Full Judgment Text
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PETITIONER:
P. V. JAGANNATH RAO & ORS.
Vs.
RESPONDENT:
STATE OF ORISSA & ORS.
DATE OF JUDGMENT:
16/04/1968
BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
SHAH, J.C.
BHARGAVA, VISHISHTHA
MITTER, G.K.
VAIDYIALINGAM, C.A.
CITATION:
1969 AIR 215 1968 SCR (3) 789
CITATOR INFO :
F 1969 SC 258 (8)
RF 1972 SC1515 (16)
D 1978 SC 68 (136,227,272)
RF 1987 SC 877 (17)
RF 1992 SC 604 (115,140)
ACT:
Commission of Inquiries Act (60 of 1952), s. 3--Setting up
of Commission for collection of facts for future
action--Partly due to political rivalry but dominant purpose
bona fide--Validity--Some items in Notification appointing
Commission subject to appeal in civil court--Setting up of
Commission, if constitutes contempt of court.
HEADNOTE:
The appellants were Chief Ministers and Ministers of the
respondent State. In Parliament, the State Legislature and
from public platforms, it was alleged that during their
tenure of office the appellants were guilty of acts of
serious misconduct, corruption, abuse of power. misfeasance
and malfeasance. Therefore, the State Government, in
exercise of its powers under s. 3 of the Commission of
Inquiries Act, 1952, issued a notification appointing a
Commission of Inquiry to inquire into and report on the
matters’. ’so that facts may be found which alone will
facilitate rectification and prevention of recurrence of
such lapses and securing the ends of justice and
establishing a moral public order in future’. The appel-
lants filed writ petitions for setting aside the
Notification, but the High Court dismissed them.
In appeal to this Court, it was contended that : (1) An
inquiry for mere collection of facts unrelated to any future
course of Government action or legislative policy does not
fall within the purview of s. 3 of the Act and it is not a
valid exercise of statutory power to appoint such a
Commission; (2) the Commission was set up for a Purpose
alien to the statute, in that it was set up by the State
Government not in the public interest but for the collateral
purpose of getting rid of political rivals by character
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assassination; and (3) the appointment of the Commission,
constituted contempt of court in that some of the items
referred to in the impugned notification were the subject
matter of a first appeal pending, in the High Court.
HELD : (1) The preamble to the notification shows that the
object of setting up the Commission in the present case was
to take appropriate legislative or administrative measures
’for maintaining high standards of public conduct and purity
of political administration in the State in future.
Therefore, the notification falls within the ambit of s. 3
of the Act. [801 A-C 803 D-E]
Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar,
[1959] S.C.R. 279, explained.
(2) It may be that the appointment of the Commission of
Inquiry in the present case was partly on account of
political rivalry between the party in power and those
against whom the inquiry was ordered, but the dominant
purpose of setting up the Commission was to promote measures
for maintaining purity and integrity of the administration
in the political’ life of the State in future and not the
character assassination of rivals. Therefore, the impugned
notification was issued bona fide and,is legally valid. [805
A-B; 807 R-E]
The King v. Minister of Health, [1929] 1 K.B. 619, reffered
to.
*The order dismissing the appeals was pronounced on April
16, 1968 and the Judgment was delivered on April 30, 1968.
790
Rex v. Brighton Corporation ex-parte Shoosmith, 96 L.T. 762,
Earl Fitzwilliam’s Wentworth Estate Co. Ltd. v. Minister of
Town and Country Planning, [1951] 2 K.B. 284, applied..
(3) To constitute contempt of court there must be involved
some act done or writing published calculated to bring a
court or a judge of the court into contempt or to lower his
authority’ or something ’calculated to obstruct or interfere
with the due course of justice or the lawful process of the
courts.’ [808 H]
In the present case, the suits were filed ’for damages for
defamation in relation to allegations of corruption. There
was no factual inquiry into the allegations and the suits
were decided on the basis of burden of proof. Therefore, it
could not be said that the inquiry ordered was in relation
to the very matters which were the subject matter of the
first appeal filed in the High Court against the decision in
the suits. [808 C-E]
Further, the scope of the trial by courts of law and the
scope of an inquiry by the Commission are altogether
different, and therefore, the inquiry by the Commission
would not amount to an usurpation of the function of courts
of law. [808 E]
In any case, it cannot be said that the Commission would be
liable for ,contempt of court, if it proceeded to inquire
into matters referred to it by the Government notification,
because, in appointing the Commission the State Government
was exercising a statutory power and in making the inquiry
the Commission would be performing a statutory duty. The
respondents in this case have done nothing to obstruct or
interfere with the lawful powers of the court by acting bona
fide and by discharging statutory functions under the Act.
[808 E-G]
Reg. v. Grav, [1900] 2 Q.B. 36 and Arthur Reginald Perera v.
The King, [1951] A.C. 482, 488, applied.
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JUDGMENT:
CIVIL APPELLATE JURISDICTION-: Civil Appeal Nos. 11481150 of
1968.
Appeals from the judgment and-order dated February 22, 1967
of the Orissa High Court in O.J.C. Nos. 396, 408 and 418 of
1967.
A. K. Sen, Rajendra Mohanty, K. R. Chaudhury and K.
Rajendra Choudhury, for the appellants.
C. K. Daphtary, Attorney-General, Ashok Das, Advocate-
General for the State of Orissa, Santosh Chatterjee, B. B.
Ratho and R. N. Sachthey, for respondents Nos. 1, 2 and 4.
Lal Narain Singh, Advocate-General for the State of Bihar
and R. K. Garg, for intervener. No.
B. Sen, M. K. Banerjee, S, K. Dholakia and J. B.
Dadachanji, for intervener No. 2.,
The Judgment of the Court was delivered by
Ramaswami, J. These appeals were heard on April 15 and April
16, 1968 and at the close of the hearing we ordered that the
appeals should be dismissed with costs and indicated that
our reasons would be pronounced later. Accordingly our
present judg-
791
ment gives our reasons for the order which has already been
passed.
These appeals are brought against the common judgment of the
Orissa High Court dated February 22, 1968 in O.J.C. Nos.
396, 408 and 418 of 1967. By these applications the
petitioners therein prayed for an appropriate direction or
order under Art. 226 of the Constitution for quashing and
setting aside notification No. 813-EC dated October 26,
1967, issued by the Government of Orissa in exercise of the
powers conferred on it by S. 3 of the Commissions of Enquiry
Act (LX of 1952) and for other reliefs. The Schedule to the
Notification gives the names of 15 persons against whom
inquiry is to be made. The petitioners in the three O.J.C.s
have respectively been referred to in Items 6, 2 and 12 of
the Schedule. In O.J.C. 418, Shri Harekrishna Mahtab, Shri
Nabakrushna Choudhury, Shri Pabitra Mohan Pradhan, Shri
Santanu Kumar Das and Shri Surendranath Patnaik were
originally impleaded as opposite parties Nos. 5 to 9. Shri
Biju Patnaik filed an application in this case to be
impleaded as an opposite party. As the other parties had no
objection he was also impleaded as opposite party No. 10.
Rules were issued and except opposite parties Nos. 3 and 6
the other opposite parties showed cause. By its judgment
dated February 22, 1968 the High Court dismissed the
applications, holding that the notification of the State
Government dated October 26, 1967 appointing the Commission
of inquiry was legal and valid. Against this judgment the
petitioners in all the three O.J.C.s have preferred the
present appeals by certificate of the Orissa High Court.
Shri Harekrushna Mahtab was the. Chief Minister of Orissa
from 1947 to 1949. Shri Nabakrushna Choudhury was the Chief
Minister from 1950 to 1956. In the 1957 General Election to
the Orissa Legislative Assembly (hereinafter referred to as
the ’Assembly’), out of 140 seats the Congress Party got
only 56 seats. Sri Harekrushna Mahtab formed the Ministry
with the support of other members but he had to resign in
1959 due to withdrawal of support by some of the groups in
the Assembly. In May, 1959, he formed a coalition ministry
with the help of Ganatantra Parishad of which Sri R. N.
Singh Deo was the leader. Sri Singh Deo became the Finance
Minister and the Deputy Leader in the Coalition Government.
During the coalition Minis-’ try there developed acute
difference of opinion in the Orissa Congress Legislative
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party over the conduct and programme of the coalition
Ministry. The Congress Legislative party was divided into
two groups, one under the leadership of Sri Harekrushna
Mahtab and the other under the leadership of Sri Biju
Patnaik. Sri Harekrushna Mahtab had to resign in February,
1961 as he lost the support of the majority of the Congress
Legislative party.
8 Sup. CI/68-11
792
The Assembly was dissolved and there was President’s rule
for sometime. During the President’s rule, a mid-term
election was held in May, 1961. The Congress Party
succeeded in capturing 80 seats out of 140 under the
leadership of Sri Biju Patnaik. At that time the Ganatantra
Parishad had joined the Swatantra Party of India. The
dissident group of members under the leadership of Sri
Harekrushna Mahtab defected from the Congress Party and
formed a separate ’political party under the name of "Jana
Congress". The case of the appellants is that from 1961
till the end of 1966 this group had its secret alliance with
the Swatantra Party and went on creating obstruction from
within to the smooth administration by the Congress Party
which had a superior numerical strength. Sri Biju Patnaik
was-the Chief Minister, Shri Biren Mitra was the Deputy
Chief Minister. There was a firm called "Orissa Agents" in
the name of Mrs. Mitra which made supplies to some of the
departments of the Orissa Government. A campaign was
carried on by Sri Mahtab and Sri Pabitra Mohan Pradhan
attacking the honesty of Sri Biren Mitra. There was a
debate in the Assembly in which a direct attack was made on
the honesty and integrity of Sri Mitra and there was a
demand for appointment of a Commission of Inquiry. The
Government of Orissa did not agree to the appointment of a
Commission of Inquiry but Sri Biju Patnaik referred the
matter to Sri Singh Deo, leader of the Opposition and
Chairman of the Public Accounts Committee. Sri Sineh Deo
initially accepted the responsibility, but later on
expressed his unwillingness. The Orissa Government had a
special audit of the allegations and sent the report to the
Public Accounts Committee in the year 1964. While the
matter was pending with the Public Accounts Committee, Sri
Biju Patnaik resigned the Chief Minister-ship of Orissa on
October 1, 1963. He, however, continued to be the chairman
of the State Planning Board till January 29, 1965 When Sri
Biren Mitra was the Chief Minister. Sri Mitra dropped out
Sri Pabitra Mohan Pradhan from the cabinet. During the
tenure of the office of Sri Mitra as the Chief Minister of
Orissa, some members of the Opposition in the Assembly,
which included all the members of the Swatantra Party, filed
a memorandum before the President of India alleging
misappropriation, misconduct and fraud against Sri Patnaik,
Sri Mitra and certain, other Ministers and requested the
President of India to appoint a Commission of Inquiry to
inquire into these allegations. The. President referred
the Memorandum to his Council of Ministers. It is said the
Central Government did not favour the appointment of a
Commission of Inquiry but decided to have the allegations
enquired into by the Central Bureau of Intelligence (herein-
after referred to as the C.B.I.). After receiving the
preliminary report of the C.B.I. the Central Government
rejected the demand for appointment of a Commission of
Inquiry. A statement was
793
made in Parliament that certain improprieties were committed
but the examination did not reveal any misconduct,
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misappropriation or fraud or abuse of power for personal
gain. As a result of the statement in the Parliament Sri
Biren Mitra who was then the Chief Minister submitted his
resignation and Sri Sadasiv Tripathy was elected as the
leader of the Congress Legislative Party and carried on
administration as the Chief Minister of Orissa till the last
General Election. Soon after the formation of the present
Ministry, the Governor of the State announced in his address
to the Legislature the decision to set up a Commission of
Inquiry to enquire into the charges of corruption and
improprieties alleged to have been committed by the
Ministers who were in office from 1961 to 1967. The present
Commission was appointed in pursuance of the policy laid
down in the address of the Governor. The main ground of
attack on behalf of the appellants was that the notification
was illegal because the Government exercised the statutory
power mala fide and for collateral purpose and that the
object of appointing the Commission of Inquiry was to get
rid of Sri Biju Patnaik and Sri Biren Mitra and to drive
them out of the political life of Orissa. The High Court
held that the allegation of the appellants was not made out
and upheld the legal validity of the notification dated
October 26, 1967 issued by the Orissa Government.
Sub-s. (1) of s. 3 of the Commissions of Inquiry Act, 1952
(No. LX of 1952), hereinafter referred to as the ’Ace,
provides as follows :
"3. Appointment of Commission--(1) the
appropriate Government may, if it is of
opinion that it is necessary so to do, and
shall, if a resolution in this behalf is
passed by the House of the People or, as the
case may be, the Legislative Assembly of the
State, by notification in the Official
Gazette, appoint a Commission of Inquiry for
the purpose of making an inquiry into any
definite matter of public importance and
performing such functions and within such time
as may be specified in the notification, and
the Commission so appointed shall make the
inquiry and perform the functions accordingly
Section 4 vests in the Commission the powers
of a civil court while trying a suit under the
Code of Civil Procedure and reads as follows :
"4. Powers of Commission.-The Commission shall
have the powers of a civil court, while trying
a suit under the Code of Civil Procedure, 1908
(Act V of 1908). in respect of the following
matters, namely:-
794
(a) summoning and enforcing the attendance
of any person and examining him on oath;
(b) requiring the discovery and production
of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy
thereof from any court or office;
(e) issuing commissions for the examination
of witnesses or documents;
(f) any other matter which may 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 states :
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"6. Statements made by persons to the Commis-
sion.--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 pro-
ceeding except a prosecution for giving false
evidence by such statement :
Provided that the statement-
(a) is made in reply to a question which he
is required by the Commission to answer, or
(b) is relevant to the subject matter of the
inquiry."
By s. 8 the Commission is empowered to
regulate its own procedure including the time
and place of its sittings and may act not-
withstanding the temporary absence of any
member or the existence of any vacancy among
its members.
The notification of the Orissa Government
dated October 26, 1967 is to the following
effect:
"HOME DEPARTMENT
NOTIFICATION
The 26th October, 1967.
No. 813--E.C.--WHEREAS pursuant to the midterm
general election of the State Legislative
Assembly in 1961, Councils of Ministers headed
by shri Biju
795
Patnaik, Shri Biren Mitra and Shri Sadasiva
Tripathy were formed in the State during
different times during the period from the
23rd June 1961 till the 8th March 1967 and
Shri Biju Patnaik, after laying down his
office as Chief Minister, declared himself to
be the Chairman, Planning Board and continued
to function as Chairman, Planning Board during
the period from the 4th October, 1963 to the
29th January 1965, during the Chief Minister-
ship of Shri Biren Mitra;
AND WHEREAS during the tenure of office of the
aforesaid persons as Chief Ministers there
were various allegations against the conduct
of the aforesaid persons and some of the
Ministers and Deputy Ministers of the State of
Orissa, as specified in the Schedule hereto,
by politicians, the general public and others,
and the allegations apart from being put
forward from public platforms by private
persons and otherwise, have been the
subject-
matter of active agitation all through in the
State Legislature and in the Parliament and
some of such allegations were of such a nature
that an enquiry was conducted thereon by the
Central Bureau of Investigation and the
Central Cabinet also held deliberations over
the same;
AND WHEREAS on an active and careful consi-
deration of all such allegations by the
Government of Orissa, it appears to them:-
THAT DURING THE AFORESAID PERIOD, i.e., FROM
THE 23RD JUNE 1961 TO THE 8TH MARCH 1967, THE
SAID PERSON AS NAMED IN THE SCHEDULE:
(1) committed various acts of misconduct,
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misappropriation, fraud, negligence,
favouritism, nepotism, illegalities,
irregularities, improprieties and abuse of
their power in the matters of administration
of the State
(2) abused their official positions for
securing pecuniary and other benefits for
themselves, members of their families, their
relations, their friends, their party-men
(Congressmen) and others in whom they were
interested, from out of the funds of the State
exchequer and otherwise to the detriment of
the interests of% the State;
(3) committed breach of trust and acts of
impropriety with respect to the properties and
assets of the State with a view to further the
interests of their Organisation, i.e., the
Congress;
796
(4) entered into contracts and other
monetary transactions for the supply of
machinery, tools, equipments and execution of
Works, themselves, or permitted their family
members, relations, friends, partymen and
others to enter into such contracts and
transactions with the Government of Orissa,
with different Departments of the Government
of Orissa, with Corporations, Local Bodies,
Statutory Bodies and with other Bodies with
which Government of Orissa have or had
interest, control or concern in utter
disregard of the interests of the State in
breach of the trust imposed on them by virtue
of their Constitutional positions;
(5) resorted to misuse of power, interfered
in the processes of elections and
administration of Local Bodies not only to
help their friends, favourites and partymen
but also at times for their own personal
benefits;
(6) acquired directly properties of the
State either for themselves or for the benefit
of the members of their families or relations
or others in whom they were interested;
(7) advanced money and loans by way of
favouritism out of the State exchequer in
favour of themselves, members of their
families, their relations and other persons in
whom they were interested;
(8) permitted wastage, misuse, mis-
utilisation and misappropriation of the funds
of the State in several ways to the detriment
of the interests of the State in utter
disregard of the canons of financial propriety
and established rules and procedure from which
a presumption of personal gains for themselves
or for persons as aforesaid directly or
indirectly arises;
(9) caused wastage, misuse, misutilisation,
misappropriation, illegal or irregular use of
the funds of the State through contracts or
other monetary transactions entered into by
the Government without following the rules of
law or the established procedure;
(10) by way of favouritism and nepotism
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caused maladministration in matters of public
services, namely, in the matter of
appointments, transfers, promotions and
dealing with corrupt officers;
(11) interfered with the administration of
law and tried to pervert the course of justice
by helping offenders to escape law;
797
(12) caused to the State Government huge
financial loss which has given rise to a great
economic crisis, serious retardation in the
progress of trade, industry and commerce,
agricultural output, serious problems of un-
employment and has also vitiated the moral and
general character of the people;
(13) acted in several cases against
constitutional proprieties, public policies
and proper social and political conduct;
(14) amassed wealth themselves, through
members of their family, relations and other
persons or permitted the members of their
family, relations and other persons to amass
wealth and their assets during the before,
said period have increased disproportionate to
the known sources of their income, by abuse of
their constitutional positions.
Under such circumstances the people in general
and the Government have expressed a desire
that the matters aforesaid regard
ing the
aforesaid persons should be enquired into
through a Commission of Inquiry so that facts
may be found which alone will facilitate
rectification and prevention of recurrence of
such lapses and securing the ends of justice
and establishing a moral public order in
future.
Under such circumstances, the Government of
the State of Orissa are of the opinion that it
is necessary to appoint a Commission of
Inquiry for the purpose of making a full
inquiry into the aforesaid matters which are
of definite public importance.
NOW, THEREFORE, the State Government, in
exercise of the powers conferred by section 3
of the Commission of Inquiries Act, 1952 (Act
60 of 1952), hereby appoint a Commission of
Inquiry consisting of Shri Justice H. R.
Khanna of the Delhi High Court to inquire into
and report on and in respect of
WHETHER THE PERSONS MENTIONED IN THE SCHEDULE,
DURING THE AFORESAID PERIOD:
(1) committed various acts of malfeasance,
misfeasance, misappropriation, fraud,
negligence, favouritism, .nepotism,
illegalities, irregularities, improprieties
and abuse of their power in matters of
administration of the State in different cases
?
798
(2) abused their official positions for
securing pecuniary and other benefits for
themselves, the members of their families,
their relations, their friends and their
partymen (Congressmen) and others in whom they
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were interested, from out of the funds of the
State exchequer and otherwise to the detriment
of the interests of the State ?
(3) committed breach of trust and acts of
impropriety with respect to the properties and
assets of the State with a view to further the
interests of their party Organisation, i.e.
the Congress ?
(4) entered into contracts and other
monetary transactions for the supply of
machinery, stores, equipment and execution of
works or permitted their family members,
relations, friends and others in whom they
were interested, with the Government of
Orissa,. in utter disregard of the law, rules
and administrative procedure relating thereto
and in breach of the confidence reposed on
them, by virtue of their constitutional
position ?
(5) resorted to misuse of power, interfered
in the process of election and administration
of local bodies not only to help their
friends, favourites and partymen, but also at
times for their own personal benefit ?
(6) acquired directly properties of the
State either for themselves or for the benefit
of members of their families, relations or
other persons in whom and organisations in
which they were interested ?
(7) advanced money and loans in favour of
themselves, members of their families, their
relations and other persons in whom they were
interested, out of the State Exchequer ?
(8) permitted wastage, misuse and
expenditure in various ways to the detriment
of the interests of the State without
following the established rules of procedure
from which the presumption of personal gains
for themselves directly or indirectly would
arise ?
(9) by way of favouritism and nepotism have
caused maladministration in matters of public
services, namely, appointments, transfers,
promotions and dealing with corrupt officers ?
799
(10) interfered in the administration of law
and tried to pervert the course of justice by
helping offenders to escape law ?
(11) by their aforesaid conduct have put the
State, Government to huge financial loss which
has resulted in a financial crisis for the
State?
(12) by their aforesaid conduct have hampered
the entire industrial development in the
State?
(13) by their aforesaid conduct have given
rise to, serious problems of unemployment
?
(14) by their aforesaid conduct have spread
corruption in the Government machinery and
have polluted the general public morale in the
State and have also, brought about a general
demoralisation of the political, social,
economic and moral aspects of the Society ?
(15) by their aforesaid conduct have put the
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State to, financial loss which has developed
into a great economic crisis and has resulted
in rapid retardation of the progress of trade,
industry and commerce, a deplorable fall in
the agricultural output, spread of corruption
in all wings of administration and a general
breakdown in the morale and character of the
people of the State ?
The Commission of Inquiry may also perform
such other functions as are necessary or
incidental to the inquiry.
The Commission shall inquire into the detailed
particulars pertaining to the aforesaid
matters along with such other incidental and
ancillary matters thereto that shall be placed
before them by the State Government.
The Commission shall inquire into the
financial implications of the aforesaid
matters.
The Commission shall make its report to the
State Government on or before 30th April,
1968.
AND WHEREAS the State Government are of
opinion that having regard to the nature of
the inquiry to be made and other circumstances
of the case, all the provisions of subsections
(2), subsection (3), sub-section (4), sub-
section (5) and sub-section (6) of section 5
of’ the Commission of Inquiry Act, 1952 shall
be made applicable to the said Commission, the
State Government hereby directs that all the
said provisions shall apply to the said
Commission.
800
The Commission shall have its headquarters at Bhubaneswar
and may also visit such places as may be necessary in
furtherance of the inquiry.
By order of the Governor
B. B. Rath
Additional Secretary to Govt.
SCHEDULE
From To
1. Shri Biju Patnaik Chief Minister
Planning Bd. 23-6-19611-10-1963
Chairman, State 4-10-196329-1-1965
2. Shri Biren Mitra Minister 23-6-19611-10-1963
Chief Minister 2-10-196320-2-1965
3. Shri S. Tripathy Minister 23-6-196120-2-1965
Chief Minister 21-2-1965 8-3-1967
4. Shri Hilamoni Routray Minister 23-6-196125-2-1967
5. Shri Satyapriya Mohanty Minister 2-10-196324-2-1967
6. Shri P. V. Jagannath Rao Minister 23-6-1961 8-3-1967
7. Shri H. B. Singh MardarajMinister 23-6-196120-2-1965
8. Shri R. P. Misra Minister 21-2-196525-2-1967
9. Shri Brundaban NayakDeputy Minister 29-7-1962 1-10-1963
Minister 2-10-1963 28-6-1965
10. Shri T. Sanganna Dy. Minister 29-7-1962 1-10-1963
Minister 2-10-1963 27-2-1967
11. Shri Prahallad Mallik Dy. Minister 29-7-196228-2-1967
12. Shri S. K. Sabu Dy. Minister 29-7-196228-2-1967
13. Shri Anup Singh DeoDy. Minister 21-2-1965 8-2-1967
14. Shri Chittaranjan Naik Dy. Minister 21-2-196526-2-1967
15. Shri Chandramohan Singh Dy. Minister 29-7-1962 24-2-1967
B.B. Rath Additional Secretary to Govt.
On behalf of the appellants Mr. Asoke Sen put forward the
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argument that the appointment of the Commission is not valid
as the notification does not state what is the purpose for
which the enquiry was to be made. To put it differently,
the argument of the appellants was that the notification is
not related to any future ,Government action or legislative
policy and hence the notification was bad. The contention
of Mr. Asoke Sen was that an inquiry for mere collection of
facts unrelated to any future course of Government action or
legislative policy does not fall within the purview of s. 3
of the Act and it is not a valid exercise of statutory power
to appoint such a Commission. We are unable to accept the
argument put forward on behalf of the appellants as correct.
The purpose of the enquiry is stated in the preamble
801
to the notification which states that "the matters aforesaid
regarding the aforesaid persons should be enquired into
through a Commission of Inquiry so that facts may be found
which alone will facilitate rectification and prevention of
recurrence of such lapses and securing the ends of justice
and establishing a moral public order in future". In other
words, the object of the enquiry to be made by the
Commission appointed under S. 3 of the Act was to take
appropriate legislative or administrative measures to
maintain the purity and integrity of political
administration in the State. In our opinion, the
appointment of the Commission of Inquiry in the present case
was in valid exercise of the statutory power by the State
Government under s. 3 of the Act. Mr. Asoke Sen referred in
this connection to the decision of this Court in Shri Rain
Krishna Dalmia v. Shri Justice S. R. Tendolkar(1). in which
the appellant challenged the validity of the notification of
the Central Government dated December 11, 1956 appointing 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 exercised over these companies. It was held by
this Court, in agreement with the Bombay High Court, that
the notification was legal and valid except as to the last
part of cl. 10 thereof which empowered the Commission 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. Clause 10 of the notification in that case
stated :
"Any irregularities, frauds or breaches of
trust or action in disregard of honest
commercial practices or contravention of any
law (except contravention in respect of which
criminal 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."
The portion of Cl. 10 of the notification which was held to
be ultra vires by this Court was the portion beginning with
the words " and the action" and ending with the words "in
future cases". It was argued on behalf of the appellant in
that case that while the Commission may find facts on which
the Government may take action, legislative or executive,
the Commission cannot be asked to suggest any measure,
legislative or executive, to be taken by the appropriate
Government. The argument was rejected by
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(1) [1959] S. C. R. 279.
802
this Court. In this connection, S. R. Das, C.J. speaking
for the Court observed at page 294 of the Report as follows
:
"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 evidence 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
to 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 advice of the expert body
as to the, measures the situation disclosed
calls for cannot be placed bef
ore the
Government for consideration notwithstanding
that doing so cannot be to the prejudice of
anybody because it has no force of its own.
In our view the recommendations of a Com-
mission of Inquiry are of great importance to
the Government in order to enable it to make
up its mind as to what legislative or
administrative measures should be adopted to
eradicate the evil found or to implement the
beneficial objects it has in view. From this
point of view, there 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 statement 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 imposed by a court of law properly
constituted exercising its own discretion on
the
803
facts and circumstances of the case and
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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
make 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."
In our opinion, the ratio of this case has no application
’in the present case, because there is nothing corresponding
to the impugned part of cl. 10, in the notification of the
Orissa Government dated October 26, 1967. On the contrary,
we have already pointed out that the object to set up the
Commission of Inquiry in the present. case was to take
appropriate legislative or administrative measures for
maintaining high standards of public conduct and purity of
political administration in the State. It follows therefore
that the notification of the Orissa Government falls within
the ambit of s. 3 of the Act and must be held to be legally
valid and intra vires.
We pass on to consider the next question arising in these
appeals, namely, whether the power was exercised by the
State Government for a purpose alien to the statute. It was
contended by Mr. Asoke Sen that there was a bitter political
rivalry between the appellants on the one hand and Shri
Pabitra Mohan Pradhan, Shri Harekrishna Mehtab, Shri. Singh
Deo and the other persons who are at present in-charge of
the Orissa administration. Reference was made by Mr. Asoke
Sen to the political history of the State of Orissa from
1947 up to the General Elections, 1967 and in particular to
the rivalry between Sri Biju Patnaik and Sri Singh Deo who
was the leader of Opposition in the previous Government and
also to the internal rivalry between the two political
groups in the Congress Legislative party, one led by Shri
Harekrushna Mahtab and the other led by Shri Biju Patnaik
and Shri Biren Mitra. It was urged that the Commission was
set up by the present Orissa Government not in the public
interest but for a collateral purpose, namely, for getting
rid of Shri Biju Patnaik and Shri Biren Mitra and driving
them out of the political life of Orissa. Mr. Asoke Sen
said that the object of the enquiry was character
assassination of Shri Patnaik and Shri Biren Mitra and so
the Commission was set up for a collateral purpose and the
notification must be struck down as illegal and ultra vires.
It is not possible,
804
in our opinion, to accept this argument as correct. It is
admitted that there is political rivalry in Orissa between
the appellants and the present Chief Minister of Orissa,
Shri R. N. Singh Deo and also as between the appellants and
the group of Congress dissidents led by Shri Harekrushna
Mahtab, Shri Nabakrushna Choudhury, Shri Pabitra Mohan
Pradhan, Shri Santanu Kumar Das and Shri Surendranath
Patnaik. But we do not think that the existence of
political rivalry is in itself sufficient to hold that the
appointment of the Commission of Inquiry is illegal. Having
perused the affidavits of the appellants and Also those
filed by the respondents in this case we are of opinion that
the appointment of the Commission of Inquiry was not due
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merely to the existence of political rivalry of the parties
but was impelled by the desire to set up and maintain high
standards of moral conduct in the political administration
of the State. As we have already pointed out, the object of
appointing the Commission is stated in the notification
itself as "the rectification and prevention of recurrence of
such lapses and securing the ends of justice and
establishing a moral public order in future". In the
affidavit of Shri Pabitra Mohan Pradhan it is stated that
the appointment of the Commission of Inquiry was one of the
items of the common programme on which the Jana Congress and
the Swatantra Party contested the General Elections of
1967., As a result of the popular mandate the Swatantra
Party and the Jana Congress coalition took charge of the
reins of Government and in accordance with the solemn
promise made by those parties to the people of Orissa the
Government decided to appoint a Commission of Inquiry in
order to investigate the widespread corruption practiced by
the persons named in the Schedule to the impugned
notification. The decision to appoint a Commission was also
announced in the first address of the Governor to the Orissa
Legislative Assembly after the 1967 General Elections. In
paragraph 17 of the affidavit, Shri Pabitra Mohan Pradhan
has further said that the object of the Jana Congress and
the Swatantra Party was "to set up a clean administration,
so that the State’s resources should not go into the pockets
of the corrupt group led by Shri Biju Patnaik and Shri Biren
Mitra but should be used for giving a better life to the
people of the State". In para 6 of the affidavit Shri
Pabitra Mohan Pradhan further states : "I have always
believed-and still believe that politics is not for the
purpose of serving the selfish ends and to satisfy the greed
of any politician or any person or any group of persons.
Politics is for the service of the people and involves
sacrificing one’s life and comforts for raising the living
standard of the overwhelming poverty-stricken people of our
State and our country so that they may enjoy a good life and
hold up their heads with pride." In para 5 he has denied
that there was any intention on his part to carry on
character assassination of Shri Biju Patnaik, Shri Biren
805
Mitra and their group. It is true that the appointment of
the Commission of Inquiry may have been made partly on
account of the political rivalry between the parties but
having perused the affidavits filed by the appellants and
the respondents in this case, we are satisfied that the main
object of the appointment of the Commission of Inquiry was
not to satisfy the political rivalry of the politicians at
present in power in Orissa but to promote measures for
maintaining purity and integrity of the administration in
future in the Orissa State. We are accordingly of the
opinion that Mr.. Asoke Sen is unable to make good his
argument that the impugned notification is a mala fide
exercise of the statutory power and it should be struck down
as illegal.
It is well-settled that if a statutory authority exercises
its power for a purpose not authorised by the law the action
of the statutory authority is ultra vires and without
jurisdiction. In other words it is a mala fide exercise of
power in the eye of law; i.e., an exercise of power by a
statutory authority for a purpose other a that which the
Legislature intended (See The King , v. Minister of Health)
(1). But the question arises as to what is the legal
position if an administrative authority acts both for an
authorised purpose and for an unauthorised purpose. In such
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a case where there is a mixture of authorised and
unauthorised purpose, what should be the test to be applied
to determine the legal validity of the administrative act ?
The proper test to be applied in such a case is as to what
is the dominant purpose for which the administrative power
is exercised. To put it differently, if the administrative
authority pursues two or more purposes of which one is
authorised and the, other unauthorised, the legality of the
administrative act should be determined by reference to the
dominant purpose. This principle was applied in Rex v.
Brighton Corporation ex parte Shoosmith (2) A Borough
Corporation expended a large sum of money upon altering and
paving a road, which was thereby permanently improved, but
they decided to do the work at the particular time when it
was done in order to induce the Automobile Club to hold
motor trials and motor races upon it. The Court of Appeal
(reversing the decision of the Divisional Court), refused to
intervene, and it was observed by Fletcher Moulton, L.J. at
page 764 as follows:
"It cannot be denied that the physical act of
changing the surface of a road when the
corporation thought fit and proper so to do
was within their statutory powers and there is
no case proved by the evidence which shows
either that they wastefully used the public
money or that they did so with improper
motives. The case would be quite different if
one came to the conclusion that under the
guise of improvement of a road, certain moneys
had
(1) [1929] 1 K. B. 619.
(2) 96 Law Times 762.
806
been used really for diminishing the expenses,
of the Automobile Club or anything of that
sort and that there had been a turning aside
of public moneys to illicit purposes."
principle was applied by Denning, L.J. in Earl Fitzwilliam’s
Wentworth Estate Co. Ltd. v. Minister of Town and Country
Planing(1). It was a case concerning the validity of a
compulsory purchase made by the Central Land Board, and
confirmed by the Minister, under the provisions of the Town
and Country Planning Act, 1947, in respect of a plot of
land, ripe for development, which the owner was not prepared
to sell at the existing use value. The landowner applied to
have the order quashed, as not having been made for any
purpose connected with the Board’s function under the Act,
but for the purpose of enforcing the Board’s policy of sales
at existing use values. The majority (consisting of Somer-
well and Singleton, L.J.) held that, though the main purpose
of the Board may well have been to induce landowners in
general and the company, in particular, to adopt one of the
methods of sale favoured by the Board, it was nevertheless
in connection with their function as the authority operating
the development charge scheme, and at any rate, "the case
was not one in which it could be said ’that powers were
exercised for a purpose different from those specified in
the statute." Denning, L.J. disagreed with the majority and
held that the dominant purpose of the Board was not to
assist in their proper function of collecting the
development charge, but to enforce their policy of sales at
existing use value only. The dominant purpose being
unlawful, the order was invalid, and could not be cured by
saying that there was also some other purpose which was
lawful. The Board and the Minister had misunderstood the
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extent of their compulsory powers, and their affidavits
showed that they had overlooked that their ultimate purpose
in exercising their powers should be connected with the
performance of the Board’s functions under the Act. At page
307 of the Report Denning, L.J. observed as follows:
"What is the legal position when the board
have more than one purpose in mind ? In the
ordinary way, of course, the courts do not
have regard to the ’purpose’ or ‘motive’ or
’reason’ of an act but only to its intrinsic
validity. For instance, an employer who
dismisses a servant for a bad reason may
justify it for a good one, so long as he finds
it at any time before the trial. But
sometimes the validity of an act does depend
on the purpose with which it is donsas in the
case of a conspiracy-and in such a case, when
there is more than one purpose, the law always
has regard to the dominant
(1) [1951] 2 K. B. 284.
807
purpose. If the dominant purpose of those
concerned is unlawful, then the act done is
invalid, and it is not to be cured by saying
that they had some other purpose in mind which
was lawful: see what Lord Simon, Lord Maugham
and Lord Wright said in Crofter Hand Woven
Harris Tweed Co. v. Veitch (1942 A.C. 445.
452-3, 469, 475).
So also the validity of government action
often depends on the purpose with which it is
done. There, too, the same principle applies.
If Parliament grants a power to a government
department to be used for an authorized
purpose, then the power is only validly exer-
cised when it is used by the department
genuinely for that purpose as its dominant
purpose. If that purpose is not the main
purpose, but is subordinated to some other
purpose which is not authorised by law, then
the department exceeds its powers and the
action is invalid."
Applying the test to the present case, we are of opinion
that the dominant purpose of setting up the Commission of
Inquiry was to promote measures for maintaining purity and
integrity of the administration in the political life of the
State and not "the character assassination" of Shri Biju
Patnaik and Shri Biren Mitra and their group.
It follows therefore that the impugned notification of the
Orissa Government, dated October 26, 1967 is legally valid.
We proceed to consider the next argument put forward on
behalf of the appellants, namely, that the appointment of
the Commission of Inquiry was illegal because it constituted
contempt of Court. It was pointed out that-items with
regard to Shri Biren Mitra referred to in the impugned
notification were the subjectmatter of civil litigation and
there was a First Appeal pending in the High Court. It
appears that all the items of charges regarding Shri Biren
Mitra were included in the Memorandum submitted by Shri
Nisamoni Khuntia, Secretary, Sanjukta Socialist Party to the
President of India. The memorandum was published in the
Daily newspaper "The Eastern Times" on its front page on
August 2, 1964 with bold headlines "Money amassed through
corruption". Shri Harendra Chandra Pradhan was the Printer
and publisher of that paper. Shri Biren Mitra filed two
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suits-O.S. No. 266 and 267 of 1964 against the Prajatantra
Prachar Samiti (defendant No. 1), Shri Janaki Ballav Patnaik
(Defendant No. 2), Shri Narendra Chandra Pradhan (Defendant
No. 3) and Shri Nisamoni Khuntia (Defendant No. 4). It was
alleged that there was collusion between defendants 1 to 4
and other political opponents of
L8 Sup. C. T./68-12
808
Shri Biren Mitra. Defendants 1 to 3 filed a common Written
Statement saying that the assertions in the memorandum were
true. The 4th defendant filed a separate written statement
to the same effect. The suits were heard by the Subordinate
Judges, Cuttack. He held that the publication was on the
face of it defamatory and libellous. No evidence was given
on either side regarding the truth of the imputations in the
publications. Holding that the burden ,of proof rested on
the defendants the Subordinate Judge decreed the suit for
damages for Rs. 200. It was contended by Mr. Asoke Sen that
the decision of the Subordinate Judge was pending in the
First Appeal in the High Court and so no Commission of
Inquiry could be appointed with regard to the same matters.
In our opinion, there is no substance in this argument. It
should be noticed, in the first place, that none of the
parties in the civil suit has adduced any evidence. Shri
Biren Mitra did not choose to appear as a witness and
present himself for cross-examination. The suits were
decided purely on the basis of burden of proof. We do not
wish to express any view as to whether these two suits were
decided rightly or wrongly, but the fact remains that there
was no factual enquiry into the allegations. It is also not
possible to accept the argument that the present inquiry is
in--relation to the very matters which were the subject-
matter of the civil suits and of the first appeal. It was
pointed out by this Court in Shri Ram Krishna Dalmia v. Shri
Justice S. R. Tendolkar(1) that the inquiry cannot be looked
upon as a judicial inquiry and the order ultimately passed
cannot be enforced proprio vigore. The inquiry and the
investigation by the Commission. do not therefore amount to
usurpation of the function of the courts of law. The scope
of the trial by the Courts of law and the Commission of
Inquiry is altogether different. In any case, it- cannot be
said that the Commission of Inquiry would be liable for
contempt of Court if it proceeded to enquire into matters
referred to it by the Government Notification. In
appointing a Commission of Inquiry under s. 3 of the Act the
Orissa Government is exercising a statutory power and in
making the inquiry contemplated by the notification, the
Commission is performing its statutory duty. We have
already held that in the appointment of the Commission of
Inquiry the Government was acting bona fide. It is,
therefore, not possible to accept the argument of the
appellants that the setting up of the Commission of Inquiry
by the State Government or the continuance ,of the inquiry
by the Commission so constituted would be tantamount to
contempt of Court. To constitute contempt of court, there
must be involved some "act done or writing published cal-
culated to bring a court or a judge of the court into
contempt or to lower his authority" or something "calculated
to obstruct or interfere with the due course of justice or
the lawful process of flip,
(1) [1959] S. C. R. 279.
809
courts" see Reg. v. Gray(1), Arthur Reginald Perara v. The
King (2 . The respondents in this case have done nothing to
obstruct or interfere with the lawful powers of the Court by
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acting bona fide and discharging statutory functions under
the Commission of Inquiry Act. We therefore, see no
justification for holding that the issue of the notification
under S. 3 of the Act or the conduct of the Inquiry by
respondents amount to contempt of Court. We accordingly
reject the argument of Mr. Asoke Sen on this aspect of the
case.
It is for these reasons that we have dismissed these Civil
Appeals by our order, dated April 16, 1968. One set of
hearing fee.
V.P.S. Appeals dismissed.
(1) [1900] 2 Q. B. 36.
(2) [1951] A. C. 482, 488.
810