Peela Pothi Naidu And Ors. vs State Of A.P., Irrigation And Cad … on 26 April, 2005

JUDGMENT

T. Meena Kumari, J.

1. Since the issues of facts and law involved in all these writ petitions are inter-related and arise out of a single Government Order, they are clubbed and heard together and they are being disposed of by this common judgment.

2. The petitioner in W.P. No. 14110 of 2004 and W.P.No. 18791 of 2004 is Sri Peela Pothi Naidu, Advocate whereas the petitioners in W.P. No. 1364 of 2005 are Telugu Desam Party rep. by its Secretary Sri Kadiam Srihari and Sri Ashok Gajapathi Raju, former, Minister. In W.P. No. 1364 of 2005, a Freelance Journalist-Mr. ABK Prasad and several other Members of Legislative Assembly got impleaded as respondents 4 to 14.

3. The petitioner in W.P. No. 14110 of 2004 sought the relief of issuance of Quo Warranto against the third respondent i.e., Sri Justice B.K. Somasekhara (Retd) and consequently to set aside the G.O. Ms. No. 58 I&CAD (P.W.GV.3) Department dated 22-6-2004 published in A.P. Gazette Part I Extraordinary No. 243-C dated 22-6-2004 issued by the first respondent, as illegal, arbitrary, contrary to law and the provisions under the Commissions of Inquiry Act, 1952 (for short ‘the Act’) and violative of Articles 14 and 21 of the Constitution of India, whereas the relief sought for in WP No. 18791 of 2004 is to issue a Writ of Prohibition against the third respondent i.e., Sri Justice B.K. Somasekhara from functioning as Commission of Inquiry as per G.O.Ms.No. 58 I&CAD (PW-GV3) Department dated 22-6-2004. In WP No. 1364 of 2005, the petitioner prayed this Court to issue a writ of Mandamus declaring the said G.O. Ms.No. 58 dated 22-6-2004 as arbitrary and illegal and also to declare the entire proceedings of the second respondent-Commission subsequent to its revival as being vitiated by bias of the third respondent and for a consequential direction to the third respondent to forbear from continuing with the enquiry by the second respondent Commission.

4. As stated above, in all these writ petitions, the petitioners question the issuance of G.O.Ms.No. 58 I&CAD (PW-GV3) Department dated 22-6-2004 by reconstituting the Sri Justice B.K. Somasekhara Commission after withdrawing G.O.Ms.No. 544 Revenue (LA) Department dated 4-8-2001 and G.O.Ms. No. 553 Revenue (LA) Department dated 8-8-2001 under which the Government have formed opinion that the continued existence of the Commission is unnecessary and thereby the Government of Andhra Pradesh directed that the Commission of Inquiry shall be deemed to have ceased to exist with effect from the first day of December, 1999. In the said GO i.e., G.O.Ms.No. 58 dated 22-6-2004, it was directed that Commission of Inquiry is deemed to have continued with retrospective effect i.e, from 1st December, 1999 and the aforesaid Commission shall continue its inquiry from where it was stopped.

5. The undisputed facts remain that the State Government at the first instance appointed a Commission of Inquiry vide G.O.Ms. No. 468 Revenue (LA) Department dated 2-6-1997 to conduct inquiry into certain irregularities and acts of corruption in passing awards and payment of compensation in the acquisition of lands in Yeleru Reservoir by Justice B.K. Somasekhara by exercising its powers under Section 3(1) of the Commissions of Inquiry Act, 1952 on the following terms:

“1. to inquire into the nature and the details of the procedure financial and legal irregularities committed by any person or persons in the above said land acquisition matter,

2. to establish acts of commission and omission on the part of the official functionaries in the Government, Judiciary including Law Officers and others who are alleged to be involved in the alleged irregularities,

3. to inquire into the nature and the extent of complicity on the part of any person or persons and also the role of outside influence, if any,

4. to suggest ways and means of improving the existing system and procedures including changes in the statute, to prevent recurrence of similar or such irregularities;

5. to suggest Action/Actions on any person/persons in the matter.”

6. The appointment of the Commission in G.O.Ms.No. 468 Revenue (LA) Department dated 2-6-1997 was questioned before this Court in WP No. 14282 of 1998 and a Division Bench of this Court has quashed the said G.O.Ms.No. 468 dated 2-6-1997 by its judgment dated 23-6-1999. Aggrieved by the said judgment, one Sri P. Janardhana Reddy, present MLA carried the matter to the Supreme Court and the Supreme Court vide its judgment in Civil Appeal No. 4138/2001 with No. 4139/2001 dated 13-7-2001 set aside the judgment of this Court in W.P.No. 14282 of 1998, with the following observations:

“Testing the case on hand on the touchstone of the principles laid down in the aforementioned decided cases, we find that the High Court has not held that there was no material or an objection of real nature to form the basis for the subjective satisfaction of the State Government that the matter is one of definite public importance into which an inquiry is necessary to be made. In the present case the exercise regarding payment of compensation was mostly based on records. In such a matter there is little scope to contend that the criticisms are merely on some vague allegations or hearsay evidence or the intention is to make a fishing inquiry.

16. On a careful consideration of the entire matter, we are not persuaded to accept the view taken in the judgment of the High Court quashing the appointment of the Commission of inquiry under the Act. Accordingly the appeals are allowed and the judgment under challenge is set aside. There will however be no order for costs.”

7. The material filed along with these writ petitions would further go to show that the Government of Andhra Pradesh have issued G.O.Ms.No. 544 Revenue (LA) Department dated 4-8-2001 invoking the powers conferred under Clause (a) of Sub-section (1) of Section 7 read with Sub-section (2) of Section 7 of the Commissions of Inquiry Act, 1952 directing that the Commission of Inquiry shall be deemed to have ceased to exist with effect from the first day of December, 1999. The Government also issued another G.O.Ms. No. 553 Revenue (LA) Department dated 8-8-2001 making amendment to the orders issued in G.O.Ms.No. 544 Revenue (LA) Department dated 4-8-2001, which reads as follows:

“For para 7 of the orders issued in G.O.Ms.No. 544 Revenue (LA) Department, dated 4-8-2001, the following shall be substituted; namely:-

‘7. And whereas the Government are of the opinion, after detailed consideration of the matter and on examining all facts and circumstances pertaining to the case, that the continued existence of the Commission is unnecessary. Now, therefore, in exercise of powers conferred under Clause (a) of Sub-section (1) of Section 7 read with Sub-section (2) of Section 7 of the Commissions of Inquiry Act 1952 (Central Act 60 of 1952), the Governor of Andhra Pradesh, hereby, direct that the aforesaid Commission of Inquiry shall be deemed to have ceased to exist with effect from the 1st day of December, 1999.”

8. Further, it is to be noted that the above said Gos i.e., G.O.Ms.No. 544 and 553 have been questioned before this Court by filing W.P. No. 21111 of 2001 and a Division Bench of this Court has held that the Supreme Court did not set aside the judgment of the High Court on the ground that it was desirable to continue the Commission and that after the judgment of the Supreme Court, the Commission did not automatically come into being again and hence the said Writ Petition was dismissed. The observations made by this Court in W.P. No. 21111 of 2001, which are relevant, are extracted hereunder:

“Now, the only argument that remains is whether the Supreme Court had directed continuance of Commission. This was one of the arguments made by the learned counsel for the petitioners. We have gone through the judgment of the Supreme Court. The Supreme Court was only dealing with the order of the High Court by which the Commission’s appointment had been quashed. At no point of time the Supreme Court considered the desirability of continuance of the Commission. The controversy before the Supreme Court was in a short compass as to whether High Court has passed a correct judgment in quashing the appointment of the Commission and whether the High Court was right in coming to the conclusion that Government had not used its discretion in appointment of the Commission and it had only been appointment at the instance of the High Court and to those questions the Supreme Court answered that the High Court had taken a hypertechnical view of the matter, the Chief Minister had stated on the floor of the Assembly that the Government was prepared to appoint a Commission and the learned Advocate General had made a submission to that effect before the High Court when High Court passed the order. The High Court by passing the order had merely recognized the willingness of the State Government to appoint a Commission, therefore, even when the Commission had been appointed in the first instance it had been appointed by the State Government alone and the High Court had only recognized the fact while disposing of the Writ Petition. Therefore, the Supreme Court set aside the judgment of the High Court. The Supreme Court did not set aside the judgment of the High Court on the ground that it was desirable to continue the Commission. After the Supreme Court passed its order the Commission did not automatically come into being again. Its term had expired on 1 -3-1999 and it was again for the State Government to consider whether its life had to be extended or it had to be allowed to die. We have found sufficient reasons given by the State Government for coming to a conclusion that it was not necessary to continue the Commission beyond 1-3-1999.”

9. While the matter stood thus, the Government of Andhra Pradesh by invoking its powers under Sub-section (1) of Section 3 of the Commissions of Inquiry Act, 1952 (Central Act 60 of 1952) issued G.O.Ms.No. 58 I & CAD (PW-GV3) Department dated 22-6-2004 withdrawing the earlier G.O.Ms. Nos. 544 and 553. It is also stated in the said GO that the said Commission of Inquiry is deemed to have continued with retrospective effect i.e., from 1st December, 1999 and the aforesaid Commission shall continue its inquiry from where it was stopped. Questioning the said GO, the present writ petitions have been filed.

10. Most of the respondents have filed counters denying the averments made in the writ affidavits. The contents of the same would be dealt with in the following discussion at appropriate places.

11. Heard Sri Ramesh Ranganathan for Sri Dammalapati Srinivas and Sri M.V. Rajaram for the petitioners; and the learned Advocate General for the Government, Sri S.S. Prasad, the learned Senior Counsel and Sri S.R. Ashok, the learned Senior Counsel and Sri K. Ashok Reddy for impleaded respondents.

12. It has been contended by the learned counsel Sri Ramesh Ranganadhan that the State Government have no power whatsoever to withdraw the G.O.Ms.Nos. 544 and 553 since the validity of the same have attained finality by virtue of the judgment of this Court in W.P. No. 21111 of 2001 dated 24-1-2003 and that the Commission ceased to exist in pursuance of the orders passed by the Government on 4-8-2001 and 8-8-2001 respectively. It is also argued that by invoking the powers under Clause (a) of Sub-section (1) of Section 7 read with Sub-section (2) of Section 7 of the Commissions of Inquiry Act, 1952, the Government have passed orders earlier holding that the Commission of Inquiry shall be deemed to have ceased to exist with effect from the 1st day of December, 1999. In view of the fact that the Commission ceased to exist, the Government have no power whatsoever to invoke the provisions of Sub-section (1) of Section 3 of the Commissions of Inquiry Act to withdraw the earlier GOs and to continue the commission with retrospective effect from 1-12-1999. It has also been argued that even assuming that the Government have got power to resume the Commission under Section 21 of the General Clauses Act, the said clause can be invoked during the existence of the Commission but not when the Commission ceased to exist, by virtue of the orders of the Government. It has been further argued that there is no fresh material available with the Government to revive the Commission by virtue of the impugned GO. It has also been argued that the Government cannot be allowed to take a stand of their own contrary to the stand taken in the counter filed in W.P. No. 21111 of 2001. It has also been contended that the judgment in W.P. No. 21111 of 2001 dated 24-1-2003 has attained finality in view of the fact that no appeal has been carried to the Supreme Court. Further, it is contended that the present G.O.Ms.No. 58 dated 22-6-2004 has been issued without taking into consideration the judgment of this Court in W.P. No. 21111 of 2001 dated 24-1-2003. It has also been argued that there are no warranting circumstances to reconstitute the Commission and that the impugned GO has been issued without application of mind. Lastly, it has been contended that the impugned GO was issued with ulterior motive and that the Commission of Inquiry is functioning with bias towards the petitioners. The emphatical argument of the petitioners with regard to attacking of the Commission on the question of bias is that Sri Justice B.K. Somasekhara has been refusing to adjourn the matter and he has also putting so many irrelevant questions and that at one time, one of the Officers of the Commission handed over a copy of the news paper to the witness but the Commission has noted in the deposition that the paper has been produced by the witness himself. The learned counsel for the petitioner has filed transcription of the proceedings that underwent between the second petitioner in W.P. No. 1364 of 2005 and the Commission to prove their case of bias.

13. Further, it is also argued that formation of the opinion to arrive at the conclusion that the continuation of the Commission is necessary by virtue of the impugned GO is based on non-existing circumstances. It has also been argued before this Court by relying on the provisions of the Commissions of Inquiry Act, 1952 that Section 3 of the Commission of Enquiry deals with the appointment and Section 7 of the Act deals with the power of the Government to issue a notification to declare if it is of the opinion that the continued existence of the Commission is unnecessary. It has also been argued that under Sub-section (2) of Section 7 of the Act, the Commission shall cease to exist with effect from the date specified therein. Further, it has been argued that Section 21 of the General Clauses Act, for amending or rescinding, cannot be an independent source of power in the absence of any power conferred under the Statute.

14. In the background of the circumstances of the case, the Government have taken a conscious decision to wind up the Commission as not necessary by virtue of issuance of G.O.Ms.Nos. 544 Revenue (LA) Department dated 4-8-2001 and G.O.Ms. No. 553 Revenue (LA) Department dated 8-8-2001 and this Court has upheld those Gos in its judgment in W.P. No. 21111 of 2001 dated 24-1-2004 which has attained finality. It has also been argued that even assuming that the Government have power to revive the Commission under Section 21 of the General Clauses Act, it can be invoked only after giving a notice to the affected parties; otherwise it amounts to violation of principles of natural justice. It has also been argued that the Government have to form its opinion for continuation of the Commission which was ceased to exist long back. But, in this case, it has been contended that, as per the impugned GO, it is not discernable that the Government has formed its opinion. It has further argued that the Commission can be reconstituted only under Section 3 of the Commissions of Inquiry Act, 1952 to fill up any vacancy which may have arisen in the office of a member of the Commission. It has also been further argued that the Commission ceases to exist when the Commission made its report; secondly, when a vacancy arises by virtue of the member vacating the said office of the Commission. In the absence of any of the circumstances as detailed above, the Government has no power whatsoever to reconstitute the Commission by withdrawing the earlier Government Orders which have been upheld by this Court.

15. Sri M.V. Rajaram also submitted his arguments more or less on the lines of Sri Ramesh Ranganathan.

16. In reply thereto, the learned Advocate General has argued that the power of the State Government to issue the impugned GO is available under Section 3 of the Act and the earlier Gos i.e., G.O.Ms.Nos. 544 and 553 were issued upon the Government having come to the conclusion that the continuation of the Commission is not necessary. But the terms of reference will remain in force in view of the fact that the Apex Court in its judgment in Civil Appeal No. 4138 of 2001 with No. 4139 of 2001 dated 13-7-2001 has set aside the judgment of a Division Bench of this Court in W. P. No. 14282 of 1998 dated 23-6-1999 quashing the appointment of the Commission and hence in the terms of reference of public importance, the Government have felt it necessary to continue the Commission and thereby the Government issued the impugned GO constituting the Commission by withdrawing the earlier Gos i.e., G.O.Ms.No. 544 and G.O. Ms. No. 553 and directed the Commission to submit its report within a period of six months and hence the Commission started functioning. It has also been argued that in view of the fact that the terms of the reference as contained in the original GO i.e., G.O.Ms.No. 468 dated 2-6-1996 still remain intact and by taking into consideration the observations of the Apex Court that the matter is of public importance, the impugned G.O.Ms.No. 58 dated 22-6-2004 has been issued. It has also been argued that in view of the fact that Sri Justice B.K. Somasekhara expressed his willingness to preside the Commission, the Government have felt it necessary to continue the Justice B.K. Somasekhara Commission from the stage it stopped its functioning.

17. With regard to bias attributed to the Commission, Sri C.V. Mohan Reddy, the learned counsel appearing for Sri Justice B.K. Somasekhara argued that bias cannot be attributed to the Commission and the Commission has to enquire into all the matters and hence it started putting questions as it is a fact finding authority. It has also been argued that the second petitioner in W.P. No. 1364 of 2005 never protested while signing the deposition attributing mala fides much less bias to the Commission, nor can the second petitioner in W.P. No. 1364 of 2005 have any grievance against the Commission. The learned counsel has also submitted that the Commission is ready to submit the video graph proceedings for perusal of this Court so as to assess the allegation of bias.

18. Sri S.S. Prasad, the learned Senior Counsel, who made his appearance for some of the impleaded party respondents, contended that the appointment of the Commission is in pursuance of the powers conferred under Section 3 of the Act and as the Government felt in the year 2001 that there was no necessity to continue the Commission, it has passed the orders declaring that the Commission ceased to exist by invoking its powers under Section 7 of the Act. But, the Government having felt that there is necessity to continue/revive the Commission, it has issued the present GO and hence the same cannot be found fault with in view of the fact that the terms of reference are of public importance in nature. Under the above circumstances, it has also been argued that the writ petitions have been filed only to stall the proceedings of the Commission and that the petitioners did not approach the Court with clean hands.

19. The learned Senior Counsel has also argued that the Government have got power to review the constitution of the Commission under the administrative action. It has also been contended that even though this Court in judgment in W.P. No. 21111 of 2001 reached its conclusion that the Government have power to discontinue the functioning of the commission by way of G.O.Ms.Nos. 544 and 553 and the said Judgment has become final, still the Government have got its power to reconstitute the Commission on the administrative side in view of the fact that the subject still survives. It is also further argued that in view of the provision under Section 21 of the General Clauses Act, the Government have the power to issue, to include power to add to, amend, vary or rescind, notification, orders, rules or bye-laws and in view of the above provision, the Government have the power to reconstitute the Commission and it cannot be questioned by the petitioners herein.

20. The learned Senior Counsel Sri S.R. Ashok appearing for another set of implead party respondents argued that the purpose and rationality of the appointment of the Commission has to be looked into with reference to the public importance irrespective of the fact that a Division Bench of this Court in its judgment in W.P. No. 21111 of 2001 dated 24-1-2004 has upheld the validity of G.O.Ms.Nos. 544 and 553. It has also been argued that in view of the judgment of the Supreme Court in Civil Appeal No. 4138 of 2001 dated 13-7-2001, the learned counsel has argued that the ratio laid down by the Division Bench of this Court in W.P. No. 21111 of 2001 has to be declared as per incuriam. It has also been argued that any public authority should welcome the action of the Government in continuing the Commission in view of the fact that they should not run away from the Commission. It has also been argued that the law laid down in the case of State of M.P. v. Ajay Singh, cannot be a tilting factor in favour of the petitioners.

21. It has been argued that in view of the fact that the purpose of constitution of the Commission still survives, the judgment rendered by the Division Bench of this Court based on the material available on record cannot operate as res judicata with regard to interpretation of statutes and there is no provision in the statute which can be termed as ‘suspended animation.’ It has also been further argued that a Division Bench of this Court in W.P. No. 21111 of 2001 has upheld issuance of G.O.Ms.Nos. 544 and 553, it has never opined that the Government should not revive the Commission. In nut-shell, the arguments of the learned counsel for the respondents are that the Government have the power to revive the commission and that bias cannot be attributed to the Commission.

22. Both the counsel have relied upon number of judgments in support of their contentions. However, both the counsel have placed much reliance upon the judgment of the Supreme Court in the case of Ajay Singh (1st supra). The judgments on which both the parties rely on will be dealt with at the relevant stages.

23. Before going into the contentions raised by the learned counsel for the parties, it is apt to note down the relevant provisions of the Act for ready reference:

“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 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) xxx

(b) xxx

(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) xxx”

24. Section 4 of the Act contemplates with the Powers of Commission. Section 5 of the Act confers Additional Powers to Commission. Section 5-A of the Act is with regard to the power of Commission to utilize the services of certain officers and investigation agencies for conducting investigation pertaining to inquiry. Section 6 of the Act is with regard to the Statements made by persons to the Commission.

25. Section 7 of the Act deals with the functioning of the Commission as ‘ceased to exist’ when so notified by the appropriate Government. The said Section reads as follows:

“COMMISSION TO CEASE TO EXIST WHEN SO NOTIFIED.- (1) The appropriate Government may, by notification in the Official Gazette, declare that-

(a) a Commission (other than a Commission appointed in pursuance of a resolution passed by each House of Parliament or, as the case may be, the Legislature of the State) shall cease to exist, if it is of opinion that the continued existence of the Commission is unnecessary.

(b) a Commission appointed in pursuance of a resolution passed by each House of Parliament or, as the case may be, the Legislature of the State shall cease to exist if a resolution for the discontinuance of the Commission is passed by each House of Parliament or, as the case may be, the Legislature of the State.

(2) Every notification issued under Sub-section (1) shall specify the date from which the Commission shall cease to exist and on the issuance of such notification, the Commission shall cease to exist with effect from the date specified therein.”

26. Section 8 of the Act lays down the procedure to be followed by the Commission. Section 8-A of the Act says that Inquiry not to be interrupted by reason of vacancy or change in the constitution of the Commission and Section 8-B of the Act deals with the persons likely to be prejudicially affected to be heard. Section 9 of the Act gives protection of action taken in good faith. Section 10 of the Act says that the Members etc. of the Commission are the public servants. Section 10-A of the Act deals with the penalty for acts calculated to bring the Commission or any member there of into disrepute. Section 11 of the Act is with regard to Act to apply to other inquiring authorities in certain cases. Section 12 of the Act deals with power to make rules.

27. As per Section 3(1) of the Act, the appropriate Government may, if it is of opinion that it is necessary so to do, by a notification in the Official Gazette, appoint a Commission of Inquiry for the purpose of making an inquiry into a definite matter of public importance and the Commission so appointed shall make an enquiry and perform the functions. The fact remains that the condition prescribed for appointment of Commission is that there should be definite matter of public importance and appointment should be by way of publication of notification in the official gazette. In view of the language used in Section 3 of the Act, it is not in dispute that the appropriate Government can appoint a Commission for the purpose of making an inquiry into the matter of public importance. This view of ours is fortified by the decision of the Apex Court in the case of Ram Krishna Dalmia v. Justice Tendolkar, .

28. Section 3 of the Act also permits for reconstitution of the Commission by filling up the vacancy in the office of a member of Commission. Since, there is no other member in the present Commission, the Government has continued Justice B.K. Somasekhara by issuing the impugned G.O.Ms.No. 58 dated 22-6-2004. In the background of narration of the facts as stated above and in view of the litigation between the parties, the fact remains that the Supreme Court in its judgment in Civil Appeal No. 4138 of 2001 dated 13-7-2001 set aside the judgment of a Division Bench of this Court in W.P. No. 14282 of 1998 dated 23-6-1999, in which this Court quashed the appointment of Sri Justice B.K. Somasekhara Commission. However, it is pertinent to note that when the Government felt that it is not necessary to continue the existence of the Commission, the Government of Andhra Pradesh issued G.O.Ms. No. 544 Revenue (LA) Department dated 4-8-2001 and G.O.Ms.No. 553 Revenue (LA) Department dated 8-8-2001 putting an end to the existence of the Commission w.e.f. 1-12-1999. As stated above, the said Government Orders were questioned before this Court in W.P. No. 21111 of 2001 and a Division Bench of this Court dismissed the said Writ Petition while upholding the validity of the said Government Orders and thereby the Commission has ceased to exist from 1-12-1999.

29. Now, this Court has to examine whether there are any valid circumstances that prompted the Government to reconstitute the Commission by issuing impugned G.O.Ms. No. 58 dated 22-6-2004; and whether the Government have the power to do so under the Commissions of Inquiry Act, 1952.?

30. Before going into the above questions, this Court wants to place reliance on the stand taken by the Government as stated at paragraphs 48 to 51 of the counter in the earlier round of litigation in W.P. No. 21111 of 2001, which read as follows:

“48. With reference to paragraph 3.9 of the affidavit the contention, that the terms of reference of the Commission of Inquiry are still relevant, is without any basis, in as much as the Government, after careful consideration of all relevant aspects, issued orders that the Commission of Inquiry shall be deemed to have ceased to exist with effect from 1st December, 1999.

49. With reference to Paragraph 3.10 of the affidavit it is submitted that the Government, after careful consideration of the matter, was of the view that no useful purpose would be served by continuing/reviving the Commission of Inquiry especially when the criminal cases, disciplinary proceedings, Land Acquisition Appeals and Restitution petitions have all reached an advanced stage. It is not open to the Petitioner to sit in appeal over the said decision of the Government. The contention that valuable public time and money spent on the Commission of inquiry will go down the drain is also not tenable. At the cost of repetition, it is submitted that the real culprits will not go scot-free, and that disciplinary action has been initiated/criminal cases have been instituted against them, which are all at an advanced stage.

50. With reference to Paragraph 3.11 of the affidavit, it is submitted that the aspect of complicity, of the officers mentioned, has been gone into by Sri K. Swaminathan, IAS, who was appointed as the enquiry officer, and he has held that the said senior officers cannot be considered to have committed any lapses. It is relevant to submit that against the order of the Central Administrative Tribunal in O.A. No. 1010/2001 dt. 10-8-2001, the Government preferred W.P. No. 19111/2001 before this Hon’ble Court and this Hon’ble Court by order in WPMP No. 24044/2001 in W.P. No. 19111/2001 dated 18-9-2001, was pleased to suspend the operation of the order in O.A.No. 1010/2000. It is not the intention of the Government, that the entire matter be wrapped under the carpet, and these wild and baseless allegations are resorted only to gain political mileage.

51. With reference to Paragraph 3.12 of the affidavit it is submitted that the tenure of the Commissioner ended by 1-12-1999. The Government after careful consideration of the matter, issued orders in G.O.Ms.No. 544 dated 4-8-2001 as amended in G.O.Ms. No. 553 dated 8-8-2001 directing that the Commission of Inquiry is deemed to have ceased to exist with effect from the 1st day of December, 1999. The orders, in G.O. Ms.No. 544 and 553, were issued in exercise of powers conferred under Clause (a) of Sub-section (1) of Section 7 read with Sub-section (2) of Section 7 of the Commissions of Inquiry Act, 1952. As such the question of the Commission of Inquiry completing its enquiry and submitting its report does not arise.”

31. It is argued by the learned Advocate General and the learned counsel appearing for the unofficial respondents that the Government have the power of rescinding the earlier Government Orders by invoking the powers under Clause 21 of the General Clauses Act. It is further argued that under Section 3 (1) of the Act, the Government has the power to reconstitute the Commission. It has also to be noted that in the counter filed by the Government in the present writ petition, it is stated at paragraph 7 that it would be open to the Government to consider the matter and form its opinion as to whether the term of the Commission of Inquiry has to be extended or otherwise. Till such time as the Government passes an order of extension of the term of the Commission of Inquiry, the legal position would be that the initial appointment of the Commission of Inquiry would be valid but the Commission would cease to exist on the expiry of the original period. It has also been stated at paragraph 13 as follows:

“xxx As observed by the Supreme Court in the judgment , the inquiry by the Commission, inter alia facilitates rectification and prevention of recurrence of such lapses and securing the ends of justice and establishing a moral public order in future. Incidentally, the terms of reference of the Inquiry by the Commission are enumerated hereunder:

1. to enquire into the nature and the details of the procedural, financial and legal irregularities committed by any person or persons in the above said land acquisition matter;

2. to establish acts of commission and omission on the part of the official functionaries in the Government, judiciary including Law Officers and others who are alleged to be involved in the alleged irregularities;

3. to inquire into the nature and the extent of complicity on the part of any person or persons and also the role of outside influence, if any;

4. to suggest ways and means of improving the existing systems and procedures including changes in the statute, to prevent recurrence of similar or such irregularities;

5. to suggest action/actions on any person/persons in the matter.

Of the above terms of reference, item No. 4 is very important in that it enables the Government to take necessary further action to improve existing system, and procedures including changes in the statutes to prevent recurrence of similar or such irregularities by eliciting the actual facts. This apart, the Inquiry report of the Commission has to be placed before the Legislative Assembly of the State, along with the Memorandum of action taken thereon within six months of the submission of the Report in terms of Section 3 (4) of the Act. Thus, it affords an opportunity to the Hon’ble Members of the Legislative Assembly to offer their valuable suggestions on improving the existing systems and to take necessary corrective measures under the relevant statutes, in matters of public importance. This would go a long way in maintaining the purity and integrity of administration in the State. It is with this avowed objective only that the Commission of Inquiry was revived by the State Government and not with any other intention whatsoever.”

32. It is also stated in the counter that in view of the observations made in W.P. No. 21111 of 2001 dated 24-1 -2003, it is for the Government to consider whether its life had to be extended or it had to be allowed to die. In view of the stand taken by the first respondent i.e., the Government in the above counter, it has to be examined what is the power of the Government to reconstitute the Commission in the background of the particular circumstances of the case and also with reference to the provisions of the Commissions of Inquiry Act and also the judgment rendered by the Supreme Court and of this Court in the earlier round of litigation.

33. The Commissions of Inquiry Act, 1952 is a special enactment which provides for the appointment of the Commissions for the purpose of inquiry. Under Clause (b) of Section 2 of the Act ‘Commission’ means a Commission of Inquiry appointed under Section 3 of the Act. The provisions of Section 3 of the Act goes to show that the appropriate Government has got power to appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance. The relevant provision, which deals with the term or the tenure of the Commission of Enquiry, is Section 7 (1)(a)(b) and Section 7(2) of the Act. As per Section 7(1) (a) of the Act, the appropriate Government may declare that if it is of the opinion that the continued existence of the Commission is unnecessary, it can issue a notification thereby the Commission ‘shall cease to exist’. The record goes to show that in exercise of powers under the said provision, the Government issued G.O.Ms.Nos. 544 and 553 putting an end to the existence of the Commission. The learned Advocate General submits that in view of the observations made by this Court, while dealing with the validity of the said GOs in W.P. No. 21111 of 2001, that it is for the Government to consider whether its life had to be extended or it had to be allowed to die, the Government thought it fit for reconstitution of the Commission and hence invoked the power under Section 3 of the Act and reconstituted the Commission in view of the fact that the matter in question is of public importance.

34. At this juncture, it has to be seen whether the Act confers power on the State Government to revive the Commission, which was closed by the Government, vide GO Ms.Nos. 544 and 553. In this context, it has to be observed that a reading of the provisions of the Commissions of Inquiry Act, goes to show that either (sic. neither) the definition clauses or (sic. nor) the powers conferred under the Act empower the Government for reviving the Commission which was ceased to exist. The word ‘cease’ has been defined in Strouds Judicial dictionary as ‘to put an end to’, ‘to put a stop’ and ‘to come to an end.’ The Law Lexicon defined the word ‘exist’ as ‘to have an existence, to live’. Thus, the expression in Section 7 (2) of the Act’ ceased to exist’ means that the life of the commission has to come to an end once for all. When the commission has come to an end once for all, the Act should provide a provision for revival of the commission which has come to an end. It is not the case of the Government that it has got implied power to revive the Commission. In the absence of such argument, it has to be seen whether the Government has got any power to revive the Commission after it was ceased to exist by the Government through its earlier G.O.Ms.Nos. 544 and 553.

35. It is to be seen that the power conferred under Section 3 of the Act is for the appointment of the Commission and the provisions under Section 7 of the Act control the tenure of the Commission. The power conferred under Section 3 of the Act is for appointment of the Commission and not for revival. As on the date of 1-12-1999, the Commission was not in existence and it ceases to exist basing on the opinion formed by the Government. Under the above circumstances, it has to be examined whether the contention raised by the petitioners that the State Government has no power to revive the Commission which ceases to exist by invoking the provision under Section 21 of the General Clauses Act. It goes without saying that if the statute confers powers to be exercised on certain conditions, the conditions prescribed are normally held to be mandatory and a power inconsistent with those conditions is impliedly negatived.

36. The Apex Court in the case of Ajay Singh (1st supra) held that Section 21 of the General Clauses Act shall not be applicable to the extent scheme, context and effect of the provisions of the statute applied, or inconsistent with such application. The observations of the Supreme Court, to the extent relevant to the facts of the case on hand, are as follows:

“It is common ground before us that Section 21 of the General Clauses Act can be invoked only if, and to the extent, if any, the context and the scheme of the Commissions of Inquiry Act so permits. The general power in Section 21 of the General Clauses Act is ‘to add to, amend, vary or rescind any notifications’ etc. In the context of reconstitution of the Commission, the power to fill any vacancy in the office of a member of the Commission is expressly provided in Sub-section (3) of Section 3 of the Commission of Inquiry Act. Similarly, the power to discontinue the existence of the Commission when it becomes unnecessary can he exercised by issue of a notification in accordance with Section 7 of the Act which results in rescinding the notification issued under Section 3 constitution the Commission. Thus, the power to rescind any notification conferred generally in Section 21 of the General Clauses Act is clearly inapplicable in the scheme of the Commissions of Inquiry Act which expressly provides for the exercise of this power in relation to a Commission constituted under Section 3 of the Act. The only material remaining 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 Commission can be amended or varied by filling any vacancy in the office of a member as provided in the Commissions of Inquiry Act is also obviously excluded from the purview of Section 21 of the General Clauses Act which cannot be invoked for this purpose, xxxx

There being no express power given by the Commissions of Inquiry Act to the appropriate Government to reconstitute the Commission of Inquiry constituted under Section 3 of the Act by replacement or substitution of its sole member and the existence of any such power being negatived by clear implications, no such power can be exercised by the appropriate Government with the aid of Section 21 of the General Clauses Act. The scheme of the enactment is that the appropriate Government should have no control over the Commission after 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 Commission 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………..”

37. Further, in the case of State of Bihar v. D.N. Ganguly, the Apex Court observed as follows:

“It was well settled that the rule of construction embodied in Section 21 of the General Clauses Act can apply to the provisions of a statute only where the subject-matter, context and effect of such provisions are in no way inconsistent with such application.”

Thus, the Supreme Court in categorical terms held that the power to rescind any notification conferred generally in Section 21 of the General Clauses Act is clearly inapplicable in the scheme of the Commissions of Inquires Act. As observed above, the Act did not provide any provision for reconstitution of the Commission and hence by the aid of Section 21 of the General Clauses Act, the Government cannot be permitted to do a thing which was clearly excluded in the Act. Therefore, Section 21 of the General Clauses Act is not helpful for revival of the Commission.

38. The Supreme Court in the case of Haridwar Singh v. Bagun Sumbrui, while determining the question whether a provision in a statute, or a rule is mandatory or directory has expressed the view in the following terms:

“Several tests have been propounded in decided cases for determining the question whether a provision in a statute, or a rule is mandatory or directory. No universal rule can be laid down on this matter. In each case one must look to the subject matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured. Prohibitive or negative words can rarely be directory and are indicative of the intent that the provision is to be mandatory.”

39. In this case, the pre-requisite condition for appointment of the Commission is of existence of matter of public importance and the Government have to exercise its power in the manner prescribed by the provisions of the Commissions of Inquiry Act, 1952. Under the above circumstances, it has to be seen whether this Court can adopt a construction of the legislative intent of the provisions of Section 3 (1) of the Act to arrive at a conclusion whether the power for appointment includes the power of reconstitution of the Commission in the absence of any statutory provision. It is pertinent to note that the power under Section 3 of the Act is only to appoint the Commission at the first instance and to fill up the vacancies if any that would arise during the functioning of the Commission and not for revival/reconstitution. On the other hand, no provision under the said Act is brought to our notice which enables the Government for reconstitution/revival of the Commission once it is closed. What all Section 3 of the Act states is for appointment only and not for revival.

40. The learned Advocate General relies on the judgment of the Orissa High Court in the case of State v. Janamohan Das, and also the Full Bench judgment of this Court in the case of D. Satyanarayana v. N.T. Rama Rao, (F.B.) and submits that the discretionary power conferred by Section 3 of the Act is not unfettered and hence the Government by exercising its unfettered powers under Section 3 of the Act revived the Commission. This Court does not find any reason to draw the support from the above citations in view of the fact that those cases are related to constitution of the Commission but not for revival of the Commission.

41. Whether the appointment deals with the reconstitution of the Commission when the term ceases to exist, it is very necessary to discuss the law laid down by the Supreme Court in the case of Murudeshwara Ceramics Ltd v. State of Karnataka, wherein the Supreme Court has held that if the Act confers power on the State Government to exempt any land from a restriction or prohibition on transfer contained in the Act, exemption granted after the transfer will be ineffective if the Act automatically invalidates the transfer made in violation of the restriction or prohibition but if a declaration under the Act is a pre-requisite for such an invalidity the transfer will be effective if the exemption is granted before such a declaration.

42. When the power is conferred on the Government by a statute, the requirement is formation of the opinion of the Government to come to the conclusion with regard to the appointment of the Commission. Accordingly, for withdrawal of the Commission, the condition precedent is formation of the opinion by the appropriate Government in view of the phraseology under Section 3 (1)(a) of the Act. The appropriate Government may if it is of the opinion that it is not necessary to continue the Commission, it can put an end to the existence of the Commission. As observed above, for constitution of the Commission, the Government should form an opinion. It means, before taking any action whether to appoint a Commission or to make the Commission to cease to exist, the Government invariably has to form an opinion. A reading of G.O.Ms.No. 58 dated 22-6-2004 goes to show that the G.O.Ms.Nos. 544 and 553 have been withdrawn under Sub-clause (1) of Section 3 of the Act with retrospective effect.

43. The contention of the learned counsel for the petitioners is that the Government reconstituted the Commission with a mala fide intention and the said action of the Government is arbitrary. In the absence of any confirmation (sic. conferment) of power under the Statute, the question that remains is whether the exercise of power vested with the appropriate Government under the provisions of the Commissions of Inquiry Act or it is open to the Government to take aid of Section 21 of the General Clauses Act.

44. The main contention of the learned Senior Counsel Sri S.S. Prasad appearing for one of the impleaded respondents is that if the provisions of the Commissions of Inquiry Act are read with Section 21 of the General Clauses Act, the Government have the power to enlarge the time. The above contention of the learned Senior Counsel holds good if the Commission constituted under the Act is in existence. In this case, the Government have issued G.O.Ms.Nos. 544 and 553 notifying the Commission as ‘ceased to exist’ and thus it has to be held that functioning of the Commission has come to an end. When the functioning of the Commission has ceased to exist, the enlargement of time to make the Commission to function does not arise and hence the Government cannot take aid of Section 21 of the General Clauses Act. Hence, the contention of the learned Senior Counsel that by virtue of Section 21 of the General Clauses Act, the Government can extend time does not hold water in view of the fact that the Commission ceased to exist by virtue of G.O.Ms.Nos. 544 and 553. Further, the Supreme Court in the case of Kazi Lhendeep Dorji v. Central Bureau of Investigations, held that Section 21 of the General Clauses Act does not confer a power to issue an order having retrospective operation.

45. It has to be examined whether the Commission can be brought to life ex post facto after it has once ‘ceased to exist’. As observed above, the functioning of the Commission has come to end by virtue of G.O.Ms.Nos. 544 and 553 and the Commission has become defunct by issuance of the said Gos. The Supreme Court in the case of Kamla Prasad Khetan v. Union of India, AIR 1953 SC 676 held that a notified order issued under Section 18-A of the Industrial (Development and Regulation) Act, 1951, and authorizing the Controller to take over management of an industrial undertaking for a certain period can be amended before the expiry of that period by substitution of a different and longer period in place of the period originally fixed. In the case of Strawboard Mfg. Co. v. G. Mill Workers’ Union, the Apex Court observed that the power of amendment or modification, in the absence of any clear authorization to that effect, can only be exercised prospectively during the period the original notification, order etc. continues to be effective, for it cannot be brought to life ex post facto after it has once ceased to exist. Section 21 of the General Clauses Act does not confer power to issue an order having retrospective operation in the absence of any enabling provision under the Act.

46. The Supreme Court in the case of State of Madhya Pradesh v. Ajay Singh, has held that Section 21 of the General Clauses Act can be invoked only if the scheme of the Act so permits. The Apex Court in the said case observed as follows:

“Section 21 of the General Clauses Act can be invoked only if, and to the extent, if any, the context and the scheme of the Commissions of Inquiry Act so permits. To the extent to which express provision is made in the enactment, Section 21 cannot be invoked. The general power in Section 21 of the General Clauses Act is ‘to add to, amend, vary or rescind any notifications’ etc. The power to discontinue the existence of the Commission when it becomes unnecessary can be exercised by issue of a notification in accordance with Section 7 of the Commissions of Inquiry Act which results in rescinding the notification issued under Section 3 constituting the Commission. Thus, the power to ‘rescind’ any notification conferred generally in Section 21 of the General Clauses Act is clearly inapplicable in the scheme of the Commissions of Inquiry Act which expressly provides for the exercise of this power in relation to a Commission constituted under Section 3 of the Act. In the absence of power under the Commissions of Inquiry Act of amendment and variation of the notification issued under Section 3 for the purpose of reconstitution of the Commission in the manner indicated, even that power to amend or vary any notification by virtue of Section 21 of the General Clauses Act must be taken as excluded by clear implication in the sphere of reconstitution of the Commission. Moreover, the power to amend or vary cannot include the power to replace or substitute the existing composition of the Commission with an entirely new composition. Thus, the rule of construction embodied in Section 21 of the General Clauses Act cannot apply to the provisions of the Commissions of Inquiry Act, 1952 relating to reconstitution of a Commission constituted there under since the subject-matter, context and effect of such provisions are inconsistent with such application.”

47. In view of the above observations of the Supreme Court, it has to be held that Section 21 of the General Clauses Act cannot be made applicable in the absence of power conferred under the Commissions of Inquiry Act. Thus, in view of the law laid down by the Apex Court in the case of Ajay Singh (1st supra) it has to be observed that there is no enabling provision which confers the appropriate Government with the power of continuing the Commission after it ‘ceases to exist’ or for reconstituting the Commission with the aid of Section 21 of the General Clauses. Act.

48. Sri S.R. Ashok, the learned Senior Counsel appearing for the impleaded respondents submits that the law laid down by this Court in WP No. 21111 of 2001 has to be held as per incuriam. In support of his contention, the learned Senior Counsel placed reliance on the judgments of the Supreme Court in the case of Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engg. Works (P) Ltd., and Narinder Singh v. Surjit Singh, .

49. Before adverting to the said contention, it is to be noticed that a Division Bench of this Court in WP No. 21111 of 2001 has considered the effect of the judgment of the Supreme Court in Civil Appeal No. 4138 of 2001 dated 13-7-2001 and has come to the conclusion that there are no existing circumstances to continue the Commission and hence dismissed the W.P.No. 21111 of 2001. Therefore, it cannot be said that the judgment in W.P. No. 21111 of 2001 is contrary to the judgment of the Supreme Court in Civil Appeal No. 4138 of 2001. Since the Division Bench in W.P. No. 21111 of 2001 did not deliver the judgment ignoring the law laid down by the Supreme Court in any other case with regard to the subject in question, it cannot be held that the judgment in W.P. No. 21111 of 2004 is per incuriam. A Full Bench of this Court in the case of Commissioner of Income Tax v. B.R. Constructions, 202 ITR 222 (A.P. High Court) (F.B.) held that if any decision is rendered by a Court in ignorance of a previous decision of its own or if it has ignored a decision which binds it, then only the judgment could be branded as per incuriam. In this case, no such situation arises. Hence, the contention of the learned Senior Counsel Sri S.R. Ashok that the judgment of this Court in W.P. No. 21111 of 2001 is per incuriam cannot be countenanced. Further, the case law on which the learned Senior Counsel relies on are not applicable to the facts of the case on hand inasmuch as in the above judgments the Supreme Court held that judgments of it are binding on the lower Courts. A Division Bench of this Court in W.P. No. 21111 of 2001 did not ignore the judgment of the Apex Court and hence the above citations, in our view, would not be helpful to his arguments.

50. The learned Senior Counsel Sri S.S. Prasad submits that the Government is having power to review its own decisions and by exercising such power, the Government has restored the Commission by withdrawing the G.O.Ms.Nos. 544 and 553. However, no provision is brought to our notice either under the Act or any other Law permitting the Government to review its own decision. As observed above, the Commissions of Inquiry Act is a self-contained code and within the parameters of the provisions of the said Act only, the Government have to exercise its powers. If no such power is vested with the Government in the said Act to review/reconstitute the Commission, the Government cannot do so by overruling the judicial pronouncements under the guise of exercising the administrative powers. Further, the Supreme Court in the case of Baliram Waman Hiray v. Justice B. Lentin, (1998) 4 SCC 419 has held that the law laid down by Supreme Court can be rendered ineffective by subsequent legislative amendment.

51. In the case of Union of India v. K.M. Shankarappa, AIR 2000 SC 3678 the Supreme Court has held as follows:

“Thus, Section 6(1) is a travesty of the rule of law which is one of the basic structures of the Constitution. The Legislature may, in certain cases, overrule or nullify the judicial or executive decision by enacting an appropriate legislation. However, without enacting an appropriate legislation, the Executive or the Legislature cannot set at naught a judicial order. The Executive cannot sit in an appeal or review or revise a judicial order.’

But, in the case on hand, it is not the case of the respondents that the Government has brought any legislative amendment to make the judgment in W.P. No. 21111 of 2001 ineffective. Hence, the Government cannot be permitted to nullify the judicial verdict with the executive orders.

52. The learned Senior Counsel Sri S.S. Prasad submits that even assuming that in the GO, a wrong provision has been mentioned, it will not nullify the order. This Court does not find any reason to disagree with the said proposition. But, the said principle cannot be made applicable to the facts of the present case. When a notification is issued expressly under one of the provisions, it cannot be made relate to some other provision. The Supreme Court in the case of Union of India v. Modi Rubber Ltd., AIR 1985 SC 1992 has taken the above view.

53. In the case on hand, the Commission ceased to exist under the provisions of Section 7 (1) of the Act by virtue of issuance of G.O. Ms.Nos. 544 and 553. Therefore, it can be said that by exercising power under Section 3 (1) of the Act, the Government cannot reconstitute the Commission which ceased to exist by virtue of G.O.Ms.No. 544 and 553 issued under Section 7 of the Act. Section 3(1) of the Act deals with the appointment of the Commission but not with regard to withdrawal and revival of the Commission which ‘ceased to exist’. In this context, it has to be held that the Commission itself was not in existence after issuance of G.O.Ms.Nos. 544 and 553, hence it has to be held that the statutory power conferred under Section 3(1) of the Act has limitations since it does not permit to with draw the orders issued in G.O.Ms.Nos. 553 and 544 closing the Commission under Section 7 of the Act and direct that the said Commission of inquiry deemed to have continued with retrospective effect.

54. The learned counsel Sri Ramesh Ranganadhan submits that since the earlier Government after assessing the circumstances that most of the cases filed against the persons responsible for the Yeleru scam have reached finality, both on legal and administrative side has felt that no useful purpose would be served even if the Commission is allowed to function, has closed the Commission by way of G.O.Ms.Nos. 544 and 553. On the other hand, the learned Counsel for the respondents submits that the Commission is not a Court and its duty is to ascertain the facts and submit its report so that the Government could take steps avoiding the recurrence of such mistakes and hence if the Commission is allowed to function nothing would happen to the petitioners since the Commission is only a fact finding body and they relied on number of judgments in support of the above principle. There is no dispute with regard to the ratio laid down in the above cases.

55. This Court does not find any reason to disagree with the contentions of the learned counsel for the respondents. But, the question is whether the Government have the power to revive the commission once it ‘ceased to exist’. As observed by this Court in earlier paras that the Government have no power to revive the Commission after issuance of notification under Section 7 (1) of the Act in the absence of any statutory power and hence this Court is left with no option except to hold that the Government have no power to revive/reconstitute the Commission once it is ceased to exist. Though number of decisions have been relied upon to the effect that the duty of the Commission is entirely different to that of the Court, the same have not been dealt with in view of the fact that there is no dispute to that proposition.

56. The next contention urged by the learned Counsel for the petitioners in W.P. No. 1364 of 2005 is that since Sri Justice B.K. Somasekhara was not provided any placement after closure of the Commission by the Telugu Desam Party in spite of sending his bio-data to the then Government Pleader Mr. Vijay Kumar, he got prejudiced against the Telugu Desam Party and its functionaries and hence he has been putting irrelevant questions to the witnesses of the Telugu Desam Party. It is also contended that the Commission is not recording the depositions properly i.e., the answers given by the witnesses.

57. It is to be noticed that if the deposition is not recorded properly, the witness while signing the deposition can as well object to it. No material has been placed before this Court that the witnesses have objected to for such recording of the depositions at any point of time. It is not the case of the petitioners that the second petitioner in the W.P.No. 1364 of 2005 is not an educated person and he being an highly educated person and having worked as a Cabinet Minster of the State should have requested/pointed the Commission to record his evidence properly. Having failed to raise such objection, the petitioners, in W.P. No. 1364 of 2005 cannot be permitted to raise such an allegation before this Court against a responsible citizen that too a retired Judge of this Court.

58. The learned Counsel Sri C.V. Mohan Reddy contends that the Commission is a fact-finding authority and during the course of examination it can put as many questions as it wish to elicit the facts from the witnesses and hence the allegation of bias cannot be attributable to Sri Justice B.K. Somasekhara. With regard to the allegation that the Commission is not accommodating the time to the persons of the Telugu Desam Party while accommodating the time to others, the learned counsel submits that since the Commission has to submit its report within a time limit, the Commission may be little bit stiff for granting time to the witnesses whose evidence is vital for submission of the report and hence the allegation of bias cannot be attributable. He also submits that Sri Justice B.K. Somasekhara never sent his bio-data to Sri Vijay kumar, the then learned Government Pleader seeking any assignment either in the State or in the Central Government and hence the question of bias towards the Telugu Desam Party does not arise. He also submits that to the above effect, Sri Justice B.K. Somasekhara has filed a sworn counter affidavit duly refuting the allegations levelled against him.

59. This Court finds force in the above submissions of Sri C.V. Mohan Reddy. Since the Commission has to submit its report within the time limit, the Commission might be some what reluctant to grant adjournments and it might have insisted the witnesses to be present since the Commission might have felt that their evidence is crucial to submit its report. Merely because the Commission refused to accommodate the witnesses of the Telugu Desam Party, bias cannot be attributable to the Commission. With regard to sending of bio-data to Sri Vijaya kumar, the then Government Pleader by Sri Justice B.K. Somasekhara seeking any assignment either in the State Government or in the Central Government, Sri Justice Somasekhara in his sworn counter affidavit has categorically stated that he never sent such bio-data to Sri Vijaya Kumar seeking assignment and that the cover in which the alleged bio-data was sent to him does not relate to the said purpose and he might have addressed a letter to him in some other aspect. In view of the fact that Sri Justice B.K. Somasekhara has given sworn counter affidavit denying the said facts, this Court does not find any reason to differ with the statement of Sri Justice B.K. Somasekhara and hence since he was not accommodated in an assignment either in the State Government or Central Government it cannot be said that he was biased towards the witnesses of the Telugu Desam Party. Therefore, the allegation of bias pointed by Sri Ramesh Ranganathan on behalf of the petitioners in W.P. No. 1364 of 2005 has been negatived.

60. For the foregoing discussions, it has to be held that the Government have no power whatsoever conferred upon it under Section 3 (1) of the Commissions of Inquiry Act to withdraw GO Ms.Nos. 544 Revenue (LA) Department dated 4-8-2001 and G.O.Ms. No. 553 Revenue (LA) Department dated 8-8-2001, closing the Commission, issued by invoking the powers under Section 7(1) and (2) of the Act and direct that the Commission of Inquiry is deemed to have continued with retrospective effect i.e., from 1-12-1999. However, the petitioners in W.P. No. 1364 of 2005 have failed to prove bias against the functioning of the Commission and hence the contention of the petitioners to the said extent is negatived.

61. Therefore, GO Ms.No. 581 & CAD (PW-GV3) Department dated 22-6-2004 is liable to be quashed and it is accordingly quashed. Accordingly, all the Writ Petitions are allowed to the extent indicated above. However, no order as to costs.

JUDGMENT

L. Narasimha Reddy, J.

1. I had the advantage of reading the judgment prepared by my esteemed Sister. I respectfully agree with the conclusions, as regards the relief to be granted in the writ petitions. However, I propose to supplement some more reasons, to the said conclusions.

2. The Government of A.P., acquired lands for the purpose of Reservoir, at a place known as Eleru. The Land Acquisition Officer fixed the market value and paid compensation. Not being satisfied with the same, references were sought for under Section 18 of the Land Acquisition Act, in the concerned Civil Courts. On noticing that the Civil Courts enhanced the compensation in an exorbitant manner, proceedings were initiated, in the High Court, by invoking writ jurisdiction, and at various levels of Government. A Commission of Inquiry, headed by Justice B.K. Somasekhara (for short ‘the Commission’), was appointed by the Government under the provisions of the Commissions of Inquiry Act, 1952 (for short ‘the Act’), through its orders in G.O.Ms. No. 468, dated 2-6-1997.

3. Challenging the very appointment of the Commission, W.P.No. 14282 of 1998 was filed by one Mr. Peela Pothi Naidu, petitioner in two of the present writ petitions, mainly on the ground that it was made on the directions issued by the High Court in the orders passed in writ petitions, and that there did not exist any independent application of mind by the Government, under Section 3 of the Act. A Division Bench of this Court accepted that contention and quashed G.O.Ms.No. 468, dated 2-6-1997 through its judgment dated 23-6-1999. Sri P. Janardhana Reddy, one of the parties to the present proceedings, filed C.A.Nos. 4138 and 4139 of 2001 in the Supreme Court against the judgment of this Court. The Hon’ble Supreme Court, through its judgment, dated 13-7-2001 [], reversed the judgment of this Court, and held that there did exist a decision of the Government in appointing the Commission.

4. After the Supreme Court rendered its judgment, upholding the appointment of the Commission, the Government issued G.O.Ms.No. 544, dated 4-8-2001, under Section 7 of the Act, directing that the Commission shall cease to exist. This notification was slightly amended, for the purpose of supplementing certain reasons through G.O.Ms.No. 553, dated 8-8-2001. Mr. P. Janardhana Reddy filed W.P.No. 21111 of 2001 before this Court, challenging the notifications issued by the Government under Section 7 of the Act. It was dismissed by a Division Bench, through judgment dated 4-1-2003 [ (D.B)].

5. After the change in the composition of the State Government, in the recent elections, a notification, being G.O.Ms.No. 58, dated 22-6-2004, was issued, withdrawing the earlier orders in G.O.Ms.Nos. 544 and 553, dated 4-8-2001 and 8-8-2001, respectively, and directing that the Commission shall be deemed to have continued with retrospective effect from 1-12-1999, on which date, it stopped functioning due to expiry of the term. The notification further provides that the Commission can use all the material collected by it, in its previous spell, and shall submit a report within three months, from issuing public notices to the concerned persons, but not later than six months. This notification is challenged in the present writ petitions.

6. W.P.Nos. 14110 of 2004 and 18791 of 2004 are filed by the same individual. The first one is filed for issuance of a Writ of Quo Warranto, and for a consequential relief of setting aside G.O.Ms.No. 58, dt. 22-6-2004, as being illegal, arbitrary and contrary to the provisions of the Act. The second writ petition is filed for issuance of a Writ of Prohibition against the 2nd respondent therein, the Commission.

7. W.P.No. 1364 of 2005 is filed by the Telugu Desam Party, as well as one of its functionaries, who is a former Minister. They prayed for a Writ of Mandamus, to declare G.O.Ms.No. 58, dated 22-6-2004, as illegal, ultra vires the provisions of the Act, and violative of Article 14 of the Constitution of India. Apart from urging the contentions, touching on the merits of the matter, and vires of the G.O., the petitioners have alleged acts of bias against the learned retired Judge, who heads the Commission.

8. Sri M. Venkata Raja Ram, learned counsel for the petitioner, in the first two writ petitions, submits that the impugned G.O., is ultra vires the provisions of the Act, and in that view of the matter, the Commission has no legal basis to function. He contends that the Government issued a notification under Section 7 of the Act, after forming an opinion, that it is no longer in the interest of public, at large, to continue the Commission, and thereby, it ceased to exist. According to the learned counsel, once the Commission has ceased to exist, it cannot be revived, under any circumstances, and that such a course is not provided for, under the Act. He submits that the impugned G.O., was issued, without taking into account, the relevant factors, such as, the judgment of this Court in W.P.No. 21111 of 2001, in which the notification issued under Section 7 of the Act was challenged.

9. Learned counsel further submits that the Commission, particularly after its revival, is functioning in utter disregard of fair-play and impartiality, and in a way, is trying to victimize and harass certain selected persons, including the writ petitioner. He contends that such acts are evident from the fact that the Commission has chosen to issue a notice, under Section 8-B, to the father, wife and son of the writ petitioner. He submits that the father is no more, and the son was aged 5 years, when the Civil Court rendered its judgment. He also submits that the decrees passed by the Civil Courts were set aside; criminal proceedings were initiated against the persons, accused of, indulging in unlawful activities in the matter; disciplinary proceedings were initiated against the departmental officials, and in that view of the matter, nothing remains to be inquired into, by the Commission.

10. The contention of Sri Ramesh Ranganathan, learned Senior Counsel appearing in W.P.No. 1364 of 2005, is threefold. Firstly, he submits that revival of the Commission, which has ceased to exist, as a result of notification under Section 7 of the Act, is ultra vires the provisions of the Act. Secondly, he contends that the formation of opinion by the Government, to revive the Commission, is based on irrelevant material; non-existent circumstances, and is in disregard of relevant material; the cumulative effect of which, discloses the non-application of mind. Thirdly, he submits that the proceedings before the Commission, subsequent to its revival, are vitiated, by bias, and that the manner in which the 2nd petitioner was treated, when he appeared as a witness, bears testimony for it.

11. Expanding these submissions, he contends that the Act is a self-contained Code, which provides for the matters relating to the Commissions of Inquiry, from the stage of appointment, upto its termination, and that under the entire scheme, there is no provision for revival of a Commission, once it has ceased to exist, in law. He submits that even on facts, this Court, on an earlier occasion, recorded a finding to the effect that the continued functioning of the Commission would be an exercise, in futility, and that the present notification has the effect of, rendering the judgment invalid. He contends that even assuming that there exists any power in the Government, to revive a Commission; the same does not justify the exercise, unless there is valid basis for it. He urges that the impugned G.O., does not disclose the circumstances, which warrant such an exercise. Anticipating a reply, to the effect that Section 21 of the General Clauses Act provides the basis for exercising power to withdraw a notification issued earlier, he submits that the said provision cannot be a source of independent power, and is only a rule of construction.

12. Learned Advocate-General appearing for the State, submits that G.O.Ms.No. 544 and 553, dated 4-8-2001 and 8-8-2001, respectively, cannot be said to have been issued in exercise of power under Section 7 of the Act, though they were purported to be issued under that provision. He contends that the term of the Commission was not extended, by the then Government, beyond 1-12-1999, and in that view of the matter, issuance of notification under Section 7, subsequent to that date, was an exercise of power, in futility. Placing reliance upon the judgment of Gujarat High Court in State of Gujarat v. Consumer and Education Research Centre, learned Advocate-General submits that a notification under Section 7 of the Act, can be issued only during the currency of the term of a Commission, and not after expiry of the term. On this premise, learned Advocate-General contends that the notifications, purported to have been issued under Section 7 of the Act, were of no legal consequence, and that the impugned notification does, nothing more, at least, in effect, than extending the term of the Commission from 1-12-1999.

13. Another facet of the submission made by the learned Advocate-General is that there is no prescribed form or manner, in which the Government is required to express its opinion, to appoint a Commission; extend its term, or to terminate it, by issuing a notification under Section 7 of the Act. He contends that the opinion of the Government, in such matters, is to be gathered from the attendant circumstances, and for this proposition, he relies upon the judgment of the Supreme Court in P. Janardhana Reddy v. State of A.P., rendered in relation to this very Commission. He submits that the purpose, for which the Commission was constituted, particularly the one, indicated in item No. 4, of the original notification, continues to hold good, even now, and the objective of the Government, in issuing the present notification, is to ensure that the substantial work undertaken by the Commission, on such an important aspect, is given a finality.

14. Sri C.V. Mohan Reddy, learned counsel for the Commission, submits that the allegations of bias, pleaded against the Commission, are without any basis. He contends that the Commission is vested with the power to require the attendance of the persons and to elicit the requisite information, which is germane, to the purpose for which, the Commission is appointed. According to the learned counsel, the record of the Commission discloses that the 2nd petitioner in W.P.No. 1364 of 2005 had adopted a posture of non-cooperation, from the beginning, and when he was confronted with certain uncomfortable, but relevant questions, he has come forward with the plea of bias. He submits that the Commission has no adjudicatory powers, and in that view of the matter, the concept of bias does not apply, in relation to proceedings before it.

15. Sri S.R. Ashok, learned Senior Counsel, appearing for some of the impleaded parties, submits that, having regard to the purpose, for which the Commission was appointed and subsequently revived, no public-spirited person, much less, a political party, can object to the proceedings. He contends that the judgments rendered by Courts, cannot be interpreted in the same manner, as statutes, and certain stray observations made by this court in W.P.No. 21111 of 2001, cannot be treated as final words on the subject. Learned Senior Counsel contends that such observations, in fact, run contrary to the findings recorded by the Supreme Court, in relation to the very matter, in its judgment in P. Janardhana Reddy v. State of A.P. (2 supra). He urges that even if the judgment of this Court in W.P.No. 21111 of 2001 has become final, the same has to be treated as per incuriam. He further submits that the Commission does not become functus officio, with the issuance of a notification under Section 7, and such a concept applies only in cases of judicial and quasi-judicial agencies. According to him, the State has the power to revive a Commission.

16. Sri S. Satyanarayana Prasad, learned Senior Counsel appearing for some other impleaded parties submits that the writ petitioners have no locus standi, to challenge the impugned notification. He contends that the necessity for the Government to issue the impugned notification arose, because of the fact that no other person can be appointed in the place of existing Commission, in view of the judgment of the Supreme Court in State of Madhya Pradesh v. Ajay Singh, . He submits that the order issued under Section 7 of the Act, was issued in exercise of administrative power, and that there is no prohibition against the Government from reviewing such orders. He contends that the non-application of mind by the Government if, at all, was at the stage of issuing notification under Section 7 of the Act, and that the impugned G.O., has only corrected the mistakes, which were committed earlier.

17. Sri K. Ashok Reddy, learned counsel, appearing for yet other impleaded party, had adopted the contentions advanced by the learned Advocate-General and other Senior Counsel, appearing for the respondents. He submits that there is nothing in the judgment in W.P.No. 21111 of 2001, which prohibited the Government from reviving the Commission and that necessity to continue the Commission exists.

18. Commissions of Inquiries, as a mechanism to ascertain facts, had emerged as a facet of growth of administrative law. Such Commissions are appointed either to study and report, to enable the State to formulate policy, take an administrative decision etc., or to inquire into incidents, which are of serious concern to the public at large and the State.

19. The circumstances under which, the Commission of Inquiry, which is the subject matter of these writ petitions, was appointed, were briefly indicated in the preceding paragraphs. Its terms of reference were;

1. to inquire into the nature and the details of the procedural financial and legal irregularities committed by any person or persons in the above said land acquisition matter;

2. to establish acts of commission and omission on the part of the official functionaries in the Government, Judiciary including Law Officers and others who are alleged to be involved in the alleged irregularities;

3. to inquire into the nature and the extent of complicity on the part of any person or persons and also the role of outside influence, if any;

4. to suggest ways and means of improving the existing systems and procedures including changes in the statute, to prevent recurrence of similar or such irregularities;

5. to suggest Action/Actions on any person/persons in the matter.

20. It is a matter of record that the term of the Commission was extended upto 1-12-1999 and thereafter, litigation in one form or the other continued initially, a Division Bench of this Court in W.P.No. 14282 Of 1998 had set aside the G.O., through its judgment dated 23-6-1999, on the ground that there was no independent application of mind by the Government, in issuing the notification under Section 3. That judgment was reversed by the Supreme Court, and the way was cleared for continuance of the Commission. However, the Government issued notification under Section 7 of the Act, on taking the view, that the continued existence of the Commission is unnecessary. The same was challenged in W.P.No. 21111 of 2001. The writ petition was dismissed by a Division Bench of this Court, observing that the Supreme Court never directed that the Commission shall be continued, and that it was for the Government to take decision, whether or not, to continue the Commission. The explanation offered by the Government, in the counter affidavit filed in that writ petition for bringing about the cessation of the Commission, weighed with this Court. In fact, an observation was made in the judgment to the effect that the continued functioning of the Commission, in the circumstances obtaining at that point of time, would be an exercise in futility.

21. The impugned notification is issued in exercise of power under Section 3 of the Act. After referring to the earlier GOs., and all the judgments, except the one, in W.P.No. 21111 of 2001, the G.O., reads as under:

“……Now, therefore, in exercise of powers conferred by Sub-section (1) of Section 3 of the Commission of Inquiry Act, 1952 (Central Act 60 of 1952), the Governor of Andhra Pradesh hereby direct that the orders issued in the reference sixth and seventh shall be withdrawn and accordingly the said orders are withdrawn and therefore the said Commission of Inquiry is deemed to have continued with retrospective effect i.e. from 1st December 1999 and the aforesaid Commission shall continue its inquiry from where it was stopped.”

22. In view of the contentions urged on behalf of the parties, the following questions fall for consideration in these writ petitions:

(1) Whether the impugned G.O., is ultra vires the provisions of the Act.

(2) Assuming that the State had the power to revive the Commission, whether there existed proper basis for it.

(3) Whether the proceedings before the Commission are tainted with bias.

23. The plea of some of the impleaded respondents, as to the locus standi of the writ petitioners, is not at all impressive. The very origin of the Commission was preceded by public interest litigation. Thereafter, writs before this Court at various stages and Civil Appeals before the Supreme Court did not partake any adversarial character. Hence, the plea deserves to be noted, only for being rejected.

24. As for the first question: The scheme of the Act, in brief, is that the appropriate Government is vested with the power under Section 3 of the Act, to appoint the Commissions of Inquiry, by issuing a notification, in the Official Gazette. A dichotomy is maintained in such an exercise of power. If a resolution of the concerned Legislature is passed in this regard, the appropriate Government has no option, but to appoint the Commission. In the absence of such a resolution, it is in the discretion of such Government, whether or not, to appoint the Commission. If the Commission comprises of more members, than one, one of them is designated as Chairman. Sub-section (3) thereof, empowers the Government to fill any vacancy that may have arisen in the office of the commission, consisting of one or more members.

25. Section 4 confers the powers of a Civil Court, on Commission, in certain limited aspects, such as, summoning the witnesses examining them, on oath; discovery and production of documents; receiving evidence on affidavit; requisitioning public record; issuing commissions for examination of witnesses, and other ancillary matters. Section 5 of the Act, enables the Government to confer some more powers on the Commission, depending on the exigency. Under Section 5-A of the Act, the Commission can utilize the services of State and Central Government Agencies, for the purpose of undertaking investigation. Section 8-B mandates that whenever a Commission considers it necessary to inquire into the conduct of any person, or is of the opinion that the reputation of any person is likely to be prejudicially affected by the inquiry, it shall give to that person a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence. Except Section 7, the other provisions are mostly procedural or formal in nature. It is beneficial to extract Section 7.

“Section 7: Commission to cease to exist when so notified:-

(1) The appropriate Government may, by notification in the Official Gazette, declare that-

(a) a Commission (other than a Commission appointed in pursuance of a resolution passed by the House of the People or, as the case may be, the Legislative Assembly of the State) shall cease to exist, if it is of opinion that the continued existence of the Commission is unnecessary;

(b) A Commission appointed in pursuance of a resolution passed by the House of the People or, as the case may be, the Legislative Assembly of the State shall cease to exist if a resolution for the discontinuance of the Commission is passed by the House of the People or, as the case may be, the Legislative Assembly of the State.

(2) Every notification issued under Sub-section (1) shall specify the date from which the Commission shall cease to exist and on the issue of such notification, the Commission shall cease to exist with effect from the date specified therein”.

26. From a reading of the same, it is evident that the Government is vested with the power to issue notification, directing that the Commission shall cease to exist. If the Commission was appointed on the strength of a resolution of the Legislature, a notification under this provision can be made, only on the basis of a resolution of that House, empowering the Government to do so. Where the Commission was appointed by the Government, without there being such a resolution, it can issue a notification under this provision, if it forms an opinion to the effect that the continued existence of the Commission is unnecessary. Sub-section (2) makes it abundantly clear that, with effect from the date specified in the notification issued under Sub-section (1), the Commission shall cease to exist.

27. On 4-8-2001, the Government issued G.O.Ms.No. 544, in exercise of this power. Since it was noticed that the opinion formed by the Government was not reflected in it, an amendment was issued four days thereafter, through G.O.Ms.No. 553, dated 8-8-2001. The relevant portion of the amended notification reads as under:

“7. And whereas the Government are of the opinion, after detailed consideration of the matter and on examining all facts and circumstances pertaining to the case, that the continued existence of the Commission is unnecessary. Now, therefore, in exercise of powers conferred under Clause (a) of Sub-section-1 of Section 7 read with Sub-Section 2 of Section 7 of the Commissions of Inquiry Act 1952 (Central Act 60 of 1952), the Governor of Andhra Pradesh, hereby, direct that the aforesaid Commission of Inquiry shall be deemed to have ceased to exist with effect from the 1st day of December 1999.”

28. These notifications were withdrawn through the impugned G.O. The Government invoked its power under Section 3, in doing so. Petitioners contend that such a course is ultra vires the provisions of the Act.

29. One of the contentions urged on behalf of the respondents is that the issuance of notification under Section 7, at a time, when the term of the Commission was not extended, is a superfluous exercise of power; since there was nothing to be dissolved or discontinued. Reliance is placed on the judgment of the Gujarat High Court in Jan Sangharsh Manch v. State of Gujarat, . In that case, a notification issued under Section 7 of the Act, in relation to a Commission, was challenged. In repelling the contention of the petitioners therein, the High Court took the view that the said notification was superfluous, for the reason that the Commission ceased to function much before the issuance of notification. A perusal of the judgment discloses that the High Court upheld the decision of the Government in not extending the term of the Commission. It was in that background, that a notification issued under Section 7, was held to be superfluous. It is evident from the following passages:

“The Government have given many reasons for not extending the term of the Commission. One of the reasons is that there has been communal peace and harmony in the State since the riot of 1992. In such a situation the Government thought it proper not to have a post-mortem examination of the circumstances which led to riots for kindling feelings of bickering between members of different communities. This person appears to be quite justifiable. It cannot be said that it is an irrelevant consideration…..”

It was in this context, that the following observation was made:

“……..In the case of a Commission which is having continued existence the Government needs to issue a notification under Section 7 of the Act declaring that it ceased to exist from a particular date. In other words, notification under Section 7 of the Act is not warranted in relation to a Commission which is not having continued existence as in the case of the term of the Commission having expired. In the case on hand the term of the Commission expired on 30-6-1997. Since its term has not been extended by the Government it automatically ceased to exist with effect from 30-6-1997. The Commission did not continue to exist after 30-6-1997. In such a situation there was no necessity for the Government to issue a notification under Section 7 of the Act on 2-9-1997. That notification has only to be ignored.”

This judgment cannot be treated as an authority for the proposition that a Commission ceases to exist, once for all, if the term expires or is not extended.

30. Once a Commission is appointed, the Law recognizes only two circumstances, under which, its existence can be brought to an end: The first is, where a Commission submits its report, and the second is, where a notification is published under Section 7 of the Act. The fact that the term can be extended with retrospective effect and that casual vacancies, occurring in a Commission, can be filled up under Section 3(3) of the Act, negates the contention that the Commission ceases to exist with the expiry of the term. If the term fixed for a Commission expires, or where a casual vacancy occurs, the functioning of the Commission comes to a temporary halt; as distinguished from its complete cessation. Just as a vacancy in a Commission can be filled up by the Government, after it arises, the term can be extended even after its expiry. If the contention urged on behalf of the respondents is to be accepted, the easiest thing for a Government, to get rid of a Commission, would be to desist from extending the term. Further, by the same logic and reasoning, a Commission cannot be revived or resurrected, once its term has expired, even where a notification under Section 7 of the Act, was not issued. Such a course would result in a preposterous situation.

31. In State of Madhya Pradesh v. Ajay Singh (2 supra), the Supreme Court recognized only two powers in a Government, in relation to a Commission appointed, under the Act. They are: (a) to fill up a vacancy under Section 3(3) of the Act, which may have arisen in the office of the member of the Commission, and, (b) winding up of Commission by issuing of notification under Section 7 of the Act (see para 26). Hence, the point urged on behalf of the respondents cannot be accepted.

32. Now, it needs to be seen, as to what would be the status of a Commission consequent upon issuance of notification under Section 7 of the Act. In categorical terms, the provision declares that the Commission shall cease to exist, with effect from the date, indicated in the notification. Such a notification brings about a complete effacement of the Commission, in the eye of law, without any traces thereof. One hardly needs any assistance from the dictionaries or decided cases to discern, the meaning of the expression “cease to exist”. In effect, it brings about a situation of non-existence. The question of resurrecting or reviving a non-existing entity, does not arise. Such an attempt can be made only when the Commission is in a state of hibernation, such as, where the term expired, but not extended, or where a vacancy arose and steps under Section 3(3) of the Act were not taken. If the object of the Government is to bring about a Commission, after an existing Commission is ceased to exist, consequent on issuance of notification under Section 7, it has to start the exercise afresh, if it is otherwise permissible in law.

33. The Government have invoked the power under Section 3, in issuing the impugned notification. Section 3 of the Act hardly leaves any doubt, that recourse can be had to it, only for the purpose of appointing a Commission. Admittedly, the Commission in question is not appointed through the impugned G.O. It was appointed way back in the year 1997, under an order, issued, in exercise of powers under Section 3(1) of the Act. When the Act has prescribed the method of appointing a Commission, filling up its casual vacancies, and its termination, by issuing notification under Section 7, it is impermissible to visualize any other situations. It is a settled principle that, where law requires a thing to be done in a particular manner, it must be done in that manner, or not at all. [see Gujarat Electricity Board v. Girdharlal , and Nazir Ahmad v. King Emperor (AIR 1936 PC 253)].

34. The respondents attempted to sustain the impugned G.O, by taking the assistance of Section 21 of the General Clauses Act. The provision reads as under:

“Section 21: Power to issue, to include power to add to, amend, vary or rescind, notifications, orders, rules or bye-laws:-

Where, by any [Central Act,] or Regulation, a power to [issue notifications], orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction, and conditions (if any), to add to, amend, vary or rescind any [notifications], orders, rules or bye-laws so [issued]”.

35. According to the respondents, a notification issued under Section 7 is capable of being withdrawn, in exercise of power available under Section 21. They draw support from the circumstance, that the power to extend the term of a Commission was traced by the Courts, to this provision. For more reasons than one, the contention of the respondents cannot be accepted. Firstly, Section 7 is itself, a provision, in the form of empowering withdrawal of a notification issued under Section 3(1). The Act has conferred specific power on the Government, to issue a notification under Section 3(1), to appoint a Commission and to bring about its cessation by issuing a notification under Section 7. Though the term “withdrawal” is not used in Section 7, the effect of exercise of power under Section 7, is nothing but withdrawal of a notification issued under Section 3(1). There cannot be a withdrawal of a notification, which in itself, is in the form of withdrawal of another notification. Such an exercise brings about an extraordinary situation and must be specifically provided for by the statute. It cannot be a matter of inference.

36. Secondly, in State of Madhya Predesh v. Ajay Singh (3 supra), the Supreme Court, in clear and unambiguous terms, held that Section 21 of the General Clauses Act cannot apply to the provisions of the Act, particularly in relation to re-constitution of the Commission. The relevant portion reads as under:

“We have no doubt that the rule of construction embodied in Section 21 of the General Clauses Act cannot apply to the provisions of the Commissions of Inquiry Act, 1952 relating to reconstitution of a Commission constituted there under since the subject-matter, context and effect of such provisions are inconsistent with such application”.

37. Their Lordships took note of the principle that Section 21 of the General Clauses Act embodies a rule of construction and is not a source of independent power. Reference was made to the judgment in State of Bihar v. D.N. Ganguly, wherein it was held that Section 21 of the General Clauses Act is only a rule of construction. Thirdly, where the statute contains a specific provision, the provisions of General Clauses Act, having a bearing on the matter, do not get attracted. Further provisions of the General Clauses Act cannot be invoked to render any specific provision of an enactment, nugatory or otiose.

38. The contention on behalf of the respondents that, being the outcome of an exercise of administrative power, a notification under Section 7, can be reviewed by the Government, and the impugned order can be treated as one such; is difficult to be accepted. The reason is that, power of review can be exercised only when it is specifically conferred by the statute, and it cannot be a matter of inference.

39. In R. v. Halliday, Ex p. Zadig, 1917 A.C. 260, 287 Lord Shaw explained the doctrine of ultra vires as under:

“The author of the power is Parliament: the wielder of it is the Government. Whether the Government has exceeded its statutory mandate is a question of ultra or intra vires.”

40. From the discussion undertaken in the preceding paragraphs, it is clear that the State Government did not have the mandate under the Act, to withdraw a notification issued under Section 7 of the Act, or to revive a Commission once it ceased to exist. Hence, the impugned G.O., is ultra vires the provisions of the Act.

41. The second question is about the power of the Government to revive the Commission. Assuming that a notification issued under Section 7 of the Act, directing that the Commission shall cease to exist, does not in any way limit the power of the Government, and that Section 3 empowers it, to revive a Commission, which ceased to exist consequent on a notification issued under Section 7; it has to be examined whether the action of the State can be sustained.

42. Formation of an opinion is a sine qua non for exercising any statutory power. Mere existence of power, is never recognized as a justification, by itself. It is true, as contended by the learned Advocate-General, that the Act does not stipulate any particular form, in which the opinion of the Government has to be expressed. The Supreme Court in P. Janardhana Reddy v. State of A.P. (2 supra), has in fact, held so. But, there is no denial of the fact that the opinion, as such, must exist. One important principle, which needs to be kept in mind, in this regard, is that the opinion of the Government, irrespective of the form, must be evident from the order itself. It cannot be supplemented, through pleadings or the record. It is apt to refer to the judgment of the Supreme Court in Commissioner of Police v. Gordhandas Bhanji, .

“Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.”

43. A Constitutional Bench of the Supreme Court followed this principle, in Mohinder Singh v. Chief Election Commissioner, and observed,
“…..when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out…..”

44. Both, while appointing the Commission and notifying its cessation, the opinion of the Government was reflected in the respective orders, the opinion of the Government, in the former case, for appointing the Commission, was recognized by the Supreme Court; and in the latter, it was recognized by this Court. In the instant case, the impugned G.O., by itself, does not refer to any circumstances, that weighed with the Government, to revive the Commission. In the counter affidavit filed in W.P.No. 21111 of 2001, the Government stated the circumstances, under which it had decided to discontinue the Commission. Copious reference was made to the civil cases; criminal cases, and disciplinary proceedings, together with their stages, touching on the subject matter, which was referred to, the Commission, for enquiry. In para 18 of the counter affidavit it was averred as under:

“Subsequent to the Judgment of the Hon’ble Supreme Court in C.A.Nos. 4138 and 4139/2001, the State Government, after carefully examining the matter, taking due note of the fact that the criminal cases, Disciplinary proceedings and Land Acquisition Appeals were at an advanced stage, that it was nearly two years since the commission had ceased to function and that no useful purpose would be served in continuing with/reviving the commission, issued orders in G.O.Ms.No. 544, Rev.(LA) Dept., dt. 4-8-2001 as amended by G.O.Ms. No. 553, Revenue (LA) department, dated 8-8-2001 directing that the Commission of Inquiry shall be deemed to have ceased to exist with effect from the first day of December 1999.”

45. A Division Bench of this Court has undertaken extensive discussion on the relevant legal principles and merits of the matter. An observation, almost in the form of a finding was recorded to the following effect:

“…….Courts would be within their rights to examine whether reasons exist or whether an issue of public importance was there, but, in view of the law laid down by the five-Judge Bench judgment of this Court we do not want to deal further on this issue, particularly in view of the fact that at this point of time continuance of commission would be an exercise in futility….”

46. These findings, or observations, as one may choose to call them, have become final. It is possible to argue that just as the judgment of the Supreme Court in Indian National Congress v. Institute of Social Welfare, was interpreted as meaning that, it is left open to the Government, whether or not, to continue the Commission, the judgment in W.P.No. 21111 of 2001 can also be treated as not a fetter on the power of the Government to revive; of course, on the premise that the notification issued under Section 7 of the Act, is not an impediment. To substantiate such a contention, the State is under obligation to furnish a reason, which is strong enough, to outweigh those, that appealed to this Court in upholding the GOs., issued under Section 7. Neither such reasons are furnished, nor there is any reference, to the judgment of this Court in W.P.No. 21111 of 2001, in the impugned order. The only reason sought to be furnished during the course of hearing is that, item No. 4 of the reference is so wide, that its relevance and importance cannot be confined to any particular case or proceedings, and that the Government intends to obtain a report of the Commission on such issue of general importance. It has to be noted that this item of reference was very much there, when the Government has decided to issue notification under Section 7, and it is not a development, which has taken place subsequent to the order of this Court in the said writ petition. A Commission cannot be dealt with like a bladder to be inflated or deflated, at the discretion of the Government of the day.

47. It is argued on behalf of the respondents that the judgment in W.P.No. 21111 of 2001 is per incuriam, because it runs at the teeth of the specific observations made by the Supreme Court in P. Janardhana Reddy v. State of A.P. (2 supra). It is very difficult to accept this contention. Per incuriam is an exception to the principle of stare decisis, which is prevalent in the common law legal systems. The concept of per incuriam gets attracted either when an important provision of law eluded the attention of the Court or where the Court was allusive to such provisions, while rendering its decision. Instances of per incuriam may also arise where the decision is rendered ignoring a binding precedent. The fact that a second view is possible as regards a decision rendered earlier, does, by no means, provide a justification to ignore it, by branding the same as per incuriam. It must be evident from an analysis of the judgment in question, that a crucial provision of statute or delegated legislation, having an important bearing on the subject matter, was not brought to its notice at all, and that the Court did not take the same into account while rendering its decision.

48. From a reading of the judgment in W.P.No. 21111 of 2001, one hardly finds any circumstances to invoke the concept of per incuriam. In fact, it has made an extensive reference to the judgment of the Supreme Court in P. Janardhana Reddy v. State of A.P. (2 supra). Therefore, there is no force in this contention. It is rather incidental, the appellant in the case, before the Supreme Court, and the petitioner in the W.P.No. 21111 of 2001, was the same, and he did not choose to assail the judgment of this Court.

49. Alternatively, it was submitted that even if a judgment, which is otherwise unsustainable in law, remained unchallenged, it deserves to be set at naught, or ignored, if the incongruity in it, is noticed at a later stage. There is no quarrel with this principle. However, it is equally certain that there is nothing in the judgment in W.P.No. 21111 of 2001, which can be said to be contrary to law.

50. Hence, it is clear that the formation of opinion by the Government in reviving the Commission is not discernible from the facts and circumstances of the case, and its decision is tainted with non-existent circumstances and irrelevant material.

51. Now remains the question about bias. The petitioners pleaded that the Commission, which is impleaded by name (for short ‘the 3rd respondent’), is biased against them. Each one has got his own reasons, in making this allegation. The petitioner in the first two writ petitions states that, ever, since the appointment as Commission, the 3rd respondent has been ill-treating; humiliating and harassing him. As instances of recent origin, he has placed before this Court the notices dated 16-2-2005, issued to his deceased father; wife and minor son. It is urged that, in its anxiety to victimize the petitioner, the 3rd respondent did not even verify, whether the father of the petitioner was alive, at all, and issued the notice. He further contends that there was never an allegation against his wife, at any point of time, and still such a notice was issued. The petitioner also states that his son, was aged 5 years, when the Civil Court decided the matter, and as of now, he is just 13 years and the 3rd respondent has chosen to implicate that minor boy also.

52. So far as the petitioners in W.P.No. 1364 of 2005 are concerned, they cite two instances: The first is that the 2nd respondent is alleged to have forwarded his bio-data, during his earlier spell of functioning, soliciting the Government assignments, and since the same was not acceded to, he bore grudge against the functionaries of their political party. The second instance is about the alleged treatment said to have been meted out to the 2nd petitioner there in, during the course of examination, when he appeared before the 2nd respondent.

53. The plea of bias pleaded by the petitioners is resisted by the respondents by invoking the principle, that unless an authority is vested with the judicial or quasi judicial powers, there does not exist any occasion to raise it. They contend that a Commission of Inquiry is purely a recommendatory body, not vested with any power to adjudicate upon the rights of the parties. They rely upon the judgment of this Court in Arun Shridhar Bondale v. Government of A.P., (D.B.). The petitioners on the other hand, rely upon a subsequent judgment of this Court in K. Vijaya Bhaskar Reddy v. Government of A.P., 1995 (3) ALD 534 (D.B.) which is to the effect that, even a Commission of Inquiry is required to act with fairness, and an aggrieved party can certainly complain about the acts of bias against the Commission, if they exist.

54. It is not necessary to add to the length of the judgment by referring to the settled principles, or the precedents, in which they were decided. In K. Vijaya Bhaskar Reddy v. Government of A.P. (11 supra) a Division Bench of this Court held that plea of bias can be raised before a Commission of Inquiry. It should not be forgotten that though the Commission of Inquiry is purely recommendatory body, the findings recorded by it, particularly, indicting or strongly suspecting the involvement of the named individuals, would have its own impact on the rights of such persons. If, one closely analyses the matter, the indication, by a Commission of Inquiry, is prone to be more harmful, than the conviction or findings recorded by regular Courts. The reason is that the findings of a Commission cannot be wiped away, in any manner, and they continue to haunt the individual, almost for ever; whereas the correctness of those recorded in judicial proceedings can be canvassed in superior Courts. It is too late, in the day, to contend that the findings of the Commission of Inquiry are innocuous, and assert that no allegation of bias can be pleaded, in relation to such proceedings. More often, than not the findings and observations made by the Commission are used to tarnish the image of the persons concerned, and in great number of occasions, the damage is unimaginable.

55. Behind the insistence, by individuals or political parties that any matter of public importance be got inquired into by a sitting or retired Judge, is the faith, they have in the institution of judiciary, as a whole. They firmly believe that an outcome of an inquiry, headed by sitting or retired Judges, would be dispassionate and would present the correct state of affairs. The very complaint of bias in Commissions of Inquiry, irrespective of its truth, is prone to be treated as a dent into the institution. Several sitting and retired Judges, appointed as Commissions from time to time, acted in an exemplary manner and did not permit any complaint, to come from any quarter, touching on the fairness, independence and impartiality. The attempt here is only to emphasize the need to ensure that no scope is given for such complaints to exist.

56. The petitioner, in the first two writ petitions, has placed before this Court copies of four notices, issued under Section 8-B of the Act, to himself; his father; his wife and his son. It is not in dispute that the father of the petitioner by name Peela Gangadhar is no more. It is also not in dispute that the son of the petitioner, by name P.M. Maharshi, was aged about 5 years, when the irregularities are said to have taken place. The wife of the petitioner, by name, Aruna Devi, was also issued notice under Section 8-B. As indicated in the preceding paragraphs, a notice under Section 8-B is issued by a Commission of Inquiry, whenever it proposes to inquire into the conduct of the person, or it is of the opinion that the reputation of the person is likely to be prejudicially affected by the inquiry. It is just unimaginable as to how the 3rd respondent has chosen to issue a notice under this provision to a dead person. Equally surprising is his act, in issuing a notice, to a minor boy, who was aged 5 years at the relevant point of time. There were no allegations against the wife of the petitioner. The terms of reference were general in nature. If the Judges, who dispose of the references under Section 18 of the Land Acquisition Act, were accused of, awarding compensation for non-existence trees on the land, the Commission has chosen to enquire into the matter by issuing notices to non-existence persons.

57. However, if one looks at the nature of the proceedings, which have taken place in the earlier spell, these acts would hardly be of any surprise. By 1-12-1999 the Commission had examined 916 witnesses (217 Commission Witnesses and 645, ‘scam witnesses’). The documentary evidence is much more startling. Exs. C-1 to C-3011 and Exs. S-1 to S-645 were taken on record. ‘C’ series of the documents have several sub-numbers. In some cases, the numbering is similar to the one given to the sections in the Income Tax Act. For example, in Ex. 130, some of the sub-numbers read as C-130 (aa), aa(1), ab, ab (1) to (4). So is the case with Exs. 129, 131, 134 etc. The effective number of these documents would be more than 10,000. The work is said to be incomplete. For the sake of convenience, the Commission is operating its offices at Hyderabad and Visakhapatnam.

58. Even if a Commission or a Judge is required to write an opinion, or submit a report, on the basis of the existing evidence on record, it is only a person with extraordinary intelligence, or exemplary faculties, that can submit a report, which can be understood by persons of ordinary prudence. The proceedings of the Commission and the developments so far, leave an impression in an ordinary citizen, that either it has omitted to identify a clear direction for it, to proceed with, or has travelled beyond the scope of the terms of a reference. The amount of expenditure involved in undertaking such a gigantic exercise, would certainly be a matter of concern for everyone. The 3rd respondent could have conducted the proceedings in a more meaningful, purposeful and constructive manner.

59. The plea of bias in W.P.No. 1364 of 2005 is based on an allegation that the 3rd respondent forwarded his Bio-data to the then Government through a Government Pleader. The copy of the Bio-data, which runs to about 12 pages, as well as the xerox copy of the cover, through which, it is said to have been forwarded; are filed. The 3rd respondent narrated his “Career Highlights and Major Contributions” as under:

1. “Brought Judicial activism both in pronouncements and administrative discipline.

2. Infused basic honesty and integrity in the discharge of official and judicial management in addition to qualitative and quantitative dispensing of justice.

3. Achieved maximum in taking justice to the doors of needy and poor masses of the society.

4. Improved the method of awarding reasonable compensation in Motor Vehicle accident claim cases quickly and appropriately.

5. Each precedent orients in the concept of social justice and natural justice in the background of the preamble of the Constitution of India.

6. Criminal Justice system is simplified by corrective and clinical means to offenders and comforting and compensating the victims of crime.

7. Precedents are drafted so as to guide the junior and inexperienced members of the legal profession.”

Under the heading of ‘Service Career Achievements’, some of the items read as under:

“Credited with long service record in Indian Judiciary for three and a half decades.

Probably the first judge to computerize judicial and administrative functions of courts.

Probably the turnover of work during such a period appears to be an all time record in Courts both qualitatively and quantitatively commending appreciation from one and all”.

60. A list of 34 persons, together with their telephone numbers, is furnished for reference. It includes the name of a Former Chief Justice of India; five sitting Judges, and two retired Judges of the Supreme Court, at the relevant point of time: The names of some Former Chief Justices, Judges of various High Courts; Advocate-Generals, of States of Karnataka and Andhra Pradesh; certain Senior Advocates, who were Legislators or Ministers; the names of Vice-Chancellors, Professors and Principals of the Colleges also find place in it. The 3rd respondent denied the allegation that he forwarded his Bio-data to the Government. He added that the Bio-data is available on the Internet, and that he never entertained the idea of seeking any assignment from any circle. The contents of the Bio-data have not been disputed.

61. There is nothing on record to disclose that the 3rd respondent had approached any person or authority in the Government, seeking assignment. In fact, the then Government had chosen the 3rd respondent; and there did not exist any necessity for the 3rd respondent to acquaint himself with them. Therefore, the contention of the petitioners in this regard, cannot be accepted.

62. It is difficult to accept that the 3rd respondent had ill-treated the 2nd petitioner in W.P.No. 1364 of 2005, for the reason that there is any amount of controversy, as to what exactly had happened, when the 2nd petitioner was examined before the 2nd respondent. However, from a reading of the extracts of certain proceeding sheet, maintained by the 3rd respondent, it is evident that the 3rd respondent adopted a soft approach towards certain witnesses, and a hard and unreasonable approach towards others. It is not necessary to elaborate much on this, except to observe that the 3rd respondent could have avoided such a situation.

63. For the foregoing reasons, the writ petitions are allowed, and the orders of the Government in G.O.Ms.No. 58, dated 22-6-2004 are set aside. There shall be no order as to costs.