JUDGMENT
B.C. Basak, C.J.
1. This writ petition has been moved before us challenging the notification dated 1-10-91 issued by the State Government whereby the Commission of Enquiry, constituted on 8-12-89, comprising of a single Member, has been reconstituted by addition of two more members.
2. The facts of this case, as far as they are relevant to the present proceedings, lie in a short compass. There had been a serious communal disturbance in Bhagalpur in the year 1989. By a notification dated 8-12-89 the Government of Bihar constituted a commission of Enquiry comprising of a single member, who was a retired Judge of this High Court, under Section 3 of the Commissions of Inquiry Act as follows:-
(a) to enquire into the facts and circumstances leading to communal disturbances in the district of Bhagalpur and adjacent areas on 24th October, 1989 and thereafter;
(b) to enquire into whether these disturbances were preplanned, and, if so, the elements responsible for the same;
(c) to enquire whether measures taken by the District Administration to prevent and deal with the said disturbances were timely and adequate and to fix responsibility for lapses, if any, in this regard.
(d) to recommend measures for preventing recurrence of such disturbances; and,
(e) to consider such other matter relating to these communal disturbances and make such recommendation as the Commission may think it proper and necessary.
3. The relevant facts, as borne out from the record of the Commission, are as follows. After its constitution the Commission held its preliminary sittings on 21-5-90,22-5-90,21 -6-90, 22-6-90, 7-7-90, 18-8-90, 20-8-90 and 1-9-90. After the conclusion of the preliminary sittings, 126 official witnesses were produced on behalf of the district administration, who were examined and cross examined by or on behalf of the contending parties between the period 4-10-90 and 21-8-91. Thereafter till 1-10-91 other contending parties proceeded to examine their witnesses. One witness was examined on behalf of the Bihar Police Association. Seven witnesses were examined on behalf of Murshid Ansari and others. Twelve witnesses were examined on behalf of Jamayete Ulemae Hind. On 27-10-1991 the Commission, as reconstituted pursuant to the impugned notification (Annexure I), commenced its sitting and continued with the enquiry from the stage at which it was reconstituted. In all, the Commission received 483 written statements, after examination whereof, the commission, keeping in view the scope and the purpose of enquiry, allowed the following parties to contest the proceedings as contending parties.
(i) The State of Bihar.
(ii) The District Administration and Police Association.
(iii) Bhagalpur Danga Janch Aayog Sahyog Samiti.
(iv) Shri Ram Shila Pujan Samiti.
(v) Vishwa Hindu Parishad, Bhagalpur.
(vi) Markazi Relief Rabta Committee, Bhagalpur.
(vii) Jamait Ulema-a Hindi, Bhagalpur.
(viii) Md. Murshid Ansari and ten others,
(ix) Milat Welfare Society, Bhagalpur.
(x) Shri Pawan Kumar Gupta and other two,
(xi) C.P.I, and, (xii) C.P.I. (M).
4. We are not concerned with the averments and the allegations is made in the writ petition regarding the merits of the facts relating to the riot and disturbances in question as this is the very subject matter of the statutory enquiry. Here we are only concerned with the validity of the impugned notification by which the Commission of Inquiry comprised of one Member only has been reconstituted by including two more members, namely (1) Shri S. Q. Rizvi, I.P. (Retired), and (2) Shri S. Pathankar, I.A.S. (Retired). Learned counsel for the petitioner has challenged the validity of the impugned notification on two grounds: Firstly, that the Act does not empower the Government to reconstitute the appointed Commission by altering its strength; and, secondly that even if such power is conceded in favour of the Government, in the facts of the present case the exercise of such power was arbitrary and mala fide.
5. On the first point, it has been contended by Mr. Thakur Prasad appearing for the petitioner, that the impugned notification was without jurisdiction as the Government had no power or jurisdiction to reconstitute the one man commission by adding two more members. It has been submitted that there being no vacancy the one-man commission could not have been reconstituted in such a manner. In this connection our attention is drawn to the various provisions of the said Act. The second point, which has been submitted before us, is that in any event, even if such power existed, such power of reconstitution has been exercised in the present case for no reason at all and in any event on extraneous grounds. Accordingly, the said order has not been passed bona fide. In this connection, our attention has been drawn to the fact that in almost 115 sittings, apart from 126 official witnesses, quite a good number of witnesses on behalf of the other contending parties have also been examined without any objection or grievance on behalf of the participants in the proceeding. According to the learned counsel, it is a matter of record that at no stage any aspersion was made against the conduct of the sole member of the Commission, who is none less than a retired Hon’ble Judge of this court. According to him, the Commission has been reconstituted in its present form at the instance of some minority groups, who were trying for the same for a long time and though their requests were refused by the Government at earlier stages, but have been subsequently conceded to, because of reasons having no relevance to the purpose of the statutory powers conferred under the said Act.
6. On behalf of the State, it has been submitted that the State has power and jurisdiction under the Act, to reconstitute the said Commission in the manner as it did, even if there has been no vacancy. On the second point, it was submitted before us that the fact of the matter is that, as admitted in the petition itself, a controversy had been raised by several minority communities and institutions for addition of more members in the said commission. At first, the Government did not take any notice of the same, but, now having taken into consideration the object of the said Commission and that it may be frustrated if such reconstitution is not allowed, such re-constitution was made. Accordingly, it cannot be said that this order for reconstitution is mala fide. It was submitted that it was a question of the subjective satisfaction of the authority and this court cannot interfere with the same.
7. Before I deal with the merits of the contentions, it is proper that I set out the relevant provisions of the said Act.
“Section 3. Appointment of Commission-(1) The appropriate Government may, if it is of opinion that it is necessary so to do, and shall, if a resolution in this behalf is passed by the House of the People, or, as the case may be, the Legislative Assembly of the State, by notification in the Official Gazette, appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions and within such time as may be specified in the notification, and the Commission so appointed shall make the Inquiry and perform the functions accordingly:
Provided that where any such Commission has been appointed to inquire into any matter (a) by the Central Government, no State Government shall, except with the approval of the Central Government, appoint another Commission to inquire into the same matter for so long as the Commission appointed by the Central Government is functioning;
(b)by a State Government, the Central Government shall not appoint another commission to inquiry into the same matter for so long as the Commission appointed by the State Government is functioning unless the Central Government is of opinion that the scope of the inquiry should be extended to two or more States;
(2) The Commission may consist of one or more members appointed by the appropriate Government, and where the Commission consists of more than one member, one of them may be appointed as the Chairman thereof:
(3) The appropriate Government may, at any stage of an inquiry by the Commission fill any vacancy which may have arisen in the office of a member of the Commission (whether consisting of one or more than one member):
(4) The appropriate Government shall cause to be laid before the House of the People or, as the case may be, the Legislative Assembly of the State, the report, if any,, of the Commission of the Inquiry made by the Commission under Sub-section (1) together with a memorandum of the action taken thereon, within a period of six months of the submission of the report by the Commission to the appropriate Government.”.
“Section 8A. Inquiry not to be interrupted by reason of vacancy or change in the constitution of the Commission –
(1) Where the commission consists of two or more members it may act notwithstanding the absence of the Chairman or any other member, or any vacancy among its members.
(2) Where during the course of an inquiry before a Commission, a change has taken place in the constitution of the Commission I by reason of any vacancy having been filled or by any other reason, it shall not be necessary for the Commission to commence the inquiry afresh and the inquiry may be continued from the stage at which the change took place.”
8. So far as the first point is concerned, I am clearly of the opinion that the order is not without jurisdiction. The State Government has the requisite power to reconstitute the Commission, even if there was no vacancy, by adding to its strength. No doubt, there is no specific conferment of power in this regard in the said Act to this effect, but the same can be spelt out from the scheme and the purpose of the Act and this power is implicit in the provisions of the Act itself. The expression “any other reason” in Section 8A of the Act contemplates that even in a case other than a vacancy the appropriate authority has the power to reconstitute such Commission in the manner as it did. If we accept the contention of the petitioner, then the result would be that in the event of the sole member of the Commission for some reason cannot continue, which does not amount to vacancy, even in that case the appropriate Government would have no power to reconstitute the Commission. This was not certainly the object of the Act. It is to be remembered that the object of the Act is to make an inquiry into a matter of public importance so that steps could be taken including taking remedial measures. The purpose of the present reference was not only to find out the cause of such incident and who were responsible for the same, but also to make recommendations so that steps may be taken so that such occurrences do not take place in future.
9. In any view of the matter, in my opinion, in this case Section 21 of the General Clauses Act, 1897, is attracted, which is to the following effect:-
“Section 21. Power to issue, to include power to add to, amend, vary or rescind, notification, orders, rules or bye-laws —Where, by any Central Act or Regulations, 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 notification, orders, rules or bye-laws so issued”.
In my opinion, this provision entitles the authority to amend the earlier order by way of constitution of the Commission.
It is true that the provisions of the General Clauses Act are mere rules of interpretation and it does not apply automatically in each and every case. It all depends on the facts’ and circumstances of each case. However, in my opinion, there is no question of any bar in the Act for the applicability of this section. In the case of State of Bihar v. D.N. Ganguly, AIR 1958 SC 1018, which is relied upon in support of the petition, the Supreme Court looked into the different provisions of the Industrial Disputes Act and held that once a reference under Section 10(1) of the Industrial Disputes Act was made, this could not be cancelled by resorting to the provisions of Section 21 of the General Clauses Act. However, in my opinion, the provisions of the Industrial Disputes Act and the Commissions of Inquiry Act are not in pari materia. Apart from that I have carefully and independently examined the provisions of the present Act and, in my opinion, there is nothing in this Act to exclude the operation of the provisions of Section 21 of the General Clauses Act.
10. There is another aspect of the matter. Reference may be made to Section 14 of the General Clauses Act, which is set out herein-below:
“Section 14. Powers conferred to be exercisable from time to time – (1) where, by any Central Act or Regulation made after the commencement of this Act, any power is conferred, then unless a different intention appears, that power may be exercised from time to time as occasion requires.
(2) This section applies also to all Central Acts and Regulations made on or after fourteenth day of January, 1887.
11. Under Sub-section (2) of Section 3 of the said Act the Commission may consist of one or more member appointed by the appropriate Government. In this case, the Government had initially appointed one member commission. It could have appointed initially such commission consisting of more than one members. Merely because once such power has been exercised, it is not prevented from exercising such power “from time to time as occasion requires”. Accordingly, on the basis of Section 14 of the General Clauses Act also, such reconstitution was permissible.
12. Accordingly, I hold that even in the case where the Government initially appoints a commission comprised of only one member, it is empowered to reconstitute the same by altering its strength if the situation so demands. Accordingly, the impugned notification cannot be said to be beyond the jurisdiction and powers of the State Government. The first contention raised on behalf of the petitioner therefore, fails.
13. The second contention is regarding the question of mala fide. At the outset, I shall deal with the contention raised on behalf of the State that it is a question of subjective satisfaction of the State Government and, accordingly, it is entirely a matter for the State Government and the Court cannot examine the same I am unable to accept this contention. It is now well settled that even when some power is to be exercised on the basis of any opinion or satisfaction of any authority, that does not mean that it is purely a subjective satisfaction, and therefore, completely beyond the scope of the judicial review. As it is now well settled, it is a kind of dichotomy. It is not subjective in the sense that it is wholly dependent on the opinion of the authority concerned, even if there be no material at all. Even if such power is to be exercised on the formation of opinion of the State, still it is subjective only to a limited extent and it is not subjective in total sense. It is objective so far as the materials are concerned on the basis of which such opinion is to be formed. There must be some material germane to the formation of the opinion of or satisfaction by the authority. To that extent it is objective and not subjective. If there is such material, which is relevant and germane, then the subsequent formation of opinion or satisfaction on the basis of the same by the authority concerned is subjective. If there is some relevant material, then the opinion of the Government cannot be challenged on the ground that on such material such opinion should not have been formed. Accordingly in my opinion, in the facts and circumstances of this case, if we find that there was no material before the State Government,! which was germane and relevant to the question in that event the formation of such opinion can be successfully challenged.
14. If we look at the same from the point of view of exercise of discretion by the authority concerned, even then the Court can still examine whether the exercise of discretion is bona fide or arbitrary. If the discretion has been made arbitrarily or on consideration of materials which were not germane or relevant, then the exercise of such discretionary power can be struck down as mala fide. In this context, we have to examine the materials before us on the question of mala fide not for the purposes of appraisement or assessment of the same, but for the limited purpose of ascertaining whether there was any material germane to the question and such cannot be termed as extraneous. In this context, I may refer to the petition itself, the counter affidavit filed on behalf of the State, and to the relevant records produced by the Commission and the State Government before us. From a perusal of the same it cannot be said that there was no material before the Government in the facts and circumstances of this case or that such materials were not germane or relevant to the question. The undisputed fact is that some time after initial constitution of the Commission and after certain proceedings had taken place, there were some controversies regarding the continuation of the one member commission. There had been certain agitations, allegations and representations to this effect, which included representations made by some minority community groups. It is also not disputed before us that this controversy also took in the form of an article published in a newspaper regarding the one-member commission. As a matter of fact, at the direction of this; one-member Commission, a reply was also sent by Secretary of the Commission to the newspaper concerned, with copies to various authorities, in respect of such allegations. It also appears from the records that even the Chairman of the Minority Commission had written a letter to this effect to the Government complaining about the continuation of such commission by only one member. Some organisation representing the minority Muslim community was making demand for inclusion of more members the Commission.
Stand was taken that of more members are not included in the commission, then they would not participate in the proceeding of the Commission. In this context, we should also keep in mind the purpose for which this Commission was constituted. It is not in dispute that a vicious communal riot involving the minority Muslim community took place in Bhagalpur, which is the subject matter of enquiry of this Commission. As a matter of fact, in the petition itself, it is stated that a peaceful procession was attacked by the minority community. To ascertain the cause of such riot and who were responsible for the same, that this commission was constituted. But that is not all. It would be apparent from the terms of reference itself that the purpose of this Commission was also to find out as to what remedial measures may be taken to prevent such occurrences in future. If a section of minority community, who are alleged to be involved in such riot withdraws from the Commission, then no purpose would be served by the “completion” of the work of this Commission, particularly when it is to suggest remedial measures. Suggestion of such remedial measures may be totally useless and infructuous if only one member commission is allowed to function when it appears that at least a section of the minority community may not accept the same as binding on them. As a result of the same, any remedial measure suggested by the Commission may prove infructuous and totally unenforceable. It is true that a number of hearing have already taken place and that a large number of witnesses have already been examined. However, from the records it is quite clear that large number of witnesses intended to be produced on behalf of the contending parties are still to be examined. It is not at a final stage. The present Commission is nowhere near its completion. It is true that two new member would not have the opportunity to observe the demeanour of the witnesses already examined but that by itself cannot be a bar to reconstitution of the Commission.
15. Accordingly, on the facts and in the circumstances of this case, I am of the opinion that there were materials before the authority concerned on the basis of which it was open to the authority to form its opinion that in the present situation this one-member Commission should no longer continue and that it should be reconstituted by addition of two more members, one of which is a member of the minority community. In my opinion, the formation of this opinion, having regard to the materials available to the authority cannot be said to be arbitrary. In my opinion, such discretionary power had been exercised bona fide on the basis of material considerations. In that view of the matter, I also reject the second contention raised.
16. Accordingly, I dismiss the writ application and vacate all interim orders.
17. There is one thing which I would like to add before part with this case. In this case, as I have already pointed out, some question was raised after one stage regarding continuation of the one man Commission. There was some publication in some newspaper, criticising the same. I do not want to go into the merits of the same. Surprisingly enough, I at the instance of the Commission the secretary of the Commission wrote a letter, with copies to others, justifying the one man Commission. I do not think that it was fit and proper on the part of the Commission to adopt such course of action. The Commission should not have got itself involved in such controversy. It must not behave like any i ordinary individual. The Commission has been given ample protection by Section 10A of the said Act, which I set out hereinbelow:
“Section 10A. Penalty for acts calculated to bring the Commission or any member thereof into disrepute-
(1) If any person, by words either spoken or intended to be read, makes or publishes any statement or does any other act, which is calculated to bring the Commission or any: member thereof into disrepute, he shall be punishable with simple imprisonment for a term which may extend to six months, or with fine, or with both.
(2) The provisions of Section 198B of the Code of Criminal Procedure, 1898, shall apply in relation to an offence under Sub-section (1) of the said Section 198B, subject to the modification that no complaint in respect of such offence shall be made by the public prosecutor except with the previous sanction-
(a) in the case of a Commission, or member of a Commission appointed by the Central Government, of the Central Government; or
(b) in the case of a Commission, or member of a Commission appointed by the State Government, of the State Government”.
18. If the Commission or any other individual person was of the view that any act or conduct of any one comes within the scope of the said section, then it would have been open for the Commission or such person to take appropriate steps under the aforesaid provisions. As a matter of fact, it appears that one such attempt was made by some one to invoke the provision of Section 10A. In any event, I do not appreciate the action of the Commission in this regard.