Saritha S. Nair v. State of Kerala and Others (W.P.(C).No. 16752 of 2014 (T))

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE THURSDAY, THE 24TH DAY OF JULY 2014/2ND SRAVANA, 1936** ## **WP(C).No. 16752 of 2014 (T)** **---------------------------------------** **PETITIONER:** ## **-------------------** **SARITHA S.NAIR, AGED 35 YEARS, D/O.SOMARAJAN NAIR, VATTAPPARA PADINJARETHIL HOUSE, KEEZHENCHERRY, MELMURIYIL, CHENGANNOOR, ALAPPUZHA.** **BY ADVS.SRI.S.RAJEEV, SRI.K.K.DHEERENDRAKRISHNAN.** **RESPONDENTS:** **-----------------------** **1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE SECRETARY TO HOME DEPARTMENT, GOVERNEMNT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **3. THE PRINCIPAL SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** ## **BY SR.GOVERNMENT PLEADER SRI. K.C. VINCENT.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C).NO.16752/2014 - T:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1: TRUE COPY OF THE NOTIFICATION DATED 28/10/2013 BEARING NO.77989/SSA2/2013/HOME ISSUED BY THE GOVERNMENT OF KERALA.** **EXHIBIT P2: TRUE COPY OF THE NOTIFICATION DATED 5/3/2014.** **EXHIBIT P3: TRUE COPY OF THE NOTICE DATED 3/5/2014 ISSUED TO THE PETITIONER BY THE SOLAR SAM INQUIRY COMMISSION.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **A. MUHAMED MUSTAQUE, J.** **----------------------------------------** W.P.(C) No. 16752 OF 2014 ----------------------------------------------Dated this the 24[th] day of July, 2014 ## **JUDGMENT** This writ petition is filed challenging constitution of a Commission of Inquiry by the Government of Kerala as per Ext.P2 notification. 2. The writ petitioner was directed to appear before the Commission of Inquiry by Ext.P3 notice pursuant to constitution of the Commission of Inquiry. The terms of reference of the Commission are enumerated in the notification, which are as follows: - i. Whether there is any substance in the allegations related to the solar scam and allied financial transactions raised in the floor of the Kerala Legislative Assembly and outside? If so what? Who are the persons responsible for the same? - ii. Whether the Government have sustained any financial loss in connection with the transactions involved in the said allegations? If so how much? Whether this could have been avoided? Who are the persons responsible for the same? - iii. Whether the Government have issued any work orders or any other orders illegally to the company or persons involved in the said allegations referred above? If so whether the Government have sustained any financial loss on that behalf? If so how much? Whether this could have **2** _W.P.C.No.16752 OF 2014_ been avoided? Who are responsible for the same? - iv. Whether any lapse occurred in dealing with the complaints being raised since 2005 with regard to the persons involved in the solar scam and allied financial transactions? If so, who are responsible for them? - v. Whether the existing laws and arrangements are adequate to prevent cheating and deception of the public extensively by giving false promises and to take action against these? If not, what are the suggestions for making stringent laws and for taking other appropriate measures to eliminate such cheating and deception? - vi. Suggestions to get back the amount lost to those who are subjected to financial scams as referred above? 3. The notification is challenged on the ground that the purpose of making inquiry does not constitute any matter of public importance in terms of Section 3 as provided under the Commission of Inquiry Act, 1952. Petitioner also points out to Ext.P3 notice issued to her and submits that though Inquiry Commission is constituted for the purposes mentioned as above, petitioner has been asked to submit details mentioned in the notice, which is the subject matter of the ongoing investigation against her. Petitioner further submits that details elicited in Ext.P3 notice would go to show that this inquiry is directed against the petitioner, as individually, and not for any matter of **3** _W.P.C.No.16752 OF 2014_ public importance. 4. The power of the Government to constitute a Commission is mentioned under Section 3 of the Act which reads as follows: **3. Appointment by Commission** .-(1) [Save as otherwise provided in the Lokpal and Lokayuktas Act, 2013, 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 [each House of Parliament or, as the case may be, the Legislature 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: Provided that where any such Commission has been appointed to inquire into any matter- (a) by the Central Government, no State Government shall, except with the approval of the Central Government, appoint another Commission to inquire into the same matter for so long as the Commission appointed by the Central Government is functioning; (b) by a State Government, the Central Government shall not appoint another Commission to inquire into the same matter for so long as the Commission appointed by the State Government is functioning, unless the Central Government is of opinion that the scope of the inquiry should be extended to two or more States. **4** _W.P.C.No.16752 OF 2014_ (2) The Commission may consist of one or more members appointed by the appropriate Government, and where the Commission consists of more than one member, one of them may be appointed as the Chairman thereof. [(3) The appropriate Government may, at any stage of an inquiry by the Commission fill any vacancy which may have arisen in the office of a member of the Commission (whether consisting of one or more than one member.)] [(4) The appropriate Government shall cause to be laid before [each House of Parliament or, as the case may be, the Legislature of the State], the report, if any, of the Commission on the inquiry made by the Commission under sub-section (1) together with a memorandum of the action taken thereon, within a period of six months of the submission of the report by the Commission to the appropriate Government. 5. Learned counsel for the petitioner relies on the decision of a Division Bench of this Court in **P.K. Kunju v. State of Kerala [1970 KLT 77],** in a matter arising from an order challenging constitution of the Commission of Inquiry, wherein it was observed in Para 5 as follows: “5. That the exercise of a statutory power for an unauthorised purpose, or even professedly for an authorised purpose, but in fact for a different one with an ulterior object, would vitiate the exercise of power, is clear and well settled. The proposition as such was not disputed, and could not be disputed.” _W.P.C.No.16752 OF 2014_ **5** and further observed in paragraph 7 as follows: “It is clear therefore that if the Government were of opinion that a definite matter of public importance had to be investigated, a commission of enquiry could be set up under the provisions of the Act. But what has been alleged for the petitioner is that his protests against the actions of the 3[rd] respondent and the Ministry had so very much incensed the 3[rd] respondent and his party bosses that they bided their time, and allowed these smouldering embers to be stirred into a blaze by the impugned proceedings, constituting a Commission of Inquiry.” Therefore, in the light of above decision, the learned counsel submits that this inquiry is directed against the petitioner and not for making any inquiry of a definite nature having public importance. 7. The terms of reference do not indicate that it is intended against any particular individual. On the other hand, it discloses that the inquiry is necessitated in relation to the investment relating to solar scam and to have regulatory measures/legislations in order to prevent happening of such scam in the future. The matter of public importance depends upon factual situations in which Government has to take a decision to constitute a Commission. The purpose of such Commission is to **6** _W.P.C.No.16752 OF 2014_ ensure that Government will be in a position to act on suggestions as a result of inquiry made by the Commission of Inquiry. Decision of the Government in such circumstances cannot be questioned by a person who received a notice pursuant to constitution of the Commission. As has been noted, nowhere, in the terms of reference the name of the petitioner has been mentioned. It might be a fact that constitution of Commission was necessitated on account of a business which petitioner alleged to have been carried in the State of Kerala and in respect of which certain criminal investigations are going on. But that cannot be a reason to say that it was individually directed against the petitioner. Therefore, I am of the view that challenge of the petitioner regarding the constitution of Commission of Inquiry must fail. The petitioner's grievance that certain questions elicited in Ext.P3 notice, are beyond the scope of inquiry and are only initiated to target the petitioner, are matters that cannot be decided in a proceedings under Article 226 of the Constitution of India questioning the validity of the constitution of the Commission. I do not find any sustainable reasons against constitution of the Commission, for interference, by invoking powers under Article _W.P.C.No.16752 OF 2014_ **7** 226 of the Constitution of India. If petitioner has any grievance against Ext.P3 notice, the petitioner has the liberty to raise such objections before the Commission of Inquiry. Leaving open with such liberty, this writ petition is dismissed in limine. Sd/- **A. MUHAMED MUSTAQUE** , **JUDGE** sd // TRUE COPY // P.A. TO JUDGE