appropriate (;overnment should have no control over the Commission atler its constitution
under Section 3 of the Act except for the purpose of filling any vacancy
which may have arisen in the office of a member of the Co1nmission apart
from winding up the Commission by issuance of a notification under
Section 7 of the Act if the continued existence of the Commission is
considered unnecessary. The vacancy in the office of a member of the
Commission may arise for several reasons, including resignation hy the
member, when the Governn1e11t's power to till the vacancy under Section
B
3(3) of the Act can be exercised. [300-A-E & GI
C
2.4. The context as well as the scheme of the Commissions or Inquiry
Act, 1952 clearly indicate that Section 21 of the General Clauses Act, 1897
cannot be invoked to enlarge the Governn1ent's power to reconstitute the
Commission constituted under Section 3 of the Act in a n1anner other that D
that expressly provided in the Commissions of lm1uiry Act. There being
no express power given by the Commissions of Inquiry Act to the ap·
propriate c;uvernment to reconstitute the Cornmission of Inquiry constituted under Section 3 of the Act by replacement or substitution of its
sole 1ne1nber and the existence of any such po"''er being negatived by clear
implication, no such power can be exercised by the appropriate Go\'ernE
men!. [302-C-F]
2.5. Section 21 of the General Clauses Act can be invoked only if, and
to the extent, if any. the context and the sche1ne of the Con1missions of
Inquiry Act so permits. The general power in Section 21 of the General
F
Clauses Act is 'to add, to an1end, vary or rescind any notifications' etc. In
the context of reconstitution of the f:ommission, the power to fiU any
vacancy in the office of a manner of the Co1nmission is expressly provided
in sub-section (3) of Section 3 or the Commissions oflriquiry Act. Similar·
ly, the power to discontinue the existence of the Commission when it
becomes unnecessary can be exercised by issue of a notification in accord- G
ance with Section 7 of the Act which results in rescinding the notification
issued under Section 3 constituting the Con1mission. Thus, the power to
rescind any notification conferred generally in Section 21 of the f':-reneral
Clauses Act is clearly inapplicable in the scheme of the Commissions of
Inquiry Act which expressly provides for the exercise of this power in H
280
Slll'HEME COURT REPORTS p992J SUPP. 2 S.C.R.
A
relation to Commission constituted under Section 3 of the Act. The only
other material general powers in Section 21 of the General Clauses Act are
the power to •amend' or 'vary' any notification. The extent to which the
constitution of the <:ommission can be a1nended or varitid by filling any
vacancy in the oflice of a men1ber as provided in the Cornmissions of
B Inquiry Act is also obviously excluded from the purview of Section 21 of
the General Clauses Art which cannot be inv~ked for this purpose. In a
case like the instant one, where the scheme of the Commissions of Inquiry
Act does provide for amendment and variation of the notification issued
under Section 3 for the purpose of reconstitution of the Commission in
the manner indicated, even thal power to amend or vary any notification
C
by virtue of Section 21 of' the General Clauses Act must be taken as
exdudrd by clear implication in the sphere of reconstitution of the Commission. J\..1oreover, the power to amend or vary cannot include the power
to replace or substitute the existing <'.omposifion of the Commission with
an entirely new composition. The aid of Section 21 of the General Clauses
D Act for enlargement of time does not conflil't w·ith the context or scheme
of the Commissions oflnquiry Act. [301-A-E]
2.6. The rule of construction embodied iu Section 21 of the General
Clauses Act cannot apply to the pl'ovisions of the Commissions of Inquiry
Act; 1952 relating to reconstitution of a Conunis.sion ronstituted thereE
under since the subjcctM1nattrr, context and etl~cl of such provisions are
inconsistent With such appli<·a1ion. Moreover, this construction best harmonises with the subjel'1 of the enactment and lhe object of the legislation.
Restoring public confidence by Constituting a Commission of Inquiry to
investigate into a 'definite n1atter of public importance' is the. purpose of
F
such an exerrise. It is, therefore, the prime need that the Co1n1nission
funrtions as an indrpendent agency free frcun any govern-n1ental control
after its constitution. II follows that after appointment, the tenure of
members of the ccnnmission should not be dependent on the will of the
(J-overnment to secure tht'.ir independence. A body not so independent is
not likely to enjoy the requisite public confidence and may not attract men
G of quality and self-respect. In such a situation, the object of the enactment
would be frustrated. [302-H; 303-A-C]
Mi.wn,a Mills Ltd. v. Their Workers, [1954] S.C.R. 465, distinguished.
H
The Stale of Biharv.D.N. Ga11f<1tlv& Ors., 11959] S.C.R. ll91.relied on.
•
STATE OF M.P. v. AJAY SINGH [VERMA, .1.]
281
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4734-35 A
of 1992.
From the Judgment and Order dated 8.5.1992 of the Madhya
Pradesh High Court in Misc. Petition Nos. 481 and 533 of 1992.
Shanti Bhushan, N.C. Jain, S.K. Agnihotri and Ashok K. Singh for
B
the Appellant.
Kapil Sibal, N.S. Kale, A.P. Dhamija, S.K. Jain, Manmohan, S.
Atreya, Pradcep Agarwal, Basant Bhai Mehta, Ravindra Srivastava, R.N.
Srivastava, B.Y. Desai and S.V. Deshpande for the Respondents.
The Judgment of the Court was delivered by
VERMA, J. The petitioner Stale of Madhya Pradesh in both these
petitions seeks leave to appeal under Article 136 of the Constitution against
c
the common judgment and order dated 8.5.1992 of the High Court of Mad- D
hya Pradesh in Miscellaneous Petition Nos. 481of1992 and 533of1992 under
Article 226 of the Constitution. The High Court has allowed both these writ
petitions.
The material facts arc these. In Miscellaneous Petition No. 3909 of
1987 filed in public interest by Kailash Joshi, then Leader of the Opposition E
in Madhya Pradesh Yidhan Sabha and now a Cabinet Minister in Madhya
Pradesh, relating to the affairs of the Churhat Children's Welfare Society and
the lottery conducted by it, the M.P. High Court by its judgment dated
20.1.1989 issued a direction for setting up an independent high power agency
to hold an inquiry into the affairs of the said Society of which respondent No.
1 Ajay Singh was one of the office bearers. In compliance of that direction,
the State Government passed a resolution on 24.2.1989 and also issued
notification of the same date having the effect of setting up a Commission of
Inquiry consisting of Justice S.T. Ramalingam, a Judge of the Madras High
Court to investigate into the affairs of the said Society and the lottery
conducted by it. The resolution and notification are as under :-
"Bhopal, the 24th February, 1989
No. F. 1-3-89-J(i)-E.C. - Whereas the High Court of Madhya Pradesh in its order dated the 20th January 1989 in
F
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M.P. No. 3909/87 Kai/ash Joshi versus State of Madhya
H
282
A
B
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G
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Sl!i'Rl'ME COURT RFPQRTS IJ9'!2J SUPP. 2 S.C.R.
Pradesh and others has directed that an inquiry be made
by an independent high power agency into the affairs of
the Churhat Children's Welfare Society and how the share
of its profits derived from Jll or any other draws have been
utilized and to take such action as may be required under
the law against the said Society and its organizing agent
and that the Stale Government is of the view that the said
order of the High Court should be implemented and carried out and whereas the Stale Government is also satisfied
that this is a definite matter of public importance which
calls for an inquiry to be made, the State Government
hereby appoints an independent high power agency
presided over by Shri Justice S.T. Ramalingam, .Judge of
the Madras High Court.
2. The Headquarters of the Agency shall be at Jabalpur, Madhya Pradesh.
3. The terms of reference for inquiry by the aforesaid
Agency shall be as under:-
(1) How the affairs of the Churhat Children's Welfare Society are conducted and how the share of
the profit derived and the money collected
through lottery has been utilised ?
(2) What is the amount collected draw-\\ise, by the
agent and the Society and what is the tax liability
as per the Madhya Pradesh Lottery (Niyantran
Tatha Kar) Adhiniyam, 1973?
(3) Whether any irregularities, illegalities and offences were committed in organizing the lottery,
holding of draws oflottery, distribution of prizes,
and in thal event, the person responsible for the
same;
( 4) Any other matter incidental or connected with
the above subject-rnatter of enquiry.
(4) The Agency may complete its enquiry and submit
its report tu lhe State Government within a period of six
...
'
STATE OF M.P. 1·. AJAY SINGH [VJ,RM1\ J.[
months from the date of issue of this Notification.
By order and in the name of the
Governor of Madhya Pradesh,
283
R.C. Shri,,astava, Secy,''
"Bhopal, the 24th February, 1989
No. F.1-3-89-I(i) -E.C. - Whereas by Government of
Madhya Pradesh Resolution dated the 24th February 1989
and Notification No. F.1-3-89-I(i) -E.C., dated the 24th
February 1989 an independent High Power Agency
presided over by Shri S.T. Ramalingam, Judge of the
Madras High Court has been set up to hold an inquiry
into the affairs of the Churhat Children's Welfare Society;
And whereas the State Government having regard to
the nature of the inquiry to be made and other circumstances of the case is of the opinion that provisions contained
in sub-sections (2) to (5) of Section 5 of the Commissions
of Inquiry Act, 1952, should be made applicable to the
aforesaid Agency;
Now, therefore, in exercise of the powers conferred by
sub-section (1) of Section 5 of the Commissions of Inquiry
Act, 1952, the State Government hereby directs that the
provisions of sub-sections (2) to (5) of Section 5 of the
said Act shall apply to the above described Agency.
By order and in the name of the
Governor of Madhya Pradesh,
R.C. Shrivastava, Sec)'."
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According to the terms of the above notification, the inquiry was to G
be completed within a period of six months from the date of issue of the
notification. As the inquiry could not be completed within that period, by
a notification dated 1.8.1990 the period for completing the inquiry was
extended upto 22.8.1991; then by another notification dated 16.8.1991 the
pe,riod was extended upto 31.3.1992: and then by another notification dated H
284
Slll'Rl·MI' COURT REPORTS [1992) SUPP. 2 S.C.R.
A
27.3.1992 the
31.3.1993.
period for completing the inquiry s~an<ls extended upto
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In the n1eantin1e, Justice S.T. Ramalingan1 heca1ne <luc to retire a<.; a
Judge of the Madras High Court on 30.6.1991 on attaining the age of
superannuation and, therefore, he wrote a letter dated 19.3. 1991 to the
Chief Sc(..:retary or the Stale <lrawing atll.!ntiun lLl thi~ fact and rcy_Ul.!~ting
that necessary modalities be \Vorked out well in tin1c for his continuance
as Commission of Inquiry in the light of the guidelines issued by the
Government of India for the benefits and emoluments payable lo a Judge
on his retirement in such a situation. Justice Ramalinga1n mentioned in that
letter some of the facilities he expected, to which he would not be entitled
from the Government of Tamil Nadu on his retirement. The C~ief
Secretary R.P. Kapoor sent a reply to Justice Ramalingam by DO No.
504/CS/91 dated 9.4.1991 as under:·
"My dear Hon'blc Justice Ranrnlingam,
Thank you very much foe your letter No. 53 of 19th
March, 1991. The issues raised in your letter regarding the
tenure of the Comn1ission and the terms and conditions
after your superannuation arc under active consideration
of the Government and I \vill he in a position tn inform
you after a final vie\v is taken in this case. In the meanwhile
may I request that the proceedings may be continued so
that the inquiry can be completed at the earliest possible.
With very kind regards,
Yours sincerely,
Sd/-
(R.P. Kapoor)"'
This letter of the Chief Secretary apart fron1 pron1ising to give an
early reply also requested Justice Ramalingam lo continue with the inquiry
so that the same could be completed early. While the promised reply from
the State Govcrnmc;it to Justice Ramalingam \Vas awaited) the State
Government, withoJt further reference to Justice Ramalingam, issued a
H notification dated 10.7.1991 as under :-
•
STATE OF M.P. L AJAY SINGH [VERMA, .l.J
"Bhopal, the 10th July, 1991
No. F.1-6-91-1-(8-Ka). - Whereas, an independent high
power agency comprising of a single member namely
Justice S.T. Ramalingam, Judge of the Madras High Court
was appointed under this Department Notification No.
F.1-3-89-l(i) -E.C., dated the 24th Februa1y 1989;
And whereas Justice S.T. Ramalingarn has retired as
Judge of the Madras High Court, on 30th of June 1991;
And whereas for continuing in the said agency after
retirement Justice Shri S.T. Rarnalingam has placed certain tcnns and conditions which have not been found
possible for the Government to accept.
Now, therefore, in exercise of the powers conferred by
sub-section (3) of Section 3 of the Commissions of Inquiry
Act, 1952 (No. LX of 1952), the State Government hereby
appoint Justice Shri G.G. Sohani, retired Chief Justice,
High Court of Patna (Bihar) as single member of the said
agency in place of Justice Shri S.T. Ramalingam.
Accordingly this Department Notification Nos. (l)F.13- 89-l(i) - E.C., dated the 24th February 1989, (2) F.1-3·
89-l(i) - E.C., dated the 7Ath February 1989 and (3)
F.1-3-89-l(i) - E.C., dated the 24th February 1989, shall
stand amended lo this extent.
By order and in the name of the
Governor of Madhya Pradesh
285
S.K. Misra, Secy."
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Accordingly, by this notification, the Staie Government replaced Justice S.T. Ramalingam with Justice G.G. Sohani, retired Chief Justice of Patna G
High Court as the sole member of the Commission of Inquiry. The appointment of Justice G.G. Sohani in place of Justice S.T. Ramalingam was challenged in the M.P. 1-iigh Court by a writ petition - M.P. No. 2359 of 1991- by
respondent No. l Ajay Singh. By an interim order dated 30.7.1991 pa<sed by
the High Court, the operation of the above notification dated 10.7.1991 was H
286
SUPREME COURT REPORTS [1992[ SUPP. 2 S.C.R.
A
stayed. During the pendency of that writ petition, Justice G.G. Sohani conveyed to the State Governrnent his disinclination to continue with the assignment and tendered his resignation. Consequ~ntly, the High Court dismissed
that writ petition as infructuous on 5.9.1991. It was only thereafter that the
Chief Secretary of the State Government sent a letter dated 12.9.1991 in
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continuation of his earlier letter dated 9.4.1991 to Justice Ramalingam which
is as under ;.
11This 1s in· continuation to my earlier letter No.
504/CS/91 dated 9th April, 1991 regarding the arrangement for the Commission of Enquiry (Churhat Children
Welfare Society and Lottery), consequent to your superannuation as a Judge of the Madras High Court.
2. The State Government have considered your communications about the inconveniences you were facing in
coming to Jabalpur for want of Air-link between Madras
and Jabalpur. The State Government have also considered
the terms and conditions mentioned in your letter of 19th
March, 1991. On careful consideration of all aspects mentioned in your communications it has not been possible for
the State Government to accept the terms and conditions
set out in your letter of 19th March for taking up the work
of the above mentioned Enquiry Commission after your
superannuation. The State Government had accordingly
appointed Justice Mr. G.G. Sohani, retired Chief Justice
of the Patna High Court to be the single Member of the
Commission. I am, however, happy to convey the deep
appreciation of the State Government for the services
rendered by you in the Commission in spite of all the
personal inconvenience it has caused. The Hon'ble Chief
Minister had made a general mention of it in the Vidhan
Sabha on the 4th July, 1991.
3. Delay in reply to your letter is regretted. It was caused
because of the litigation arising out of the appointment of
Justice Sohani which was since been decided.
Wishing you and your family a very happy life after
your superannuation.
,
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STATE OF M.P. v. AJAY SINGH !VEgMA, .I.)
287
Yours sincerely,
A
R.P. Kapoor"
'J'hc State Governn1ent thereafter issued another notification dated
9.1 .1992 as under:-
"Bhopal, the 9th January 1992
No. F.J-6-91-l (8 Ka). - Whereas in exercise of the
powers conferred by sub-section (3) of Section 3 of the
Commissions of Enquiry Act, 1952 (No. LX of 1952)
Justice Shri G.G. Sohani, retired Chief Justice, High Court
of Patna (Bihar) was appointed as single member of an
independent high. power agency constituted under this
department notification No. F.1-3-89-J(i)-E.C., dated 24th
February 1998 in place of Justice Shri S.T. Ramalingam
vide this department Notification No. F.1-6-91-l(S Ka),
dated the 10th July 1991 ;
And whereas Justice Shri G.G. Sohani, retired Chief
Justice, High Court of Patna (Bihar) has since withdrawn
his consent to \vork as single member of the said agency;
No\v, therefore, in exercise of the po\vers conferred by
sub-section (3) of Section 3 of the Commissions of Enquiry
Act, 1952 (No. LX of 1952), read with Section 21 of the
General Clauses Act, 1897 (No. 10 of 1897), the State
Govcrn1nent hereby appoint Justice Shri Kamlakar
Choubcy, retired Judge of the Allahabad High Court as a
single member of the said agency in place of Shri G.G.
Sohani.
Accordingly this department Notification Nos. (1) F.13-89-I(i)-E.C., dated 24th February, 1989, (2) F.1-3-89I(i)- E.C., dated 24th February, 1989, and (3) F.1-3-89-1
(i) E.C., dated the 24th February, 1989, shall stand
amended to this extent.
By order and in the name of the
Governor of :rvtadhya Pradesh,
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SUPREME COURT REPORTS [1992] SUPP. 2 S.C.R.
Sushma Nath, Secy."
In this manner, the State Government after replacing Justice s:r.
Ramalingam first by Justice G.G. Sohani, thereafter replaced him by
Justice Kamlakar Choubey, a retired Judge of the Allahabad High Court,
as the sole member of the Commission. It is unnecessary to refer to the
terms and conditions of appointment of Justice Kamlakar Ciloubey which
were delai1ed in the General -Administration Department Memo. dated
23.3.1991 and are referred in the High Court judgment, which include the
facility of a Camp Office for him at Varanasi and other facilities of vehicle,
telephone and staff etc.
The appointment of Justice Kamlakar Choubey as the sole member
constituting the Commission of Inquiry in this manner resulting in the
replacement of Justice S.T. Ramalingam initially appointed for the purpose
led to writ petitions - M.P. Nos. 481 of 1992 and 533 of 1992 - for quashing
D the notification dated 9.1.1992 appointing Justice Kamlakar Choubey.
E
Challenge to the notification dated 10.7.1991 issued earlier appointing
Justice G.G. Sohani is academic in view of Justice Sohani having resigned
as indicated earlier. The remaining significance of the validity of the
notification dated 10.7.1991 appointing Justice G.G. Soham relates only to
the State Government's power to appoint another person in place of Justice
S.T. Ramalingam in the above circumstances.
The challenge of the writ petitioners before the High Court was that
during the continuance as the single member of the Commission of Inquiry
of Justice S.T. Ramalingam, there was no power in the State Government
F
to replace him as the member of the Commission and, therefore, the
appointment first of Justice G.G. Sohani and on his refusal, of Justice
Kamlakar Choubey, being without any authority, was invalid. On this basis,
the relief of quashing the notification dated 9.1.1992 appointing Justice
Kamlakar Choubey was sought. In substance, the argument was that there
being no vacancy in the office, the power under Section 3(3) of the
G Commissions of Inquiry Act, 1952, which is available only to fill any vacancy
could not be invoked and there was no other source of power available to
the State Govermnent for this purpose. The argument of the learned
Advocate General 0n behalf of the State Government was that a vacancy
had arisen in the membership of the Commission on account of Justice
H Ramalingam's retirement from Madras High Court on 30.6.91, and there
,.
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STATE OF M.P. v. AJAY SINGH [VERMA . .I.[
289
being his implied resignation indicated by his inclination to continue on the
A
terms and conditions suggested by him, which the State Government did
not consider feasible, the power of the State Government under Section
3(3) of the Commissions of Inquiry Act to fill the implied vacancy was
available. It was also urged by the learned Advocate General that vacancy
in the office of the single member of the Commission was also implied from
the fact that the appointment of Justice S.T. Ramalingam as the Commission of Inquiry. was qua his status as a sitting Judge of the Madras High
Court and, therefore, his retirement as a Judge resulted in creation of the
vacancy. The learned Advocate General also placed reliance on Section 16
of the General Clauses Act, 1897, in aid of the State Government's power
under Section 3(3) of the Commissions of inquiry Act. Another submission
of the learned Advocate General was that the State Government was the
sole judge in this matter and was, therefore, competent to choose the
person for making or continuing the inquiry in view of the power available
under Section 3 of the Commissions of Inquiry Act read with Section 16
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of the General Clauses Act. The learned counsel appearing on behalf of D
Kailash Joshi placed reliance on Section 3(2) of the Commission of Inquiry
Act read with Section 14 of the General Clauses Act to support the State
Ciovernment's action appointing J usticc Kamlakar Choubey contending
that the State Government had power to reconstitute the Commission
replacing Justice S.T. Ramalingam by another person. An a~gument challenging the locus standi of the writ petitioner was also faintly urged by
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counsel for Kailash Joshi.
The High Court allowed the writ petitions and quashed the notification dated 9.1.1992 appointing Justice Kamlakar Choubey. lt held that
there was no vacancy in the office of the single member of the Commission
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to empower the State Government to fill the vacancy under Section 3(3)
of lhe Commissions of Inquiry Act. On a construction of the provisions of
the Commissions of Inquiry Act and those of the General Clauses Act
relied on in support of the rival contentions, the High Court came to the
conclusion that there was neither any valid reason or ground nor any power
available in the State Government to replace Justice S.T. Ramalingam by G
another person as was purported to be done by first appointing Justice
G.G. Sohani and then Justice Kamlakar Choubey, both of whom were also
retired Judges. The objection to locus standi of the writ petitioners was also
rejected. The relevant part of the directions made by the High .Court is as
under:-
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SUPREME COURT Rl'PORTS \ 1992] SUPP. 2 S.C.R.
"42. As a result of the aforesaid discussion, the petition
succeeds and is hereby allowed. The notification dated
10.7.1991 (Anncxure-H) and the consequent notification
based thereon dated 9.1.1992 (Annexure-M) arc hereby
quashed. It is open to the State Government to propose to
Hon'hle Shri Justice S.T. Ramalingam the terms and conditions for his continuance as a member of the Commission
equivalent to, less or more favourable than those offered
and fixed for Hon'ble Shri Justice Kamlakar Choubey.
Thereafter depending on his reply the State Government
may continue or discontinue his appointment or substitute
another member in his place. It is also made dear that it
would be open to Justice Ramalingam to accept the terms
and conditions offered by the State Government of Madhya
Pradesh or to resign from the office, by taking a decision
in that behalf early, so that the work of the Commission is
not unduly hampered and it is completed well within the
extended period i.e. before 31st March, 1993 ........ "
Hence, these petitions for grant of special leave.
Leave granted.
Shri Shanti· Bhushan, learned senior counsel for the State of Madhya
Pradesh, expressly gave up the argument advanced before the High Court
of the implied resignation of .Justice S.T. Ramalingam giving rise to a
vacancy or any implied vacancy on retirement of Justice Rarnalingam as a
Judge of the Madras High Court to enable exercise of power under Section
3(3) of the Commissions of Inquiry Act for first appointing Justice G.G.
Sohani and then Justice Kamlakar Choubey in place of Justice S.T.
Ramalingam. The case of the State of Madhya Pradesh in this Court was
confined by Shri Shanti Bhushan to only one point. The only contention of
Shri Shanti Bhushan is that the aid of Section 21 of the General Clauses
Act is available to the State Government for exercising its powers under
the Commissions of Inquiry Act 'to add to, amend or vary' the notification
issued initially appointing Justice S.T. Ramalingam as the sole member of
the Commission which enables the State Government to reconstitute the
Commission by replacing .Justice S.T. Rarnalingam with any other person
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in the circumstances of the case. He argued that it is in exelcise of this
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STATE OF M.P. v. !\Ji\ Y SINGH [VERMA J.r
291
power that the period fixed initially for completion of the inquiry could be A
amended since, to the extent the provisions in the Commissions of Inquiry
Act are silent, recourse can be had to Section 21 of the General Clauses
Act for making a suitable addition, amendment or variation of the initial
notification. Acccrding to learned counsel, the power to rescind any
notification being provided in Section 7 of the Commissions of Inquiry Act,
such a power in Section 21 of the General Clauses Act was not available,
but not so the power given by Section 21 of the General Clauses Act to
add to, amend or vary any notification. Shri Shanti Bhushan also referred
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to Section 8-A of the Commissions of Inquiry Act as an indication to
support his submission of the Government's power to reconstitute the
Commission even during the availability of the person so appointed even C
though, he stated, Section 8-A is not the source of power for reconstitution
of the Commission.
In reply, Shri Kapil Sibal, learned senior counsel for respondent No.
1, submitted that the scheme of the Commissions of Inquiry Act does not D
permit invoking Section 21 of the General Clauses Act except for enlargement of the period for completion of the inquiry by amendment of the
notification only to that extent since the only situations in which reconstitution of the Commission can be made are provided in the Commissions of
Inquiry Act itself and, therefore, the context rules out the applicability of
Section 21 of the General Clauses Act for any such purpose. Shri Sibal also E
submitted that the construction suggested by Shri Shanti Bhushan is alien
to the scheme of the Commissions of Inquiry Act.