Bansi Lal, MLA (Ex.Chief Minister) vs State of Haryana and others

J.S. Narang, J.—The petitioner seeks the issuance of a writ of certiorari for quashing the notification dated December 7, 1999, issued by respondent No. 1 exercising the powers conferred under subsection (1) of Section 3 of the Commission of Inquiry Act, 1952 (hereinafter referred to as "the Act"), published in Haryana Government Gazette (Extra) dated December 7, 1999 (copy Annexure P5) and also for quashing the show cause notice dated May 2, 2001 issued by the Commission of Inquiry, copy Annexure P7.

The aforesaid relief has been claimed on the premises that the Commission of Inquiry has been appointed in contravention of Section 3 of the Act. It is claimed that the ingredients as envisaged in the aforesaid provision, have not been fulfilled, thus, the appointment of such Commission is not sustainable under law. It shall be apposite to notice the aforesaid provision which reads as under :

"3. Appointment of Commission. (1) The appropriate Government may, if it is of opinion that it is necessary to do, and shall, if a resolution in this behalf is passed by each House of Parliament or, as the case may be, the Legislature of the State, by notification in the Official Gazette, appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions and within such time as may be specified in the notification, and the Commission so appointed shall make the Inquiry and perform the functions accordingly:

Provided that where any such commission has been appointed to inquire into any matter

(a) by the Central Government, no State Government shall, except with the approval of the Central Government, appoint another Commission to inquire into the same matter for so long as the Commission appointed by the Central Government is functioning ;

(b) By a State Government, the Central Government shall not appoint another commission to inquire into the same matter for so long as the Commission appointed by the State Government is functioning, unless the Central Government is of opinion that the scope of the inquiry should be extended to two or more States.

(2) The Commission may consist of one or more members appointed by the appropriate Government, and where the Commission consists of more than one member, one of them may be appointed as the Chairman thereof.

(3) The appropriate Government may, at any stage of an inquiry by the Commission, fill any vacancy which may have arisen in the office of a member of the Commission (whether consisting of one or more than one member).

(4) The appropriate Government shall cause to be laid before each House of Parliament or, as the case may be, the Legislature of the State, the report, if any, of the Commission on the inquiry made by the Commission under sub section (1) together with a memorandum of the action taken thereon, within a period of six months of the submission of the report by the Commission to the appropriate Government".

It is averred that the petitioner was elected as a Member of the Legislative Assembly of Haryana and having been elected as Leader of the party, was appointed as Chief Minister of Haryana. He was administered the oath of office on May 11, 1996 along with Council of Ministers. The petitioner announced "Prohibition Policy" just after taking oath. It had been promised by him while seeking election to the Legislative Assembly and was also the manifesto of the party. Consequently, the Council of Ministers met on May 30, 1996 and decided to introduce total prohibition in the State of Haryana with effect from July 1, 1996. However, it was directed that designated establishment of the military and para military forces would be given an exception to the general rule. Foreigners and Indians, returning from abroad had been allowed to carry permissible quantity of liquor while transmitting through Haryana. It had been further clarified that the distilleries would be allowed to manufacture only rectified and denatured spirit and not potable alcohol. Breweries would close down after six months notice to them or on the expiry of their period of licence, whichever is earlier. In pursuant thereto, the Governor of Haryana promulgated Ordinance under Clause (1) of Article 213 of the Constitution of India on May 31, 1996, which was published in Haryana Government Gazette (Extra) on May 31, 1996 (Part II) Legislative Department. Copy of the Ordinance has been appended as Annexure P2. Resultant effect was that the import or export of any intoxicant into or from the State of Haryana by way of transport, manufacture, sale, purchase, consumption, possession of any intoxicant etc. was completely prohibited. It is averred that imposition of/promulgation of Prohibition Policy statutorily brought a sigh of relief in the general public, the resultant effects were encouraging and positive such as the crimegraph relating to every kind of crime fell down and a complete tranquillity prevailed in the whole of State of Haryana.

However, the aspect was also debated such as revenue loss to the State Exchequer on account of Prohibition Policy but the same was countered on the premises i.e. to protect the citizens of the country visavis level of nutrition and the standard of living for the purpose of improving public health. It is the duty of the State to bring about prohibition of consumption of intoxicating drinks and drugs except for medical purposes. The loss of revenue should be termed as microscopic loss while placing the public health paramount. Thus, the Prohibition Policy imposed by the State of Haryana could not be termed in any manner arbitrary, against any laws framed by the Parliament or the State Legislature or could be termed as violative of any provisions of the Constitution of India. Rather, the Prohibition Policy was a laudable decision for the welfare of the citizens and the residents of the State of Haryana. It was a conscious decision taken by the State of Haryana to bring about an ideal State for the citizens to live in. The promulgation of Prohibition Policy was not the end but the beginning. In this regard, a High Powered Committee headed by the then Chief Secretary of Government of Haryana was constituted to monitor the implementation of the Prohibition Policy. The neighbouring States were also made aware of the positive act and thinking of the State of Haryana. In this regard every kind of cooperation, help and endeavour was asked, for achieving the successful imposition and implementation. For achievement of this objective, stringent laws and government instructions were required to be issued by the concerned quarters. The violations of the same were to be dealt with mathematically to make the State of Haryana an example for others to follow.

The effects of implementation of the aforesaid policy needed to be examined at the grass root level and also that the rigour of the policy may not be misused by anyone to exploit the society. There were elements who could not resist and who could not live without the intoxicants. The results were damaging such as, the violators acted in a fashion to hoodwink the stringent implementation and the monetary positive effect of the same lost its luster under the dark colour of element of corruption. The then Council of Ministers was the first one to get the feel of it. Thus, after a passage of about two years the collective consensus of the Cabinet came to be that the Prohibition Policy should be withdrawn because the positive effect came to be much less than the negative. It became difficult to create a balance between the two. The overwhelming weight on the negative left the State Government with no other alternative but to withdraw the Prohibition Policy. Consequently, the Prohibition Policy was withdrawn vide notification dated March 17, 1998. Living in by the idealism was not considered appropriate as the State was not fully geared up where the residents of the State of Haryana were not fully educated in this regard. For some, it had become a way of life, without the intoxicant, they could not live and work. It looked that some time was required to educate the residents of Haryana. Before the notification was issued, the matter was considered in depth by the Council of Ministers and after due deliberations, the most unwilling decision had to be taken by the Cabinet.

The elections to the Lok Sabha were held in the month of February 1998. The imposition of Policy of Prohibition was made an issue for defeating the party of the petitioner. Resultant, the party of the petitioner lost and that the party of respondents No. 3 and 4 was returned to the Legislative Assembly. Resultant, respondent No. 3 Shri Om Parkash Chautala, after having been chosen Leader of the party was appointed as the Chief Minister. The Council of Ministers under the leadership of Shri Om Parkash Chautala, took a decision in the cabinet meeting held on November 29, 1999 and appointed a Commission of Inquiry. Mr. Justice G.S. Chahal, Retired Judge of this Court has been appointed as the one man Commission of Inquiry. Upon the decision of the cabinet, a notification dated 7.12.1999 was issued which was published in the Haryana Government Gazette (Extra) on December 7, 1999, copy Annexure P5. The terms of reference of the Commission have been spelt out. It shall be apposite to notice the same which read as under :

(a) to enquire into the circumstances leading to the imposition of Prohibition in the State of Haryana with effect from Ist July, 1996 and its implications;

(b) to inquire into the allegations of widespread corruption due to smuggling of liquor (creation of liquor mafia in the State as well as the role played by persons in high places and their kith and kins abetting these acts;

(c) to enquire into the circumstances under which the policy of prohibition was withdrawn with effect from Ist April, 1998 and its implications like the resultant rise in crime after lifting of prohibition and other matters incidental thereto; and

(d) to enquire into allegations that some persons played an active role in this withdrawal for pecuniary gains."

It has been averred that Mr. Devi Lal, the former Chief Minister of Haryana, had earlier contested the assembly elections and was defeated in the year 1972. However, in the year 1977, he won the election and became the Chief Minister of Haryana and at that time the petitioner was arrested and handcuffed at his instance in an allegedly false criminal case, to cause further harassment to the petitioner, numerous false criminal cases were registered at different places in the State of Haryana and a number of Inquiry Commissions had been set up to enquire into alleged false allegations made against the petitioner. It is further alleged that whenever Mr. Devi Lal and Mr. Om Parkash Chautala, have come into power and have become Chief Ministers, false criminal cases have always have been registered against the petitioner, his son Shri Surender Singh and other members of the family and so also their active supporters. In retaliation, the petitioner had never ever got criminal cases registered against the Mr. Om Parkash Chautala or his family members, whenever he became the Chief Minister. It is also averred that during the parliamentary elections, Shri Ajay Singh Chautala son of Mr. Om Parkash Chautala, contested the election from Bhiwani parliamentary constituency and he was defeated by Shri Surender Singh son of the petitioner. As a consequence thereof, the present Chief Minister nurtured grievance against the petitioner and his son. However, in the parliamentary elections held on September 5, 1999 Shri Surender Singh was defeated by Shri Ajay Singh Chautala and his election has been challenged by him by way of Election Petition No. 2 of 1999 which is pending in this Court. It is also alleged that it ws in July 1990 immediately after the parliamentary elections false criminal case had been registered by way of registration of FIR No. 342 dated 1.10.1999, under Sections 409, 420, 467, 468, 471 read with section 120B IPC and also under Section 13(1)(c) and (d) of the Prevention of Corruption Act. It has also been alleged that in respect of the earlier FIRs registered in the year 1989, the petitioner has been discharged vide order dated 15.4.1994 passed by the Chief Judicial Magistrate, Bhiwani. In respect of second FIR the petitioners and others who had been named in the FIR were acquitted by the Sessions Judge, Bhiwani vide judgment dated 3.1.1994. Thus, it is obvious that the petitioner, his close relations and his supporters have always been victimised whenever Shri Om Parkash Chautala became the Chief Minister and/or came into power. It has been further averred that the petitioner had undergone open heart surgery on November 2, 1999, in All India Institute of Medical Sciences, New Delhi and he had submitted the bills for medical reimbursement to the Government of Haryana in the capacity of sitting MLA but the claim was declined. The petitioner had to file CWP No. 8570 of 2000, in this Court, which was finally allowed by this Court wherein a direction had been issued to the Government of Haryana to allow the reimbursement of medical bills incurred by the petitioner in the regard. The petitioner had asked for the benefits as Leader of the Opposition, as he had been elected and recognised as such, in the year 1999. A communication dated November 22, 1999, was addressed to the present Chief Minister but no facility as per the entitlement to the Leader of the Opposition has been granted till today. The petitioner filed CWP No. 11328 of 2000, in this regard, which is pending in this Court. The petitioner had also asked for adequate security but none was supplied and in that regard also CWP No. 9223 of 2000, has been filed which is pending before this Court. The cumulative reading of the averments has been projected as personal rivalry amongst two families, which cannot be spelt out as a political rivalry only. It has been averred that Mr. Justice G.S. Chahal (Retired), has been appointed as the Commission of Inquiry vide the impugned notification, who is married into the family, who are related to Mr. Parkash Singh Badal, who was the Chief Minister of Punjab at the relevant time. The said family is from village Badal and that the present Chief Minister of Haryana i.e. Mr. Om Parkash Chautala and Mr. Parkash Singh Badal are very closely known to each other. It is alleged that Mr. Om Parkash Chautala has helped Mr. Parkash Singh Badal for obtainment of certain benefits in the State of Haryana for himself and/or for his close relations. Such benefits had been questioned when the petitioner was the Chief Minister of Haryana. A Special Leave Petition had been filed before the Apex Court but when Mr. Om Parkash Chautala, became the Chief Minister, in pursuant to his instructions, the Special Leave Petitions were withdrawn accordingly, resultantly passing on the benefit to Mr. Parkash Singh Badal.

It has also been averred that Prohibition Policy, after having been introduced during the tenure of the petitioner as Chief Minister, was challenged before this court by way of Civil Writ Petitions filed by the distillery owners and various other persons. The said petitions were dismissed by this Court by upholding the Policy of Prohibition. The orders of this Court were upheld by the apex Court, as the special leave petitions filed were dismissed. Thus, the legality of the Policy of Prohibition could not be enquired into once all over again. Since the policy stood upheld by this Court and so also by the apex Court, whether the fiscal effects in respect thereof are again required to be gone into, especially, in view of the fact that the then Chief Minister i.e. the petitioner after examining the effect of the Prohibition Policy for a period of two years decided to withdraw/revoke the policy for the reasons which had been submitted by various Departments of the Government. It is strange that the policy having been upheld and the fiscal effects having been examined by the then Chief Minister i.e. the petitioner and the policy having been withdrawn, yet again, a Commission has been appointed to go into this aspect. Obviously, for achieving the ulterior objects i.e. cause harassment and for settlement of political vendetta between the two families. Under the cover of this, settle the personal rivalries amongst the two families, despite the fact, the petitioner has never ever acted or reacted with vengeance by abusing and using the political office.

The appointment of the Commission has been challenged on various grounds i.e. ;

(1) For the meeting of the Council of Ministers scheduled to be held on November 29, 1999, no agenda had been circulated amongst the Council of Ministers for appointment of Commission of Inquiry. Thus, the Council of Ministers were not even aware of the fact that such kind of decision is to be taken in the meeting of the Council of Ministers. Admittedly, no facts and figurers had been circulated to the Council of Ministers for taking such decision;

(2) there was no material before the Council of Ministers on the basis of which, an opinion for taking a conscious decision for the appointment of the Commission of Inquiry could be taken. No mention of the same has been made while recording minutes relating to the item taken up allegedly with the permission of the chair. A persual of the minutes recorded would show the absence of the same, because none has been mentioned in the notification issued by the Government of Haryana, copy appended as Annexure P5. Thus, the appointment of Commission of Inquiry suffers from the basic infirmity as envisaged under section of the Act (ibid);

(3) no conscious decision having been taken by the Council of Ministers in the absence of any material produced before them and the matter having been initiated by the Chief Minister himself, would show that it was not the decision of the Council of Ministers but an individual decision of the Chief Minister, who was definitely influenced by the personal animosity against the petitioner, which is readable from the instances and the acts of omission and commission committed by the Chief Minister visavis the petitioner and also his close relations apart from his supporters;

(4) the status of the Prohibition Policy, having been upheld by way of judicial scrutiny, which is evident from the dismissal of the petitions filed before this Court, and the same having been upheld by the apex Court but on account of the fiscal effect the policy having been withdrawn/revoked, the appointment of Commission of Inquiry to go into this once all over again would not fall within the competence and jurisdiction of Government of Haryana nor it would fall within the competence and jurisdiction of the Commission of Inquiry;

(5) the Council of Ministers did not take any decision in respect of the matter pertaining to which the Commission of Inquiry has been appointed and further no decision has been taken that the matter having been deliberated upon is a matter of public importance. It was imperative on the part of the Council of Ministers, who are stated to have allegedly opined, whether such the matter which relates to Prohibition Policy, falls within the mischief of "definite matter of public importance". Since no such decision was taken, the appointment of Commission of Inquiry is not sustainable under law; and

(6) The appointment of Commission of Inquiry is tainted with mala fide intention of the Chief Minister as the decision in respect thereto cannot be termed as conscious decision of the Council of Ministers. Since the decision of appointment of the Commission is tainted the same is not sustainable under law.

The respondents i.e. the Government of Haryana, Commission of Inquiry and Mr. Om Parkash Chautala, the present Chief Minister, Haryana, have filed their respective replies and have contested the petition.

So far as Government of Haryana is concerned, the preliminary objection has been taken that the present petition is not maintainable as the scope of Commission of Inquiry is investigative and probative as is evident from the terms of reference, as such, the Commission has been empowered to look into the status while probing the effect of prohibition and the reason which culminated into lifting the prohibition. Would such reasons absolve the Chief Minister of the State for having caused fiscal losses to the State Exchequer ? Thus, the petitioner does not have the locus standi to file the present petition because the terms of reference do not spell out seeking opinion for indicting an individual. Thus, it cannot be said that the petitioner is aggrieved of the decision of the Government. As per the provisions of law, the scope and ambit of the Commission is recommendatory in nature and not punitive. It is comparable with a think tank for the government. It has been further averred that the petition is premature as the Commission of Inquiry has not recorded the finding so far. The petitioner has been granted opportunity to submit his stand in respect of the imposition and revocation of the Policy of Prohibition. It is also the stand of the Government that the government is competent and entitled to appoint Commission of Inquiry in respect of the acts of omission and commission pertaining to the acts of the then Government which was captained by the petitioner. It is further averred that the appointment of Commission of Inquiry was a conscious decision of the State Government as the said decision was taken in the meeting of Council of Ministers and that the same cannot be ascribed or described as the decision of the Chief Minister Haryana alone. The loss which has been caused to the State Exchequer on account of the Policy of Prohibition promulgated by the Chief Minister, is certainly a matter of public importance and that the decision has been taken by the Council of Ministers accordingly. The scope of reference has been clearly and succinctly provided i.e.

(a) The circumstances leading to the imposition of Prohibition in the State of Haryana with effect from July 1, 1996 and its implications ;

(b) the allegations of wide spread corruption due to smuggling of liquor/creation of liquor mafia in the State as well as the role played by persons in high places and their kith and kin in abetting these acts;

(c) the circumstances under which the Policy of Prohibition was withdrawn with effect from April 1, 1998 and its implications like the resultant increase in crime after lifting of Prohibition and other matters incidental thereto; and

(d) allegations that some persons played active role for the withdrawal of the Prohibition Policy for pecuniary gains.

Thus, the legality of the Prohibition Policy has not been referred to the Commission of Inquiry but the circumstances which led to the imposition of such policy have been asked to be examined, meaning thereby as to whether the sufficient facts and circumstances existed for imposition of such policy. It has further been required from the Commission to submit a report to the effect as to whether the corruption became rampant for the creation of liquor mafia and for the sale of the liquor illegally. This finding has been required to be given by the Commission in view of the report which was placed before the then Chief Minister i.e. the petitioner, when the decision was taken for withdrawing the Policy of Prohibition. The Commission would be required to make recommendation to the effect as to why the circumstances which have culminated into withdrawal of the Prohibition Policy were not taken into consideration while imposing the Policy of Prohibition. It has also been pleaded that the petitioner having already submitted himself to the jurisdiction of the Commission, cannot be permitted to raise the plea now for challenging the jurisdiction of the Commission. The petitioner has categorically admitted the factum of having appeared before the Commission, a request is stated to have been made by his counsel for inspecting the record before submitting reply to the show cause issued by the Commission, which is evident from the reply submitted and plea raised for dismissing the petition, in that context reference has been made to para 13 of the preliminary objection. Apart from this, it has also been stated by the Commission in its reply that Shri Surender Singh son of the petitioner had been directed to appear before the Commission on November 24, 2000 and that he duly appeared and has raised all the pleas. Thus, the petitioner and his son have participated in the porceedings before the Commission and have never ever raised any objection regarding the procedure adopted by the Commission or its functioning much less the question of jurisdiction. In fact, they conceded to the jurisdiction way back in November 2000/2001 but the present petition has been filed on October 30, 2001. Thus, they are estopped from turning about for challenging the jurisdiction and appointment of the Commission.

It may be noticed that the aforesaid plea has been taken by the Commission in its reply and that no such plea has been taken by respondents No. 1 and 3. It has also been averred in reply by the Commission that the counsel for the petitioner appeared before the Commission and requested for inspection of the relevant record and to take notice thereof. The request was allowed and the relevant record was made available for inspection by the counsel for the petitioner. Thus, the petitioner and his son having participated in the proceedings before the Commission and having not raised any objection by the Commission regarding its functioning, resultantly they are estopped by their own act and conduct from challenging the constitution, jurisdiction and functioning of the Commission. It has also been alleged that the petition suffers from delay and laches as the Commission was constituted in the year 1999 whereas the present petition has been filed after a delay of about two years.

It has also been pleaded by respondents No. 1 and 3 that the appointment of Commission of Inquiry was a conscious decision of the State Government, which was taken in the meeting of Council of Ministers and that the said decision was not the decision of the Chief Minister, Haryana, alone. It is further averred that Members of the Cabinet are the representatives of the public and that the terms of reference of the Commission were duly discussed in the meeting of Council of Ministers on the basis of the information which had been gathered by them from the public. Thus, there was sufficient material with the Government and was available before the cabinet when the decision for appointment of Commission of Inquiry was made. The allegations of mala fides have been emphatically denied. It has been further averred that definite matter of public importance was involved because it related to the loss which had been caused to the State Exchequer on account of enforcement and implementation of the Prohibition Policy. Thus, the reference itself notifies the gravity and the tinge of public importance. It may be noticed that not even a single Member of the Council of Ministers of Haryana has filed any affidavit in regard to the manner and the method in which the item was allegedly taken up with the permission of the chair. In this regard nothing is decipherable from the affidavit submitted by Mr. Om Parkash Chautala, Chief Minister, Haryana, nor such fact has been disclosed in the reply filed by respondent No. 1Government of Haryana. It was also not been stated that at whose instance the item had been initiated in the meeting of the Council of Ministers held on November 29, 1999. Upon the observations of the Court learned Advocate General, Haryana, had asked for the indulgence of this Court for filing the affidavit of the ministers who had attended the meeting of the Council of Ministers. Such indulgence could not be given as the observation of the Court was being sought to be encashed, resultantly, the prayer was declined.

Mr. H.S. Hooda, Senior Advocate, appearing on behalf of the petitioner has addressed arguments by submitting the same under various heads i.e. :

(1) No material had been placed before the Council of Ministers for forming an opinion for taking conscious decision for appointing Commission of Inquiry and defending the terms of reference accordingly.

(2) No decision had been taken by the Council of Ministers that the matter discussed and taken up as an agenda with the permission of the chair is a definite matter of public importance. In the absence of such decision, the Government of Haryana is not competent to take decision/issue notification for appointing a Commission of Inquiry;

(3) the power conferred upon the Government under section 3 of the Commission of Inquiry Act, stands subjected to in built restrictions as contained in the aforesaid provision i.e. an opinion must be formed based upon the material placed before the Council of Ministers and the mater should be adjudged to be of definite public importance. If the said ingredients are not fulfilled, the notification issued for appointment of Commission of Inquiry, would be null and void;

(4) the terms of reference/scope of reference to the Commission of Inquiry already stood concluded by a judgment of this Court rendered in re: M/s Rattan Singh Kishan Chand v. State of Haryana, CWP No. 8597 of 1996, decided on December 17, 1996, whereby the scope and objects of "Prohibition Policy" have been upheld and that the said judgment has been further affirmed by the apex Court as the Special Leave to appeal filed against the said judgment has been dismissed. Thus, it cannot and would not fall within the domain and ambit of Commission of Inquiry to look into the credulity and also the effect thereof. Such an act on the part of the Government would mean conferring appellate jurisdiction over and above this Court and so also the apex Court, which is not sustainable under law;

(5) the appointment of Commission of Inquiry having been made at the behest of Mr. Om Parkash Chautala, Chief Minister, Haryana, who had always nurtured animus towards the petitioner, which stands corroborated from the facts narrated in the petition, thus, suffers from the rigour of mala fides. Resultantly, effecting the political image of the petitioner for all times to come.

Since the arguments have been addressed as per the pleadings, it shall be appropriate to notice the same accordingly.

(1) No material had been placed before the Council of Ministers for forming an opinion for taking conscious decision for appointing Commission of Inquiry and defining the terms of reference accordingly;

Learned counsel for the petitioner has argued that before the Government makes up its mind for exercising the powers under the Commission of Inquiry Act, 1952, it is incumbent upon the Council of Ministers to form an opinion on the basis of material placed before them for the purpose of appointing a Commission of Inquiry. The aforesaid decision has a far reaching effect i.e. the persons holding public offices, Government Offices or dwelling in the political arena are to be held responsible upon recommendations which may be made by the Commission of Inquiry so appointed. Apart from this, the expenditure has to be incurred from the State Exchequer and for incurring such expenditure a conscious decision is required and expected to be taken by the Council of Ministers. If careless decisions are allowed to be taken, such decisions again may have to be subjected to another Commission of Inquiry. The purpose and object of appointing a Commission of Inquiry is, to be educated conclusively visavis a person holding public office, Government Office or is in the field to guide and assist and serve the sovereign at large. The framers of the statute incorporated the provision couched in Section 3 of the Act, consciously and with definite constraints required to be fulfilled before a Commission of Inquiry is appointed. Forming an opinion is a responsible act to be performed by the Council of Ministers. Lest the Council of Ministers may go wrong, it would be necessary that the relevant requisite material should be placed before the Council of Ministers enabling them to form an opinion while taking a conscious decision. The decision has to be taken subjectively and not objectively. A trust is imposed in the Council of Ministers by the sovereign that they shall act with honesty, dignity and uprighteousness. Thus, to test their acts visavis the aforesaid principles, the rigours have to be provided and they should be inbuilt in a provision to act as humps to make the person wake up while taking the conscious decisions. Thus, it is incumbent upon the Council of Ministers to ask for the material or it should be provided otherwise for forming such opinion. The framers of the provision have used the word "opinion" intelligibly and consciously for creating a check upon the power to be used by the Council of Ministers. The emphasis has been used upon the words "....if it is of opinion that it is necessary to do so.....".

It is further argued that no opinion can be formed without the material pertaining to the matter is examined in the correct perspective. There is vast difference between a personal opinion and a subjective opinion. The personal opinion can be based upon the basis of personal experiences, view points formed and the kind of life which has been led by the person concerned. Whereas, the subjective opinion is primarily based upon the material placed and so also the facts, circumstances, acts of omissions and commissions attributable to a set of persons or an individual would be necessarily required to be examined before such opinion is formed. It would be a judicious decision, if the opinion forming personality is able to deprecate itself from the personal opinion visavis the subjective opinion to be taken in respect of the person in the dock, when it is meant in the larger interest of the society.

Learned counsel for the petitioner has made reference to Article 356 of the Constitution of India and has argued that the words "satisfaction" used in the Article would mean formation of opinion with subjective satisfaction to be arrived at by the President for coming to a conclusion and holding to be a case of failure of constitutional machinery in the State. Thus, subjective satisfaction should be read into opinion. Reliance has been placed upon a judgment of the apex Court rendered in re: S.R. Bommai and others v. Union of India and others, AIR 1994 Supreme Court 1918. A pointed reference has been made to para 57 of the aforesaid judgment and the specific reference to paras 1 and 2 contained in the summarised form in para 365. The aforesaid paras read as under :

"From these authorities, one of the conclusions which may safely be drawn is that the exercise of power by the President under Art. 356(1) to issue Proclamation is subject to the judicial review at least to the extent of examining whether the conditions precedent to the issuance of the proclamation have been satisfied or not. This examination will necessarily involve the scrutiny as to whether there existed material for the satisfaction of the President that a situation had arisen in which the Government of the State could not be carried on in accordance with the provisions of the Constitution. Needless to emphasise that it is not any material but material which would lead to the conclusion that the Government of the State cannot be carried on in accordance with the provisions of the Constitution which is relevant for the purpose. It has further to be remembered that the Article requires that the President "has to be satisfied" that the situation in question has arisen. Hence the material in question has to be such as would induce a reasonable made to come to the conclusion in question. The expression used in the Article is "if the President.... is satisfied". The word "satisfied" has been defined in Shorter Oxford English Dictionary (3rd Edition) at page 1792 as "4. To furnish with sufficient proof or information, to set free from doubt or uncertainty, to convince; 5. To answer sufficiently (an objection, question); to fulfil or comply with (a request); to solve (a doubt, difficulty); 6. To answer the requirements of (a state of things, hypothesis etc.,) to accord with (conditions). Hence it is not the personal whim, wish, view or opinion or the ipse dixit of the President de hors the material but a legitimate inference drawn from the material placed before him which is relevant for the purpose. In other words, the President has to be convinced of or has to have sufficient proof of information with regard to or has to be free from doubt or uncertainty about the state of things indicating that the situation in question has arisen. Although, therefore, the sufficiency or otherwise of the material cannot be questioned, the legitimacy or inference drawn from such material is certainly open to judicial review.

It has also to be remembered in this connection that the power exercised by the President under Article 356(1) is on the advice of the Council of Ministers tendered under Art. 74(1) of the Constitution. The Council of Ministers under our system would always belong to one or the other political party. In view of the pluralist democracy and the federal structure that we have accepted under our Constitution, the party or parties in power (in case of coalition Government) at the Centres and in the States may also not be the same. Hence there is a need to confine the exercise of power under Art. 356(1) strictly to the situation mentioned therein which is a condition precedent to the said exercise. That is why the framers of the Constitution have taken pains to specify the situation which alone would enable the exercise of the said power. The situation is no less than one in which "the Government of the State cannot be carried on in accordance with the provisions of the Constitution." A situation short of the same does not empower the issuance of the Proclamation. The word "cannot" emphatically connotes a situation of impasse. In shorter Oxford dictionary, third edition at page 255, the word "can" is defined as "to be able; to have power or capacity". The word "cannot", therefore, would mean "not to be able" or "not to have the power or capacity". In Stroud''s judicial dictionary, fifth edition, the word "cannot" is defined to include a legal inability as well as physical impossibility. Hence situations which can be remedied or do not create any impasse, or do not disable or interfere with the governance of the State according to the Constitution, would not merit the issuance of the Proclamation under the article.

It has also to be remembered that situation contemplated under the Article is one where the government of the State cannot be carried on "in accordance with the provisions of the Constitution". The expression indeed envisage varied situations. Article 365 which is in PartXIX entitled "Miscellaneous", has contemplated one such situation. It states that :

"Where any State has failed to comply with, or to give effect to, any directions given in the exercise of the executive power of the Union under any of the provisions of this Constitution, it shall be lawful for the President to hold that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution."

The failure to comply with or to give effect to the directions given by the Union under any of the provisions of the Constitution, is of course, not the only situation contemplated by the expression "government of the State cannot be carried on in accordance with the provisions of this Constitution". Article 365 is more in the nature of a deeming provision. However, the situations other than those mentioned in Article 365 must be such where the governance of the State is not possible to be carried on in accordance with the provisions of the Constitution. In this connection, we may refer to what Dr. Ambedkar had to say on the subject in the Constituent Assembly :

"Now I come to the remarks made by my friend Pandit Kunzru. The first point, if I remember correctly, which was raised by him was that the power to take over the administration when the constitutional machinery fails is a new thing, which is not to be found in any constitution. I beg to differ from him and I would like to draw his attention to the article contained in the American Constitution, where the duty of the United States is definitely expressed to be to maintain the Republication form of the Constitution. When we say that the Constitution must be maintained in accordance with the provisions contained in this Constitution we practically mean what the American Constitution means, namely that the form of the constitution prescribed in this Constitution must be maintained. Therefore, so far as that point is concerned we do not think that the Drafting Committee has made any departure from an established principle." C.A.D. Vol. IX, p. 17576.

As pointed out earlier, more or less similar expression occurs in Article 58(2)(b) of the Pakistan Constitution. The expression there is that the "Government of the Federation cannot be carried on in accordance with provisions of the Constitution and an appeal to the electorate is necessary," Commenting upon the said expression, Shafiur Rahaman, J. in Ahmad Tariq Rahim v. Federation of Pakistan, PLD 1972 SC 646 at 664 observed, "It is an extreme power to be exercised where there is actual or imminent breakdown of the constitutional machinery, as distinguished from a failure to observe a particular provision of the Constitution. There may be occasions for the exercise of this power where there takes place extensive, continued and pervasive failure to observe not one but numerous, provisions of the Constitution, creating the impression that the country is governed not so much by the Constitution but by the methods extraconstitutional."

Sidhwa, J. in the same case observed that "to hold that because a particular provision of the Constitution was not complied with, the National Assembly could be dissolved under Article 58(2)(b) of the Constitution would amount to an abuse of power. Unless such a violation independently was so grave that a Court could come to no other conclusion but that it alone directly led to the breakdown of the functional working of the Government, it would not constitute a valid ground.

The expression and its implication have also been subject to elaborate discussion in the Report of the Sarkaria Commission on CentreState Relations. It will be advantageous to refer to the relevant part of the said discussion, which is quite illuminating :

"6.3.23. In Article 356, the expression "the government of the State cannot be carried on in accordance with the provisions of the Constitution", is couched in wide terms. It is, therefore, necessary to understand its true import and ambit. In the daytoday administration of the State, its various functionaries in the discharge of their multifarious responsibilities take decisions or action which may not, in some particular or the other, be strictly in accord with all the provisions of the Constitution. Should every such breach or infraction of a constitutional provision, irrespective of its significance, extent and effect, be taken to constitute a "failure of the Constitutional machinery" within the contemplation of Article 356. In our opinion, the answer to the question must be in the negative. We have already noted that by virtue of Article 355 it is the duty of the Union to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution. Article 356, on the other hand, provides the remedy when there has been an actual breakdown of the constitutional machinery of the State. Any abuse or misuse of this drastic power damages the fabric of the Constitution, whereas the object of this Article is to enable the Union to take remedial action consequent upon breakdown of the constitutional machinery, so that governance of the State in accordance with the provisions of the Constitution, is restored. A wide literal construction of Article 356(1), will reduce the constitutional distribution of the powers between the Union and the States to a licence dependent on the pleasure of the Union Executive. Further it will enable the Union Executive to cut at the root of the democratic Parliamentary form of government in the State. It must, therefore, be rejected in favour of a construction which will preserve that form of government. Hence, the exercise of the power under Article 356 must be limited to rectifying a failure of the constitutional machinery in the State. The marginal heading of Article 356 also points to the same construction.

6.3.24. Another point for consideration is, whether `external aggression'' or `internal disturbance'' is to be read as an indispensable element of the situation of failure of the constitutional machinery in a State, the existence of which is a prerequisite for the exercise of the power under Article 356. We are clear in our mind that the answer to this question should be in the negative. On the one hand `external aggression'' or `internal disturbance'' may not necessarily create a situation where government of the State cannot be carried on in accordance with the Constitution. On the other hand, a failure of the constitutional machinery in the State may occur, without there being a situation of `external aggression'' or `internal disturbance''.

xxx xx xxx xx xx

6.4.01 A failure of constitutional machinery may occur in a number of ways factors which contribute to such a situation are diverse and imponderable. It is, therefore, difficult to give an exhaustive catalogue of all situations which would fall within the sweep of the phrase, "the government of the State cannot be carried on in accordance with the provisions of this Constitution". Even so, some instances of what does and what does not constitute a constitutional failure within the contemplation of this Article, may be grouped and discussed under the following heads :

(a) Political crisis.

(b) Internal subversion.

(c) Physical breakdown.

(d) Noncompliance with constitutional directions of the Union Executive.

It is not claimed that this categorisation is comprehensive or perfect. There can be no watertight compartmentalisation, as many situations of constitutional failure will have elements of more than one type. Nonetheless, it will help determine whether or not, in a given situation it will be proper to invoke this lastresort power under Article 356."

The Report then goes on to discuss the various occasions on which the political crisis, internal subversion, physical breakdown and non compliance with constitutional directions of the Union Executive may or can be said to occur. It is not necessary here to refer to the said elaborate discussion. Suffice it to say that we are in broad agreement with the above interpretation given in the Report, of the expression "the government of the State cannot be carried on in accordance with the provisions of this Constitution", and are of the view that except in such and similar other circumstances, the provisions of Article 356 cannot be pressed into service."

We may summarise our conclusions now :

(1) Article 356 of the Constitution confers a power upon the President to be exercised only where he is satisfied that a situation has arisen where the government of a State cannot be carried on in accordance with the provisions of the Constitution. Under our Constitution, the power is really that of the Union Council of Ministers with the Prime Minister at its head. The satisfaction contemplated by the Article is subjective in nature.

(2) The power conferred by Art. 356 upon the President is a conditioned power. It is not an absolute power. The existence of material which may comprise of or include the report(s) of the Governor is a pre condition. The satisfaction must be formed on relevant material. The recommendations of the Sarkaria Commission with respect to the exercise of power under Art. 356 do merit serious consideration at the hands of all concerned."

xx xxx xxx xx

The learned counsel has drawn my attention to another judgment of the apex Court rendered in re: M.A. Rashid and others v. State of Kerala, 1974 S.C. 2249. A pointed reference has been made to paras 7, 8 and 9, which read as under :

"7. Where powers are conferred on public authorities to exercise the same when "they are satisfied" or when "it appears to them", or when "in their opinion" a certain state of affairs exists; or when powers enable public authorities to take "such action as they think fit" in relation to a subject matter, the Courts will not readily defer to the conclusiveness of an executive authority''s opinion as to the existence of a matter of law or fact upon which the validity of the exercise of the power is predicated.

Where reasonable conduct is expected the criterion of reasonableness is not subjctive, but objective. Lord Atkin in Liversidge v. Anderson, 1942 A.C. 206at pp. 228229 said "If there are reasonable grounds the judge has no further duty of deciding whether he would have formed the same belief any more than, if there is reasonable evidence to go to a jury, the judge is concerned with whether he would have come to the same verdict." The onus of establishing unreasonableness however, rests upon the person challenging the validity of the acts."

"9. Administrative decisions in exercise of powers even if conferred in subjective terms are to be made in good faith or relevant consideration. The courts inquire whether a reasonable man could have come to the decision in question without misdirecting himself on the law or the facts in a material respect. The standard of reasonableness to which the administrative body is required to conform may range from the courts'' own opinion of what is reasonable to the criterion of what a reasonable body might have decided. The courts will find out whether conditions precedent to the formation of the opinion have a factual basis."

It is argued that when the powers are conferred upon the public authority, for exercising the same, an opinion has to be formed taking into consideration the existence of the facts and the law upon the validity of "the exercise of the powers is predicated. The expression, usage of the power" to be ultimately termed as unbridled power, has been diluted by way of expecting the authority to form an opinion and the action so warranted is allowed to be taken. It is further argued that if the power as envisaged under Section 3 of the Act was to be plainly provided within the domain of the Executive and the mannerism of such power was left to the discretion of the Executive, the word "opinion" would not have been used. Thus, the very usage of the word "opinion" dilutes the power and subjects it to a check by virtue of which the exercise of such power can be put to litmus test. In the case at hand, no such opinion has been formed by the Council of Ministers, the purpose and object of conferring this power upon the Council of Ministers is, that the individualistic approach is curtailed and the decision to be taken is subjected to the rigour of opinions and ultimately the majority view would prevail. No such projection has been given in the case at hand as no material is stated to have been produced before the Council of Ministers. Thus, they had been denied the opportunity and the right for forming a "subjective opinion" while coming to a conclusion of appointment of Commission of Inquiry. Thus, the exercise of power of the Government by way of issuance of impugned notification Annexure P5, is not sustainable under law, and resultantly, the impugned notification deserves to be quashed.

The respondents have not been able to show or bring on record as to what material had been placed before the Council of Ministers for the purpose of forming an opinion. However, to the contrary the plea has been taken that all the ministers had gathered this information from the public while going to the streets and meeting people. No report has been referred to for eliciting as to whether any fact finding enquiry was ever made to examine the import of the Prohibition Policy and also the effect of imposition of the Prohibition Policy and the reasons as to why the Prohibition Policy had been withdrawn by the previous Council of Ministers. It is the accepted dicta that from hearsay information and the information gathered from the streets may enable one to form an impression but certainly not an opinion. The responsible opinions as envisaged under the statutes are required and expected to be formed on the basis of the cogent material produced before the prescribed authority. The respondents have miserably failed to establish the factum of having produced material before the Council of Ministers for coming to such conclusion. It is also the admitted fact that the item taken up and decided was not contained in the agenda circulated amongst the Council of Ministers. It is not discernible as to at whose instance the item and been initiated with the permission of the chairman and what material had been placed by the said initiator before the Council of Ministers. In this regard, neither any executive officer, such as Secretary to Government of Haryana etc. had been asked to lay any kind of report before the Council of Ministers. Even the alleged discussion allegedly having taken place amongst the Council of Ministers before taking such decision, has not been informed by way of affidavit or otherwise. Thus, it shows that the decision for appointing Commission of Inquiry has been taken without forming any opinion as the same could not be formed in the absence of cogent material placed before it. The decision is based on conjectures and surmises and perhaps with political vendetta in the mind of the perpetrators. Thus, the approach and the action is not sustainable and the resultant effect thereof i.e. issuance of the impugned notification vide which the Commission of Inquiry has been appointed, deserves to be quashed.

"(2) No decision had been taken by the Council of Ministers that the matter discussed and taken up as an agenda with the permission of the chair, is a definite matter of public importance. In the absence of such decision, the Government of Haryana is not competent to take decision/issue notification for appointing a Commission of Inquiry;

The other pivotal question is absence of decision of Council of Ministers in respect of matter to be "a definite matter of public importance. The argument of the learned counsel for the petitioner is that if an opinion as envisaged under Section 3 of the Act is formed correctly and consciously and upon the basis of the material placed before the Council of Ministers, the second requirement which needs to be fulfilled is Whether inquisitorial matter is of public importance ? This decision also needs to be arrived at by the Council of Ministers. If a matter relates to the acts of omission and commission of an individual, such person may be subjected to rigours of the common laws applicable; civil or criminal. It is only under a given circumstance that the acts of omission and commission cannot be attributed to an individual or a set of persons but their collective act is such that it may have caused loss pecuniary or otherwise and the same required to be determined in the recommendatory form and that the matter would affect or has affected the public at large. For such act, the persons at the helms of affairs have to be subjected to some kind of responsibility and liability. It is too dangerous to opine that every act of a person couched with public authority deserves to be investigated and essentially such person would be held liable. Thus, after an opinion has been formed, the Council of Ministers must come to a conclusion that it is a definite matter of public importance. Upon this decision the Commission of Inquiry so appointed shall be able to invite public at large to disclose the facts which may culminate into appropriate recommendation. It is an onerous duty which has to be conferred upon the Commission of Inquiry for making such kind of recommendations. The exercise of power has been tainted with the rigour that the matter is a definite matter of public importance so that an individual may not be permitted to act against an individual by using or abusing the power conferred under Section 3 of the Act. If the appointment of such Commission is indicative of ballistic approach adopted for the purpose of demolishing or ridiculing a person individually and politically, appointment of such Commission would not be permissible. Thus, the scope and ambit of the Commission gets defined automatically once the decision is taken by the Council of Ministers that there is a definite matter of public importance while needs to be investigated in pursuant to the opinion formed by the Council of Ministers. Thus, forming of opinion and the matter being of definite public importance are complimentary to each other meaning thereby that the Commission so appointed devoid of one or the other would not be sustainable.

It is further argued that the respondents have not been able to spell out one word that the Council of Ministers did take a decision that the matter which requires to be investigated is a matter of public importance. In the absence of such decision, the impugned notification would not be sustainable and the same deserves to be quashed. Even if it is admitted, for argument sake, that the Prohibition Policy was imposed, being one of the manifesto of the political party, ultimately did not prove fruitful, and that the State revenue intake fell drastically. The petitioner being the Chief Minister at the relevant time imposed the Prohibition Policy after the collective decision had been taken by the Council of Ministers and that the policy remained in force for almost two years but subsequently a report was called, for examining the effect of Prohibition Policy. The recommendations were that the policy has not proved to be fruitful as the State Exchequer has suffered injury which is self inflicted. It is on the basis of this report the then Council of Ministers retracted and withdrew the Prohibition Policy in the interest of the State. It is argued that earlier also when the Prohibition Policy was imposed, it was considered in the interest of the society that people should not be allowed to drink ruthlessly and destroy themselves and their families, but, the effect was different. People, who had already become addicts were not able to live without it and by adopting the rule of beg, borrow and steal, the liquor was imported and they drank. It is under this situation the State disclosed its helplessness i.e. were not able to stop people from drinking and yet lost on the revenue intake. Resultantly, the Prohibition Policy was withdrawn. It is further argued that so many decisions are taken, policies are promulgated by the State, but, all do not prove fruitful and successful. This was also one of those policies which did not prove fruitful or successful. This would not mean that the perpetrators of this policy should be indicted with an objective to settle a personal score or political vendetta. The decision which has been taken by the Government, certainly does not spell out that such investigation is a matter of public importance, rather the objective is to settle personal score as is evident from the fact that Mr. Om Parkash Chautala, always had a grudge against the petitioner. This fact has been fairly and squarely admitted by him while filing an affidavit in a criminal case, reference to which has already been made and the relevant para as reproduced in the petition is reiterated as under :

"Aggrieved by the order passed by the Special Judge, Sirsa, Shri Om Parkash Chautala has filed the present petition in this Court and it has been averred by him that he started his political career under the guidance and in accordance with the policy and programme of Ch. Devi Lal and in this process has earned the wrath, illwill and animosity of the present Chief Minister of the State Ch. Bansi Lal and also has become the target of his younger brother Shri Partap Singh. Said complainant Partap Singh was granted a ticket in the year 1967 Assembly elections on the asking of Ch. Devi Lal from the Ellenabad Constituency, from where he was elected but soon it transpired that Sh. Partap Singh out of sheer greed of power started political activities against the interests of Ch. Devi Lal. The petitioner on all occasions stood by his father and also underwent detention under MISA in 197576 during the Emergency period. The present Chief Minister of the State Ch. Bansi Lal was at the helm of the affairs of the State politics and was also having a great say in the national level and was considered to be one of the architects of imposition of Emergency. The petitioner has always been a law abiding citizen but Ch. Bansi Lal wanted to humiliate him all the times as he considered the petitioner his potential political rival. Respondent No. 2. Shri Partap Singh, though younger brother of the petitioner, but on account of his prejudicial activities against the interests of the party led by Ch. Devi Lal, always wanted to create a place for himself amongst the adversaries of Ch. Devi Lal. In the midterm polls of 1968, respondent No. 2 Ch. Partap Singh was not selected for the grant of a ticket from Ellenabad Constituency by the party led by Ch. Devi Lal and the petitioner was given the ticket in his place from the same constituency. The petitioner lost the election because of the anti party activity of respondent No. 2, who wanted to maintain his supremacy. The relations between the petitioner and respondent No. 2 became strained in this manner. Thereafter respondent No. 2 started harbouring deeprooted jealousy, respondent and animosity against the petitioner as respondent No. 2 considered the petitioner as his foremost fore and also held him responsible for the ouster of respondent No. 2 from the State and national politics. The relations between the petitioner and respondent No. 2 deteriorated to such an extent that respondent No. 2 made his son Abhey Singh. Thus, the relationship further deteriorated in 1996 Assembly elections Ravi again stood as a candidate against the petitioner from the Rori Assembly Constituency, but he withdrew his candidature and joined hands with the opponents to defeat him i.e., the petitioner. Respondent No. 2 is not living either with the petitioner or the member of the family nor even with his father Ch. Devi Lal. On several occasions Ch. Devi Lal has declared the petitioner as his political heir and reprimanded Sh. Partap Singh on number of occasions. Respondent No. 2, in order to create difficulties and hurdles in the way of the petitioner, colluded with Ch. Bhajan Lal and filed a complaint against the then leader of the opposition of the party led by Ch. Devi Lal in the State, namely Ch. Sampat Singh, who worked as Home Minister in the Cabinet when Ch. Devi Lal was the Chief Minister. Respondent No. 2 expected that the petitioner and Ch. Devi Lal would try to dissuade from levelling such false allegations against the senior member of the party like Shri Sampat Singh, but nobody even talked to Respondent No. 2. Respondent No. 2 has now colluded with Ch. Bansi Lal, present Chief Minister of the State, who is a family foe of Ch. Devi Lal and the petitioner. Respondent No. 2 has levelled false allegations against the petitioner relating to the period 1977 to 1979, when the petitioner was not even an M.L.A., and Ch. Devi Lal was the Chief Minister at that time. From 1987 to 1991 the State was controlled by different Chief Ministers, namely, Ch. Devi Lal, Sh. Banarsi Dass Gupta, and Master Hukam Singh, and the petitioner had nothing to do in the administrative matters. When Ch. Devi Lal became the Deputy Prime Minister of India, the petitioner became the Chief Minister of the State of Haryana. None of the allegations contained in the complaint relate

to the period when the petitioner was an M.L.A or when he was the Chief Minister; so much so the petitioner also remained a Member of Parliament for short period from 14th August, 1987 to March, 1989. The petitioner has further stated that he is a respectable man. His one son Ajay Singh is an M.L.A. in Rajasthan from Nohar Constituency and the other son Abhey Singh is ViceChairman of the Sirsa Zila Parishad, and in order to mar his social and political career, Respondent No. 2 has further alleged in the petition that he owns and possesses only the properties which had come to him from the family and no other property is in the name of the petitioner. Neither the petitioner is a Benamidar nor he has any concern with the properties which are mentioned in the complaint filed by Respondent No. 2. The petitioner acquired properties which were in his name prior to 1977. According to the petitioner, the Police has already found during the course of investigation that none of the allegations made by Respondent No. 2 has been substantiated in any manner and no evidence has been collected by the Police to connect the petitioner with any of the allegations made in the complaint; so much so, the allegation of Respondent No. 2 regarding owning and possession of the land in village Shergarh has been found to be false by the Police. Till today the Police has not even attempted or tried to work out any known sources of income of the petitioner so as to substantiate the charge of amassing the wealth disproportionate of the known sources of income of the petitioner.

The petitioner has also commented upon the order of the learned Special Judge, Sirsa, that the observations made by the learned Special Judge in his order, which have been impugned in the present petition are against the findings of the Police. Finally it has been pleaded by the petitioner that arrest cannot be made on the basis of suspicious and vague allegations. Irreparable harm and injury would be caused to him in case he is arrested. The only purpose of the threatened arrest on the part of the Police is to satisfy the personal vendetta of Respondent No. 2 and the Chief Minister of the State. Some allegations have also been levelled against Ch. Bansi Lal, the present Chief Minister of Haryana that at one point of time he stated that in case he dies, the responsibility should be fixed upon Ch. Devi Lal and the petitioner.

The import of the Prohibition Policy already stood distilled, as is evident from the fact that after the imposition of the said policy the same was challenged before this Court and that the said petition was dismissed by a speaking order. Being dissatisfied, the petitioner in that case filed Special Leave Petition before the Apex Court and that the same was also dismissed. There is no difference of opinion that the legality and credibility of the Prohibition Policy stood approved and confirmed by a judicial pronouncement. However, the damage caused on the fiscal front is a separate matter. The object was to provide better and clean life to the subjects of the State by asking them to stop drinking, but, the prohibition without the force of law did not bring expected results. Thus, the legislative measures had to be adopted. It was considered that fiscal loss would not be that damaging as the damage is being caused to the health of the State subject. The Prohibition Policy was a laudable act appreciated by one and all. However, the acceptance was a million dollar question the addicts and the bootleggers were able to break the barriers and were able to pollute the somewhat clean environment. Resultant effect became far too obvious, which ultimately, culminated into withdrawal of Prohibition Policy. It was considered, if despite the Prohibition Policy the State subject still can import the liquor into the State then why the State should lose on the fiscal front.

It is argued that the policy of the State was withdrawn for the obvious reasons but the policy was accepted legalistically, logistically and environmentally and for all other purposes. That being so, the inquisitional or investigative approach was not required to be adopted now and the matter could certainly not be termed as a matter of definite public importance. The Council of Ministers were aware of this fact and it is because of this, no pointed positive decision was taken by the Council of Ministers in this regard, the absence of which would not permit the sustainability of the impugned notification. Thus, the impugned notification deserves to be quashed on this count as well.

(3) the power conferred upon the Government under section 3 of the Commission of Inquiry Act, stands subjected to inbuilt restrictions as contained in the aforesaid provisions i.e. an opinion must be formed based upon the material placed before the Council of Ministers and the matter should be adjudged to be of definite public importance. If the said ingredients are not fulfilled, the notification issued for appointment of Commission of Inquiry, would be null and void;

Learned counsel for the petitioner has argued that the power which has been conferred upon the Government for appointment of a Commission of Inquiry into a matter, has been subjected to the inbuilt requisites provided in Section 3 of the Act. The Government would not be well within its rights in issuing the notification under the aforesaid provision if the ingredients provided therein have not been complied with or fulfilled. In the case at hand, the Government has not examined as to whether the said ingredients had been duly fulfilled or not. The power which has been conferred upon the Government is of far reaching consequences and, therefore, the Legislature consciously provided the inbuilt constraints and restraints which are the caution words for the Government before such power is exercised. Perhaps, no such exercise has been carried out by the Government before the issuance of the impugned notification. The perusal of the reply filed by the Government and so also the reply filed by the Chief Minister does not spell out the fulfilment of the ingredients set out in the aforesaid provision. The government has not categorically averred that such aspect had been examined and the government was satisfied that the ingredients had been fulfilled and, therefore, the issuance of a notification for appointment of a Commission is justified. It is the settled law that if the constraints and restraints inbuilt in the provision are not fulfilled, the act on the part of the prescribed authority would not be justifiable but would be justiciable. Thus, the impugned notification suffers from inherent defect that the inbuilt constraints and restraints having not been fulfilled, the notification is not sustainable under law and, therefore, deserves to be quashed.

(4) the terms of reference/scope of reference to the Commission of Inquiry already stood concluded by a judgment of this Court rendered in re: M/s Rattan Singh Kishan Chand v. State of Haryana, CWP No. 8597 of 1996, decided on December 17, 1996, whereby the scope and objects of "Prohibition Policy" have been upheld and that the said judgment has been further affirmed by the apex Court as the Special Leave to appeal filed against the said judgment has been dismissed. Thus, it cannot and would not fall within the domain and ambit of Commission of Inquiry to look into the credibility and also the effect thereof. Such as an act on the part of the Government would mean conferring appellate jurisdiction over and above this Court and so also the apex court, which is not sustainable under law;

Learned counsel for the petitioner has argued that the scope of the terms of the reference to the Commission are not at all sustainable under law. It is to the knowledge of the Government that the Prohibition Policy enforced by the then Government had been challenged before this Court and that the legality and maintainability of the same was upheld and which further stood affirmed by the apex Court. No infirmity whatsoever has been found in the Prohibition Policy. Thus, it cannot be said that the policy was and is not sustainable. The effects i.e. negative or positive at the time of enforcement of the policy cannot be subjected to the rigour of fact finding enquiry by way of appointment of Commission. Such appointment of Commission would mean that another authority is being asked to sit in judgment over the opinion of the High Court which further stands affirmed by the apex Court. Such act on the part of the Government is not sustainable under law. It is the settled law that another authority cannot be created when a forum created under the constitution has examined the aspect of the act of the government and which further stands affirmed by the higher authority created under the constitution. This act on the part of the Government would be violative of the inbuilt rights conferred under the Constitution. The government was aware of this legal position but dehors of this proceeded to appoint the Commission with one objective i.e., to cause embarrassment, humiliation and insult to then Chief Minister and the Cabinet Ministers who belonged to the other party and not the ruling party. The purpose and object is to exploit the power under Section 3 of the Act by appointing the Commission and by conferring the inquisitorial power with which the Commission would go to the public and examine each and every person so that the Chief Minister and the Cabinet Ministers are ridiculed in public and are not in a position to win the legislative election which may be held in future. It is the settled law that if the power is used for such purposes i.e. to malign an individual/individuals, the creation of an authority under the aforesaid provision would not be sustainable. Especially, when the objective to be attained is personal to the one who is at the helms of affairs of the State. The cumulative reading of the facts and the persual of the record would show that the power has been exercised with mala fide intentions, when the credibility of the Prohibition Policy already stand tested. Even for argument sake, if it is accepted that the policy had failed, that would not mean that a commission is required to go into these aspects and especially when the then Government itself ordered a fact finding inquiry and upon the basis of the report elicited, the Prohibition Policy was withdrawn after about two years. Such mala fide approach and consequently constituting the Commission would not be sustainable under law, if, any such act is committed by the government, the same would deserve to be quashed. Lifting the veil from the circumstances which culminated into issuance of the impugned notification would show the mala fide approach of the present Government, which is evident from the fact that neither any material was placed before the Council of Ministers nor any opinion was formed by the government, neither the matter was defined as a definite matter of public importance. Thus, the act on the part of the Government is not at all sustainable, thus, the appointment of the Commission deserves to be quashed.

(5) the appointment of Commission of Inquiry having been made at the behest of Mr. Om Parkash Chautala, Chief Minister, Haryana, who had always nurtured animus towards the petitioner which stands corroborated from the facts narrated in the petition, thus suffers from the rigour of mala fides, resultantly effecting the political image of the petitioner for all times to come.

Learned counsel for the petitioner has argued that both the political leaders Mr. Om Parkash Chautala the Chief Minister and Mr. Bansi Lal, the petitioner the former Chief Minister, are political rivals and have been heading their respective parties at the relevant time and have remained the Chief Minister of State of Haryana from time to time. Mr. Om Parkash Chautala, always carried a grudge against the petitioner, as and when he was defeated in the political arena, which includes their respective families as well. The sons of both the political stalwarts are also in the fray of politics and have been contesting elections from time to time. The animus is self explanatory because whenever Mr. Om Parkash Chautala, became the Chief Minister, he got the criminal cases registered against the petitioner and his family and that on one given point of time, the petitioner had been handcuffed and was made to march in the public streets. The animosity with the petitioner has been fairly admitted by Mr. Om Parkash Chautala as he has stated categorically in a petition filed before this court, the excert of which has already been reproduced in the earlier part of this judgment.

It has been argued that whenever the petitioner became the Chief Minister, he did not act in such manner as no false criminal cases were got registered against Chautala family nor he was arrested nor ridiculed in or before public. The petitioner maintained his political rivalry but did not configurate into personal animosity. Whereas, the explosive acts committed by Mr. Om Parkash Chautala, have shown that the nurtured a personal grudge and that his family also always made an effort to settle the scores. Since the mind has been reflected by the present Chief Minister so openly on various occasions, the appointment of the Commission reflects one thing that be wants to settle score with the petitioner and his family in every way by invocation of every kind of method. An effort has also been made to project that the Prohibition Policy was nothing but brainchild of the petitioner alone, which fact is absolutely incorrect. The petitioner was heading the coalition government and it was the collective decision taken by the then Cabinet Ministers but the said decision was recalled on account of the report submitted by the Government functionaries. In principle, the policy was accepted by one and all, but, on implementation it was found that the policy may not be beneficial for the State. There are so many decisions which are taken by a government but all decisions are not found to be successful, some are modified, some are withdrawn and the government also reviews its decisions from time to time. Has anybody questioned such kind of decisions in the manner in which the Prohibition Policy is being questioned by the present government ? The reasons are far too obvious i.e. the personal rivalry of the family. It is the settled law, that if, any act is committed by the government, which is tainted with animus and settlement of scores between the two individuals or the families, such act cannot be called the act of the government and that the same shall amount to abuse of the power conferred upon the government, which should not be allowed to be used to the detriment of the sovereign. The mala fides are far too obvious, and, therefore, the act on the part of the present Chief Minister by way of issuance of the impugned notification in appointing a Commission, directed towards the petitioner, would not be sustainable and the same deserves to be quashed.

On the other hand, Mr. Surya Kant, Senior Advocate General, Haryana, has controverted the pleas of the petitioner. The counter arguments have been addressed :

(1) There is no requirement under law that there has to be some formal material placed before the Council of Ministers for taking decision while exercising powers under Section 3 of the Act;

(2) the projection of personal knowledge by the Council of Ministers, which has been formed on the basis of material consumed or assumed in official capacity, should be accepted as the material before the Council of Ministers. Even if, the said material has not been presented in a concise documented form before the Council of Ministers;

(3) the opinion required to be formed by the Council of Ministers can be based upon the material personally projected by the Council of Ministers. It is not necessary that the opinion formed by the Council of Ministers should be written down and that it should be readable and decipherable by anyone, as no one is required to sit in judgment over the opinion formed by the Council of Ministers and that the opinion is reflected once the decision is taken for appointment of a Commission under the requisite provision;

(4) to describe the matter to be of definite public importance, again no decision in writing is required to be taken in this regard. The investigative decision of Council of Ministers for seeking probe into the matter by way of appointment of Commission of Inquiry would itself project the matter to be of public importance. Council of Ministers are not required to exercise their power under Section 3 of the Act in respect of a matter which is not of a definite public importance. Any and every matter is not required to be placed before the Council of Ministers for exercising powers under Section 3 of the Act. Once the matter is taken up for discussion and decision, it is assumed and accepted that the same is of definite public importance;

(5) Since the petitioner has admitted the failure of the policy of the then Government i.e. the Prohibition Policy and that the loss caused to the State Exchequer has also, therefore, been accepted by the then Government. Thus, it became incumbent upon the part of the present government to hold a fact finding inquiry and to see as to who were the beneficiaries of the said policy especially when within a span of two years the same government formed an opinion that the Prohibition Policy was required to be withdrawn and which was finally withdrawn. The laudable object to be achieved by way of Prohibition Policy is not under challenge and is not required to be scrutinised by the Commission of Inquiry. The inquiry is only to the effect as to how and in what manner the persons closely connected and in the then government earned benefits by way of allowing illegal acts of omission and commission under the umbrella opened by the then government; and

(6) The petitioner having subjected himself to the jurisdiction of the Commission way back in 20002001, it does not lie in the mouth of the petitioner to question the legality of the appointment of the Commission at this stage. The petitioner made unsurmountable efforts for seeking the interim order against the working and functioning of the Commission which has not been granted and that against the said order the petitioner filed Special Leave Petition before the apex Court but no indulgence in this regard has been given. The reasons are known to the petitioner only, as to why he is not appearing after having subjected himself to the jurisdiction of the Commission. The questionnaire issued by the Commission has not been answered by the petitioner for the reasons best known to him.

It shall be appropriate to notice the arguments of learned Advocate General in pursuant to the headings under which the arguments have been segregated.

(1) There is no requirement under law that there has to be some formal material placed before the Council of Ministers for taking decision while exercising powers under Section 3 of the Act;

Learned Advocate General has argued that forming an opinion by the Government is based on widest possible information digested and consumed by the requisite constituents; an opinion as envisaged under Section 3 of the Act is not necessarily required to be formed in a mathematical manner but being the political representatives of the sovereign, the information, knowledge and the facts noticed by them in their political arena is also sufficient to educate them to form such opinion. It must be kept in mind that the political personalities have far more wider opportunities to meet the sovereign and gather their view points than the ministerial personnel. The information acquired at grassroots level cannot be codified in a book form but is protectable any time and every time by the representatives of the society. Whenever the Council of Ministers meet for exercising their power under a statute, their experiences, their knowledge derived from all walks of life is vomited out at the relevant point of time and that this entire information and the discussion need not and is not required to be projected in a codified form. It is always appropriate to codify such decisions in the form of recording the minutes of the meeting. In the case at hand, the minutes were duly recorded after the item had been discussed by the Council of Ministers. We cannot lose sight of one fact that the meeting of Council of Ministers was presided over by the Chief Minister as is required necessarily. If there was a divergent view, the view of the majority was required to be noted separately and the negative view was required to be noted accordingly. Since there was no divergence of opinion, the consensus view was recorded by way of recording the minutes of the meeting. Thus, the formation of opinion is quite obvious and is readable accordingly. Reference has been made to the minutes of the meeting of the Council of Ministers recorded on 29.11.1999. It has been further argued that the purpose and object of setting up of the Commission of Inquiry is to promote measures for maintaining purity and integrity of the administration in the political arena of the State and not the character assassination of an individual. Thus, formation of opinion would be dependent upon the widest possible facts and effects which need to be digested over the time for which an individual remains at the helms of affairs of the State. It is not an effort to solve binomial theorem. Thus, it cannot be read into the provisions that some mathematical material must be produced before the Council of Ministers while forming an opinion, as inculcated under the aforesaid provision. In the case at hand, the matter relating to promulgation of Prohibition Policy and subsequently after a period of two years the said policy having been withdrawn by the same government, the investigation is required to the extent as to who has been the gainer and loser on promulgation and withdrawal of the said policy. If the policy had been promulgated by the persons then at the helms of affairs to enrich themselves or their associates for promoting the illegal entry of the liquor, investigation is definitely required. Thereafter, the circumstances, which warranted the withdrawal of the said policy, again some extraneous considerations were involved and that the loss was also caused to the State Exchequer. Such investigation and recommendation asked for, fall within the domain of the government and that the opinion was formed and the decision was accordingly taken. In support of his argument, he has placed reliance upon two judgments of the apex Court rendered inn re: P.V. Jagannath Rao and others v. State of Orissa and others, AIR 1969 Supreme Court 215. The purpose and object of appointing a Commission of Inquiry would be that the facts may be found out which alone will facilitate rectification and prevention of such lapses being committed again. It would also be helpful in securing the ends of justice and establishing a moral public order in future. More or less, the power which has been conferred under Section 3 of the Act, has to be invoked as a corrective measure and not as a punitive measure. It is the purity and integrity of political administration in the State which should be paramount in the minds of all. In the case at hand, the power has been exercised only, when the Council of Ministers came to the opinion that the side effects of promulgation of Prohibition Policy need to be examined and so also those situations, which forced the then government to withdraw the said policy.

Another judgment of the apex Court has been referred which has been rendered in re: Krishna Ballabh Sahay and others v. Commission of Inquiry and others, AIR 1969 Supreme Court 258. It has been observed by the Apex Court that, "when a ministry goes out of office, its successor may consider any glaring charges and may if justified order an inquiry. Otherwise, each Ministry will become a law unto itself and the corrupt conduct of its ministers will remain beyond scrutiny. This power certainly falls within the domain of the "check" sought to be created against the personalities occupying the constitutional offices, or the highest offices in the State."

It has been further argued that appointment of a Commission of Inquiry cannot be termed as campaigning of vilification for political game by a party or can always be said to be based on personal animus against those who were at the helms of affairs of the government. The element of animus and the investigation into personal conduct visavis the affairs of the State have to be kept separate and no doubt at a given point of time investigation into the conduct may provide a shelter to the person investigated against. The alleged allegation that the said investigation is out of animus has to be examined by the Commission, thus, it is too early to form such opinion, when a decision is taken by the Government for appointing Commission of Inquiry.

He has further argued that formation of opinion by the Government is subjective and is, therefore, not justiciable unless it is corroborated that the same was arrived at mala fidely. The appointment of Commission is only for the purpose of eliciting the facts and that the Commission is not entitled to render any decision thereon. The recommendation is not binding and the same can be ignored. It is further argued that the Commission does not perform or exercise judicial function, however, for a limited purpose, the powers of the Court have been conferred upon the Commission. In this context an opinion formed by the Government is subjective and is, therefore, not justiciable. It is some kind of in house procedure adopted, so that the government which has exercised the powers while being in saddle, does not act in a manner that it conducts the affairs of the State by being above the law. It is this aspect which can be gone into by the next incumbent or the then cabinet as well as an inquiry needs to be conducted against the acts of omissions and commissions. Reference has been made to a Division Bench judgment of Orissa High Court rendered in re: Dr. Harekrushna Mahtab v. The Chief Minister of Orissa and others, AIR 1971 Orissa 175.

3536. It has been further argued that the opinion has to be formed only for the purpose of appointment of Commission and when the overwhelming facts are so spelt out and rather corroborative from the knowledge of the Council of Ministers fed to them from any source, would be the basis for the purpose of forming the said opinion. In the case at hand, the collective opinion was formed by the Council of Ministers and consequently a decision was taken for appointing the Commission. The fact of appointing the Commission would itself be self explanatory that the attendant circumstances, the factual situations have been considered and examined by the Council of Ministers. It would never ever be necessary to go behind the decisions taken by the Council of Ministers. Thus, the plea of the petitioner is not at all sustainable and that the notification issued by the Government is sustainable under law because it is based upon the collective opinion of the Council of Ministers.

(2) the projection of personal knowledge by the Council of Ministers, which has been formed on the basis of material consumed or assumed in official capacity, should be accepted as the material before the Council of Ministers. Even if, the said material has not been presented in a concise documented form before the Council of Ministers;

(3) the opinion required to be formed by the Council of Ministers can be based upon the material personally projected by the Council of Ministers. It is not necessary that the opinion formed by the Council of Ministers should be written down and that it should be readable and decipherable by anyone, as no one is required to sit in judgment over the opinion formed by the Council of Ministers and that the opinion is reflected once the decision is taken for appointment of a Commission under the requisite provision;

(4) to describe the matter to be of definite public importance, again no decision in writing is required to be taken in this regard. The investigative decision of Council of Ministers for seeking probe into the matter by way of appointment of Commission of Inquiry would itself project the matter to be of public importance. Council of Ministers are not required to exercise their power under Section 3 of the Act in respect of a matter which is not of a definite public importance. Any and every matter is not required to be placed before the Council of Ministers for exercising powers under Section 3 of the Act, once the matter is taken up for discussion and decision it is assumed and accepted that the same is of definite public importance;

Learned counsel for the respondent has argued that for appointment of a Commission of Inquiry into any definite matter of public importance, is a power conferred upon the government and if such decision is taken by the government, it would be self explanatory that the matter is of public importance. It is not necessary that the Council of Ministers should opine and decide that there is a definite matter of public importance. Once the decision is taken in this regard, the decision so reflected by way of notification would speak for itself that the same is of definite public importance. In the case at hand, the Prohibition Policy was a matter of public importance which fact has been fairly accepted by the petitioner that the decision was taken in this regard to the Council of Ministers and the policy was accordingly promulgated. The policy directly concerned the public and it was important on account of the socioeconomic effects to be faced by all. The effects thereof were also considered by the then Council of Ministers and in this regard a report was elicited from the concerned quarters, which was again placed before the then Council of Ministers and the decision taken was reversed and the Prohibition Policy was withdrawn. It has been mentioned in the report that the State suffered the fiscal affects immensely as the earning from outside the State also suffered. So far as consumption of liquor in the State is concerned, the same was not very material, the then Council of Ministers examined the rate of crime on account of consumption of liquor and also without consumption of liquor, there was not much of difference in that regard. It stands established that excesses are always made in respect of every kind of act, so far as liquor is concerned the moderation and excesses are also seen in this regard but putting a spoke in the investigative wheel, where the State had suffered on account of collection of revenue would be rather damaging. All these facts, are self explanatory that the effect of promulgation of Prohibition Policy and withdrawal of Prohibition Policy had already acquired public importance. The Council of Ministers while taking the decision on 29.11.1999, was also conscious of the status of the matter being discussed by them and by their own act it stood so defined in view of the decision in appointment of a Commission for exercising the power of inquisition. The matter to be a definite matter of public importance was a writing on the wall. There was no need to rewrite it again.

It is, further argued that the word "definite matter of public importance" which has been used in Section 3 of the Act stands duly interpreted by the Apex Court in re: Shri Ram Krishna Dalmia and others v. Justice Tendolkar, AIR 1958 S.C. 538. A pointed reference has been made to paras 14, 15, 16 and 17, which read as under :

"14. Learned counsel for the petitioners next contends that if the Act is good in the sense that it has declared its policy and laid down some principle for the guidance of the Government in the exercise of the power conferred on it, the appropriate Government has failed to exercise its discretion properly on the basis of a reasonable classification. Article 14 protects all persons from discrimination by the legislative as well as by the executive organ of the State. "State", is defined Art. 12 as including the Government and "law" is defined in Art. 13 as including any notification or order. It has to be conceded, therefore, that it is open to the petitioners also to question the constitutionality of the notification. The attack against the notification is that the Government has not properly implemented the policy or followed the principle laid down in the Act and has consequently transgressed the bounds of the authority delegated to it. It is pointed out that in March, 1946, one Shri Tricumdas Dwarkadas, a solicitor of Bombay, had been appointed an officer on Special Duty to indicate the lines on which the Indian Companies Act was to be revised. He made a report which was, however, incomplete in certain particulars. Thereupon the Government appointed Shri Thiruvenkatachori, the Advocate General of Madras, to make further inquiry. The last mentioned gentleman submitted his report and on the basis of that report, it is said, a memorandum containing tentative proposals was prepared and circulated to elicit the opinions of various organisations. On 28th October, 1950 a Committee called the Indian Company Law Committee popularly known as the Bhaba Committee was appointed. That Committee went round and collected materials and made its comprehensive report on the basis of which the new Indian Companies Act has recently been remodelled. As nothing new has since then happened why, it is, asked, should any further inquiry be made ? The conclusion is pressed upon us that there can, in the circumstances, be no definite matter of public importance which can possibly call for an inquiry. We find no force in this argument. In the first place the Bhaba Committee at. p. 29 of its Report recommended that further inquiries may, in future, have to be made regarding some matters relating to Companies and, therefore, the necessity for fresh inquiry cannot be ruled not. In the next place the appropriate Government is empowered to appoint a Commission of Inquiry, if, in its opinion, it is necessary so to do. The preambles to the notification recite that certain matters enumerated under five heads had been made to appear to the Central Government in consequence of which the Central Government had come to the conclusion that there should be a full inquiry into those matters which, in its opinion, were definite matters of public importances both by reasons of the grave consequences which appeared to have ensued to the investing public and for determining such measures as might be deemed necessary in order to prevent a recurrence thereof. Parliament in its wisdom has left the matter of the setting up of a Commission of Inquiry to the discretion of the appropriate Government and if the appropriate Government has formed the opinion that a definite matter of public importance has arisen and calls for an inquiry the Court will not lightly brush aside the opinion."

"15. Learned counsel for the petitioners argues that granting that the question as to the necessity for constituting a Commission of Inquiry has been left to the subjective determination of the appropriate Government the actual setting up of a Commission is conditioned by the existence of some definite matter of public importance. If there be no such definite matter of public importance in existence then no question of necessity for appointing a Commission can arise. Reference is then made to the first preamble to the notification and it is pointed out that all the matters alleged to have been made to appear to the Central Government relate to some supposed act or conduct of the petitioners. The contention is repeated that the act and conduct of individual persons can never be regarded as definite matters of public importance. We do not, therefore, agree that the notification should be struck down for the absence of a definite matter of public importance calling for an inquiry."

"16. The point which is next urged in support of these appeals and which has given us considerable anxiety is that the petitioners and their companies have been arbitrarily singled out for the purpose of hostile and discriminatory treatment and subjected to a harassing and oppressive inquiry. The provisions of Art. 14, it is contended, protect every person against discrimination by the State, namely, against the law as well as the executive action and this protection extends to State action at all its stages. The petitioners'' grievance is that the Government had started discrimination even at the earliest stage when it conceived the idea of issuing the notification. Reference is made to the Memorandum filed by the Bombay Shareholders Association before the Bhaba Committee showing that the same or similar allegations had been made not only against the petitioners and their companies but against other businessmen and their companies and that although the petitioners and their companies and those other persons and their companies were thus similarly situate, in that allegations had been made against both, the Government arbitrarily applied the Act to the petitioners and their companies and issued the notification concerning them but left out the others from its operation. It is true that the notification primarily or even solely affects the petitioners and their companies but it cannot be overlooked that Parliament having left the selective application of the Act to the discretion of the appropriate Government, the latter must of necessity take its decision on the materials available to it and the opinion it forms thereon. The appropriate Government cannot in such matters be expected to sit down and hold a judicial inquiry into the truth of the materials before it, and examine the informants on oath in the presence of the parties who are or may be likely to be affected by its decision. In matters of this kind the appropriate Government has of necessity to act best judge of the reliability of its source of information and if it acts in good faith on the materials brought to its notice and honestly comes to the conclusion that the act and conduct of the petitioners and the affairs of their companies constitute a definite matter of public importance calling for an inquiry with a view to devise measures for preventing the recurrence of such evil, this court, not being in possession of all the facts will, we apprehended, be slow to adjudge the executive action to be bad and illegal. We are not unmindful of the fact that a very wide discretionary power has been conferred in the Government and, in indeed, the contemplation that such wide powers in the hands of the executive may in some cases be misused or abused and turned into an engine of oppression has caused considerable anxiety in our mind. Nevertheless, the bare possibility that the powers may be misused or abused cannot per se induce the Court to deny the existence of the powers. It cannot be overlooked that Parliament has confined this discretion, not to any petty official but to the appropriate Government itself to take action in conformity with the policy and principle laid down in the Act. As this Court has said in Matajog Dobey v. H.C. Bhare, 1955(2) SCR 925 at p. 932: (S) AIR 1956 SC 44 at p. 48)(O), "a discretionary power is not necessarily a discriminatory power and the abuse of power is not to be easily assumed where the discretion is vested in the Government and not in a minor official." We feel sure, however, that if this law is administered by the Government "with an evil eye and an unequal hand" or for an oblique or unworthy purpose the arms of this Court will be long enough to reach it and to strike down such abuse with a heavy hand. What, then, we inquire, are the salient facts here ? The Central Government appointed investigators to scrutinise the affairs of three of the petitioners'' concerns. Those investigators had made their reports to the Central Government. The Central Government had also the Bhaba Committee Report and all the Memoranda filed before that Committee. It may also have had other information available to it and on those materials it formed its opinion that the act and conduct of the petitioners and the affairs of their companies constituted a definite matter of public importance which required a full inquiry. Up to this stage there is no question of legal proof of the allegations against the petitioners as in a court of law. The only question is: do those allegations, if honestly believed, constitute a definite matter of public importance ? We are unable say that they do not."

"17. Reference is again made to the several matters enumerated in the five clauses set out in the first preamble to the notification and it is urged that those matters do not at all disclose any intelligible differntia on the basis of which the petitioners and their companies can be grouped together as a class. On the part of the Union of India reference is made to the affidavits affirmed by Shri H.M. Patel, the Principal Secretary to the Finance Ministry of the Government of India purporting to set out in detail as the background thereof, the circumstances which led to the issue of the impugned notification and the matters recited therein and the several reports referred to in the said affidavit. Learned counsel for the petitioners take the objection that reference cannot be made to any extraneous matters and that the basis of classification must appear on the fact of the notification itself and reliance is placed on certain observations in the dissenting judgments in Chiranjitlal Chowdhury''s case (B) (supra) and in item (2) of the summary given by Fazl Ali, J., in his judgment in F.N. Balsara''s case (C) (supra). In Chiranjitlal Chowdhury''s case (B) supra the majority of the Court read the preamble to the Ordinance which was replaced by the Act which was under consideration there as part of the Act and considered the recitals, reinforced as they were by the presumption of validity of the Act, as prima facie sufficient to constitute an intelligible basis for regarding the company concerned as a class by itself and held that the petitioner there had not discharged the onus that was on him. The dissenting Judges, after pointing out that the petition and the affidavit did not give any indication as to the differentia on the basis of which the company had been singled out went on to say that the statute also did not on the face of it indicate any basis of classification. This was included in cl. (2) of the summary set out in the judgment in F.N. Balsara''s case (C) (supra). Those observations cannot, therefore, be read as meaning that the classification must always appear on the face of the law itself and that reference cannot be made to any extraneous materials. In fact in Charanjitlal Chowdhury''s case (B) (supra) parliamentary proceedings, in so far as they depicted the surrounding circumstances and furnished the background, were referred to. In Kathi Raning Rawat''s case (E) (supra) the hearing was adjourned in order to enable the respondent to put in an affidavit setting forth the material circumstances. In Kedarnath Bajoria''s case (I) (supra) the situation brought about by the war conditions was taken notice of. The same may be said of the case of A. Thangal Kunju Musaliar v. V. Venkitachalam Potti, (1955) 2 SCR 1196 : (S) AIR 1956 SC 246 (P) and Pannalal Binraj v. Union of India, 1957 S.C.R. 23 : (S) AIR 1957 SC 397)(Q). In our judgment, therefore, there can be no objection to the matters brought to the notice of the Court by the affidavit of Shri H.M. Patel being taken into consideration along with the matters specified in the notification in order to ascertain whether there was any valid basis for treating the petitioners and their companies as a class by themselves."

It has been argued that the notification cannot be challenged on the ground that definite matter of public importance has not been culled out. The proposition stands settled that where the allegations, if honestly believed, would constitute a definite matter of public importance. It would mean that once the Council of Ministers is seized of the matter and a decision has been taken that the matter needs to be investigated/inquired into, this in itself would corroborate that the matter is of definite public importance because otherwise such a matter would not be placed before the Council of Ministers for constituting a Commission. Thus, the argument that no decision was taken by the Council of Ministers by categorically holding that the matter is definitely of public importance, is neither here not there and that the argument in this regard is not sustainable.

It is further contended that the personal knowledge of the Council of Ministers shared, reflected and discussed while taking a decision as envisaged under Section 3 of the Act, would constitute sufficient material before the Council of Ministers for coming to the aforesaid conclusion. This opinion formed by the Council of Ministers cannot be subjected to any further scrutiny before any forum. The Council of Ministers are not answerable as to why such opinion has been formed on the basis of their personal knowledge or information. The perusal of the notification dated December 7, 1999, shows that it is contained in the preamble of the notification that the Government of Haryana formed an opinion for the purpose of inquiry into the matters of public importance, which are specified in the notification, as a sequel thereto, the Commission of Inquiry has been appointed. My attention has been drawn to the aforesaid notification Annexure P5 and that the preamble reads as under :

"Extract from Haryana Government Gazette (Extra), dated the 7th December, 1999.

HARYANA GOVERNMENT

GENERAL ADMINISTRATION DEPARTMENT

Notificationthe 7th December, 1999

No. 44/1/99Pol(5P). Whereas the State Government of Haryana is of the opinion that it is necessary to appoint a Commission of Inquiry for the purpose of making inquiry into the mattes of public importance hereinafter specified :

xx xxx xxx xxx

Thus, the matter stands duly defined to be of public importance. Thus, it can be safely inferred that sufficient material was there before the Council of Ministers when the decision was taken accordingly.

It is further argued that the composite reading of the notification whereby terms of the reference of the Commission have been spelt out, would also show the status of the matter which stood laid before the Council of Ministers before taking the decision. The persual of the same shows that the Prohibition Policy has not been referred to the Commission for investigation and for critical analysis in that regard. The State was conscious of the fact that the status of the Prohibition policy already stands determined by way of judicial pronouncement by this Court which stands affirmed by the Apex Court. It is only the circumstances, which led to the imposition of the Prohibition Policy, have been required to be investigated and that while implementing the Prohibition Policy what role had been played by the persons occupying the high pedestals and, of course, through their kith and kin. It is further required, that the circumstances under which the Prohibition Policy was withdrawn, should also be probed and that those who mattered should be brought before the Public. It is also to be probed that how and in what manner the circumstances came into existence for withdrawal of the Prohibition Policy; was it on account of pecuniary gains ? The notification itself projects the status of the matter and thus without a flutter in the eye it can be said that the matter is of definite public importance.

(5) Since the petitioner has admitted the failure of the policy of the then Government i.e. the Prohibition Policy and that the loss caused to the State Exchequer has also, therefore, been accepted by then Government. Thus, it became incumbent upon the part of the present government to hold a fact finding inquiry and to see as to who were the beneficiaries of the said policy especially when within a span of two years the same government formed an opinion that the Prohibition Policy was required to be withdrawn and which was finally withdrawn. The laudable object to be achieved by way of Prohibition Policy is not under challenge and is not required to be scrutinised by the Commission of Inquiry. The inquiry is only to the effect as to how and in what manner the persons closely connected and in the then government earned benefits by way of allowing illegal acts of omission and commission under the umbrella opened by the then government; and

Learned Advocate General has argued that the petitioner was heading the Government at the relevant time when the Prohibition Policy was promulgated. Be that as it may, only for projecting the image of the political party, which was being led by him at that time, at the cost of loss of revenue of the State. But the fact of the matter is that Prohibition Policy was promulgated by him in the year 1986 but in a short span of two years, the same Cabinet retracted its steps and withdrew the Prohibition Policy. Surprisingly, no investigation was ordered as to what went wrong and why the wrong was made to be suffered by the State. It is only this, which is sought to be established and the Commission of Inquiry has been appointed. It shall not be out of place to mention here that the report was submitted by the government departments determining visavis the effects of imposition of Prohibition Policy. It has been clearly spelt out that the State Exchequer suffered pecuniary loss immensely. The comparative figures showed the incompetence of the then government while agreeing to promulgate the Prohibition Policy and the incompetence has been admitted which is evident from the fact that the Prohibition Policy was recalled. It is obvious that something was remiss, thus, it became necessary to probe into the same. It is the cardinal principle that whenever an act is committed by the authorities at the helms of affairs and the organisation/institution or the State suffers the loss, they become liable and responsible. Sometimes the investigations are ordered so that the State educates itself from committing such kind of blunder all over again. However, we cannot lose sight of the fact that the government headed by the petitioner itself admitted the blunder committed by it. It has become necessary that it must be found out as to who have been the beneficiaries in both the situations and at whose cost. The petitioner is estopped from blowing hot and cold in the same breath, after he had agreed with his Council of Ministers for withdrawing the Prohibition Policy upon being satisfied that imposition of Prohibition Policy was wrong. The petition would merit dismissal on this ground as well.

(6) The petitioner having subjected himself to the jurisdiction of the Commission way back in 20002001, it does not lie in the mouth of the petitioner to question the legality of the appointment of the Commission at this stage, the petitioner made insurmountable efforts for seeking the interim order against the working and functioning of the Commission which has not been granted and that against the said order the petitioner filed Special Leave Petition before the apex Court but no indulgence in this regard has been given. The reasons are known to the petitioner only as to why he is not appearing after having subjected himself to the jurisdiction of the Commission. The questionnaire issued by the Commission has not been answered by the petitioner for the reasons best known to him.

Learned Advocate General has argued that the petitioner having conceded to the jurisdiction of the Commission, is estopped from questioning the jurisdiction before this Court. It is a matter of fact that he subjected himself to the jurisdiction of the Commission was back on 24.11.2000, when he had appeared before the Commission through the counsel and sought permission/indulgence of the Commission to inspect the relevant record. The permission was duly granted and the record was inspected. It is a separate matter that after subjecting himself to the jurisdiction of the Commission, now, after about two years the constitution of the Commission has been challenged. It may be noticed that the son of the petitioner subjected himself to the jurisdiction of the Commission somewhere in the year 2000 and it cannot be said that the petitioner was not aware of the terms of reference of the Commission and so also the constitution of the Commission. Thus, having conceded to the jurisdiction of the Commission it does not lie in the mouth of the petitioner to challenge the incorporation of the Commission and so also the jurisdiction of the Commission. It is the settled law that once a person concedes to the jurisdiction of the forum it does not lie in the mouth of such person to question the jurisdiction of such forum. Reference has been made to a judgment rendered in re: National High School Madras v. Education Tribunal, 1992(2) SCT 461 (SC).

During the course of arguments, it was felt necessary that the State should be asked to produce the record and that the concerned officials should clarify visavis manner and the method in which the item for appointment of Commission of Inquiry was taken up and discussed. Consequently, Shri R.D. Sheokand, Special Secretary, Political and Services, Haryana, came present along with the relevant record on January 15, 2003. Upon enquiry he has stated that the Cabinet Secretariat did not receive any communication or any report for being placed before the Cabinet for the purpose of appointment of Commission of Inquiry, as no agenda in this regard was contained for the meeting of Council of Ministers scheduled to be held on November 29, 1999. He further stated that no report regarding the effects upon imposition of Prohibition Policy and upon withdrawal of the said policy were received by the Cabinet Secretariat to be placed before the Chief Minister or to be passed on to the Minister of Excise and Taxation. He also stated that he did not attend the meeting of the Cabinet which was held on the aforesaid date.

Upon the direction of this Court, Mr. Raj Kumar, Commissioner, Excise and Taxation, Haryana, also came present of January 14, 2003. He has also stated that he did not attend the meeting of the Cabinet held on the aforesaid date. He also did not send any communication to the Cabinet or to the Minister Excise and Taxation in respect of losses which were suffered by the State on account of no sale having been made during the enforcement of the Prohibition Policy because neither IMFL (Indian made foreign liquor) nor country liquor was produced nor sold in the State of Haryana during the period when Prohibition Policy remained in force. The information contained in the chart produced read as under :

Year

199495

199596

199697

199798

199899

License fee (Rs. in lacs)

32139.00

40216.00

4800

0.00

49101.00

Production of CL (in Lac PL)

312.04

314.90

55.71

3.08

326.89

Excise duty on CL (Rs. in Lac)

6240.88

6612.99

1169.82

64.66

6864.74

Production of IMFL (in Lac PL)

93.71

89.41

17.37

0.09

45.15

Excise duty on IMFL (Rs. in Lac)

3842.01

3665.86

712.11

3.74

1851.16

Production of Rectified Spirit (in Lac BL)

404.29

600.21

645.82

414.09

277.82

Total Revenue License fee, Excise duty & Others) (Rs. in Lacs)

52953.00

55354.00

6811.00

6811.00

4963.00

After hearing learned counsel for the parties, I am of the view that the pivotal question which needs to be dealt with in the first instance is: Whether before issuance of the impugned notification on December 7, 1999, the ingredients as envisaged under Section 3 of the Act, had been duly complied with/fulfilled ? In this context my attention has been drawn to Section 3 of the Act which already stand reproduced here above. According to me, the act of the government needs to be divided in two phases before the decision is taken for appointment of Commission of Inquiry.

Firstly, the appropriate Government should form an opinion that it is necessary to appoint a Commission of Inquiry. Thus, for coming to such opinion, it is incumbent upon the Government to examine pros and cons discreetly and distinctly. For this purpose, the government machinery must place the relevant documents and the record for the purpose of coming to an unbiased, untainted opinion for referring the matter to the thinktank i.e. Commission of Inquiry for probing into the matter for making appropriate recommendation for the benefit of the Government. Forming an opinion would mean an exercise which has to be carried out by the concerned authority so that the impressions formed get covered into crystal clear formation which may culminate into a judgment to be gone into threadbare by the Commission of Inquiry. The opinion so formed would be sought to be subjected to litmus test with the indulgence and help of Commission of Inquiry.

The Legislature has provided a word of caution by promulgation of this provision that such opinion formed should be tested once all over again. The persons who are allowed to sit at the helms of affairs of the State, constitutionally, their work and conduct can also be subjected to scrutiny by way of exercising the powers as envisaged under Section 3 of the Act. The invocation of this power has been clearly and categorically subjected to the constraints provided by the Legislature i.e. formation of opinion on the basis of the information derived from the documents or otherwise. This opinion has to be further subjected to the test and the appropriate recommendation would be available from the Commission of Inquiry. It has been seen over the years that the recommendation made by the Commission may not be binding upon the concerned quarters but may be kept in the files to be considered as a piece of education for the future. However, recommendations may be received which ultimately, may enable the prescribed authority to take action against those who have abused their power while being at the helms of the affairs of the State. This usage of power for such action must be under checks and balances, therefore, forming of "opinion" by the Government in this regard is absolutely necessary.

Opinion is definitely a belief stronger than an impression, less strong than positive knowledge, a conclusion or judgment held with confidence but falling short of positive knowledge. Thus, there is no scope for probabilities or conjectures. In a way, opinion may suffer from uncertainty till it grows into absolutism on the basis of evidence produced in support thereof. Generally, a judgment is also termed as an opinion but a conclusion is drawn on the basis of a judgment. Thus, minus the conclusion the judgment would be of no consequence vice versa conclusion alone would be meaningless till it is supported by a judgment.

It needs to be mentioned that on the basis of some facts elicited and disclosed, an impression may be formed, but, such impression, if it cannot be properly appreciated on the basis of corroborative material it does not reach the strength of an opinion. An opinion is conviction which must be primarily based upon the facts and the material complimentary to each other for the purpose of coming to a conclusion. Whereas impression is a fancy or lodgement in the mind which is not based upon the testimony and that the existence of the same cannot be traced to proof. Thus, forming an impression or forming an opinion would be quite different from each other. Thus, for forming subjective opinion it is necessary that to some extent some admitted accepted and acceptable material must be placed before oneself.

Thus, the word "opinion" as has been used in section 3 of the Act, would necessarily require that the opinion must be based upon corroborative information and not merely upon impressions and conjectures. In the case at hand, a pointed allegation has been made by the petitioner that there was no material produced before the Council of Ministers while forming an opinion. This has not been effectively controverted by the respondents. Apart from this, the perusal of the record shows that no exercise had been carried out for forming such opinion, such as, report from the concerned departments, opinion of the Secretaries of the Departments or perusal of the report elicited by the petitioner at the time of revocation/withdrawal of the Prohibition Policy. The Special Secretary to Government of Haryana, Political and Services, has very fairly disclosed before this Court that no such material had been received by the Cabinet Secretariat nor any report which is stated to have been relied upon by the petitioner for relocation of the Prohibition Policy, was ever received by the Cabinet Secretariat. Resultantly, no such information or documents were placed before the Council of Ministers. He has further disclosed that the item was not contained in the agenda circulated amongst the Council of Ministers in the meeting scheduled to be held on 29.11.1999. The item was initiated with permission of the Chair and the decision was taken by the Council of Ministers then and there, which fact is evident from the perusal of the minutes of the meeting of Ministers recorded on the aforesaid date. The Commissioner, Excise and Taxation, Haryana, has also disclosed that no report or communication had been sent by him to the Cabinet Secretariat or to the Minister of Excise and Taxation in this regard. Thus, it is obvious that none of the Council of Ministers was educated or duly informed for forming an opinion while agreeing to appoint Commission of Inquiry. Thus, the plea that the Council of Ministers being representatives of the people of State of Haryana were well versed with the facts and figures relating to the decision which was to be taken in respect of the matter, stands belied. I am afraid that for substantiating this plea, no affidavit of any of the Council of Ministers has been placed on record nor respondents No. 2 and 3 have disclosed as to what information was disclosed before the Council of Ministers at the time of taking relevant decisions in appointing the Commission of Inquiry. The minutes of the meeting so recorded, which have been produced before this Court, do not spell out the material which was placed before the Council of Ministers or the knowledge which was disclosed by them at the time of discussing the item sought to be included in the agenda with the permission of the Chair. It has also not been disclosed as to how this matter was initiated and by whom, as no mention has been made in the minutes so recorded.

The second facet which needs to be noticed is that the Commission of Inquiry can be promulgated only for the purpose of making inquiry into any "definite matter of public importance". Thus, it would mean that while taking a conscious decision, the Council of Ministers must decide the status of the matter to be inquired into i.e. as to whether the said matter is a definite matter of public importance. The Legislature consciously and cautiously incorporated this ingredient for the purpose that a matter may not be allowed to be inquired into in personam, lest the same may be used for and in respect of political animus and rivalry or for settling the political vendetta. It should also not reflect the colour of animus visavis the stalwarts at the helms of affairs of the government at the relevant time. The Legislature was conscious of another fact that by appointing a Commission of Inquiry the fiscal effect shall have to be suffered by the State Exchequer. Thus, it may not be that appointment of Commission of Inquiry may come under clout and the expenses so incurred may not remain explainable by those who may take such decisions.

Learned counsel for the petitioner has made pointed reference to the fact that no decision in this regard has been taken by the Council of Ministers as none is decipherable from the respective replies submitted by the respondents and the record which has been produced by the State. On the other hand, Learned Advocate General, has taken the plea the matter which has been decided to be inquired into reflects itself as a matter of public importance, as such no decision in this regard was required to be taken by the Council of Ministers. It is further argued that the decision by the then Chief Minister having caused loss to the State Exchequer does not require rewriting to be defined as a matter of public importance. I am afraid, the argument of learned Advocate General is devoid of any merit. While taking a conscious decision, the government is expected to take all facts and figures into consideration and is also expected to weigh the pros and cons in its entirety. The Legislature has definitely required that a matter with regard to which the opinion has been formed on the basis of material placed before the Council of Ministers, must be definitely a matter of public importance. Thus, it would mean that it must relate to the public at large and it should not be directed to be inquisitional for the purpose of settling personal scores, personal vendetta or political rivalry. The persual of the respective replies filed by the respondents, does not disclose that any such decision had been taken by the Council of Ministers. The perusal of the record also shows that no such effort had been made to reflect the matter to be of public importance with regard to which decision to appoint Commission of Inquiry had been taken.

It shall be apposite to refer to the dicta of the apex Court rendered in re: State of Madhya Pradesh v. Shri Arjun Singh and others, AIR 1933 Supreme Court 1239. It has been succinctly observed by the apex Court that formation of opinion by the Government would be dependent upon the subjective satisfaction of appropriate government but should be based on an objective or material and not merely on some vague allegations or hearsay evidence or to make fishing enquiry. The relevant para 6 of the aforesaid judgment reads as under :

"In our opinion, so far as the terms of reference contained in Clauses A and B of the second reference are concerned, the same are already covered in the terms of the original reference. Neither counsel controverted this position. In this view of the matter there can be no bar to the commission to enquire into these matters under the original reference itself. Now, so far as Clause `C'' of the second reference is concerned, the original reference in term No. 1 itself covers the question as to how the affairs of the Churhat Children Welfare Society are conducted and how the share of its profits derived the money collected though lottery has been utilised. We further make it clear that nothing precludes the commission from making an enquiry as to whether any profit derived or money collected through Churhat Lottery had been utilised for constructing the mansion/bungalow at Kerva Dam. But so far as the following portion of clause C of the second reference is concerned, the High Court rightly quashed the same as there was no relevant material before the State Government for enlarging the scope of existing enquiry under the original reference :

"the enquiry be also made as to at what cost he and his family members have acquired and built his mansion at Kerva Dam and from where they got the funds for that purpose."

It is also made clear that this judgment does not preclude the State Government from appointing any commission of enquiry according to law after applying its mind to any fresh or further material placed before it. Such formation of opinion depends on the subjective satisfaction of an appropriate Government but should be based on an objective or real material and not merely on some vague allegations or hearsay evidence or to make fishing enquiry. The appeal is disposed of as aforesaid. No order as to costs."

The persons at the helms of affairs of the State are expected to project themselves and act in a crystal clear manner and that the element of doubt has to be kept at bay. It has been observed by the apex court on a number of occasions that the general approach now in the courts is to require, that the government must produce reasonable grounds for its action even where the jurisdictional issue is subjectively framed. It would mean that by lifting the veil and applying mathematical table the result should be far too obvious.

In somewhat similar circumstances, the appointment of Commission of Inquiry was the subject matter and the questions raised were referred to a larger Bench before a Full Bench of Kerala High Court and that an educative and legislative opinion is decipherable from the said judgment which has been rendered in re: R. Balakrishna Pillai v. State of Kerala, AIR 1989 Kerala 99. Somewhat similar pleas had been taken that the power has been exercised under Section 3 of the Act mala fidely on account of personal animosity and political rivalry and with a biased mind. All these averments have been tested and examined and in that case the government produced the files reflecting the application of mind in a crystal clear manner, which is missing in the case at hand. Thus, it is imperative that the government should establish that there was an application of mind and that there was material before the Council of Ministers for the purpose of forming opinion and appointing Commission of Inquiry and that the matter is of definite public importance. The material once it is shown to have been produced, it would not be within the domain of the Court to examine as to whether the decision has been taken by the Council of Ministers correctly or incorrectly. The Court is not expected to sit as Court of appeal is such situations. In the case at hand, neither the material was produced nor the discussion which is alleged to have taken place has been reflected in any manner whatsoever. Thus, the element of application of mind is missing. In view of the above, one is left with an irresistible conclusion that there was no application of mind in the absence of the material and thus no judicious opinion was formed for the appointment of Commission of Inquiry. Perhaps, the Council of Ministers was not even aware of what they were expected to do or what they were required to do, much forming an opinion and a decision that the matter is of public importance.

Thus, the conclusion is far too obvious.

It shall be appropriate to take into consideration the argument of learned Advocate General Haryana, that the petitioner having conceded to the jurisdiction of the Commission of Inquiry, is estopped from challenging the constitutional and appointment of the Commission. It has been pointed out that the petitioner appeared before the Commission and asked for inspection of the record for the purpose of submitting reply to the show cause/questionnaire issued by the Commission. It is also argued that the petition suffers from delay and laches as the petitioner became aware of the appointment of the Commission of Inquiry by having participated before the Commission by way of inspection of record somewhere in 20002001. It is too late in the day for him to challenge the jurisdiction of the Commission having not been legally and correctly constituted.

On the other hand, learned counsel for the petitioner has argued that the act of seeking indulgence to inspect the record would not amount to conceding to the jurisdiction of the Commission. It is admitted fact that no reply to the questionnaire/show cause issued by the Commission has been filed till today. It is only upon inspection of the record that the relevant documents came into possession of the petitioner and the relevant decision was taken for questioning the jurisdiction of the Commission. Admittedly, the petition was filed on 30.10.2001 and that the petitioner has never ever submitted to the jurisdiction of the Commission and that no reply to the show cause has been filed till today.

I am afraid the argument of learned Advocate General Haryana is devoid of any merit. Participation by the petitioner before the Commission for the purpose of inspection of the record would not amount to conceding to the jurisdiction of the Commission. It may be noticed that the admitting Bench directed that the petition should be heard within six months, if possible. The interim order was declined against which Special Leave Petition was filed and the apex Court declined to grant the said relief but made an observation that this Court may decide the petition within one month if possible. It is not at all sustainable that the petitioner conceded to the jurisdiction of the Commission. In fact no meaningful argument has been addressed by the learned Advocate General in this regard and that the citations referred to relate to the inquiries conducted in service matters and no citation has been referred to which may be akin to the facts pertaining to this case. Thus, the argument is fallacious and the same is rejected.

I am impressed and convinced by the primary contentions of learned counsel for the petitioner and I have held that there was no material produced before the Council of Ministers in any manner whatsoever. Thus, no opinion was formed by way of application of mind in appointing the Commission of Inquiry and that the Council of Ministers failed in its duty in opinion as to whether the matter is of definite public importance. The ingredients as envisaged under section 3 of the Act, have not been complied with/fulfilled. Resultantly, the impugned notification dated December 7, 1999, copy Annexure P5, issued by Government of Haryana, is not sustainable. As such, the petition is allowed and the notification Annexure P5 is quashed. No order as to costs.

Since I have allowed the petition on the aforesaid grounds, it is not necessary for me to opine in respect of other arguments and the points at issue raised by the petitioner and the arguments addressed in reply thereto. The said issues are left unanswered.

The Government would not be precluded from carrying out the exercise in this regard subject to and in view of the above observations and, of course, in accordance with provisions of law.

One book containing the minutes of the meeting of the Council of Ministers, for the relevant period, has been returned to Mr. Surya Kant Sharma, Advocate General, Haryana.