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Judgment
Srinivasan, J.—The writ petition is a Public Interest Litigation having been filed by the General Secretary of Dravida Munnetra Kazhagam, a
political party in this State. On 18-2-1992, Mahamakam festival was celebrated at Kumbakonam. It is well known that the festival is celebrated
once in 12 years and is considered to be a very prominent religious event of great public importance all over the country, That year, the Chief
Minister of the State was physically present at the time of the festival to have a holy dip in the Mahamakam Tank at the auspicious hour, as already
announced. But unfortunately, there was heavy stampede during the festival, as a result of which, several pilgrims died and several got injured. The
newspapers gave different versions about the accident. Different reasons were adduced by the political parties as well as by the members of the
public as regards the cause of the accident. Some of them indicted the Government and the Chief Minister. The Government of Tamilnadu issued a
press release on 20.02.1992 denying the allegations made against them and stating that the Additional Collector of Thanjavur District was asked to
conduct and enquiry into the circumstances leading to the tragedy. The Press release assured the people of the state that based on the report,
which may be submitted by the Additional Collector, the Government of Tamil Nadu will take appropriate action. The Chief Minister assured the
people that all steps will be taken to provide succour and relief to the surviving members of the families of the deceased as well as to the injured
persons.
The petitioner filed W.O. No. 2661 of 1992 seeking a writ of mandamus directing the Union of India to appoint a Commission of Inquiry
consisting of a sitting Judge of the High Court to enquire into the circums anccs leading to the tragic death and injury of over hundred pilgrims who
had come for a holy dip in the Mahamakam Tank during Mahamakam festival at Kumbakonam on 18.2.3992 and for other relief. The writ petition
was dismissed on 25.2.1992 by a single Judge of this Court, who held that it could not be styled as a public interest litigation and the power u/s
3(1) of the Commission of Inquiry Act, 1992 was purely discretionary and it was not necessary for the court to exercise its jurisdiction under
Lrt.226 of the Constitution of India. The petitioner therein filed Writ Appeal No. 393 of 1992. At the same time, the petitioner also filed the
present writ petition against the State Government as well as the Union of India and the Additional Collector, Thanjavur District. Infact, the Union
of India and the Additional District Collector were impleaded at a later state, though they were not originally shown as party- respondents in the
writ petition. Therefore, the writ appeal was dismissed on 29.4.1992 by the following Order: -
Since a comprehensive writ petition has been filed in W.P. No. 5549 of 1992, in which the State of Tamil Nadu, Union of India, the Additional
Collector of Thanjavur are party- respondents, the appeal is not necessary. It has become infructuous. It is accordingly dismissed.
This writ petition has been pending and has come up for final disposal before us. At the outset, it may be pointed that at this distance of time, the
grant of relief as prayed for by the petitioner, will be futile and ineffective, as it will be humanly impossible to get at the truth of the matter, even if
hundreds of persons are examined in an Inquiry. In such a situation, it is not proper for this Court to issue a futile writ. The question as to whether a
writ can be issued in such circumstances, has been considered by the supreme Court in K.N. Guruswamy Vs. The State of Mysore and Others, .
After finding that in the ordinary course, the appellant before the Court would have been entitled to a writ, as he sought, the court said:-
owing to the time which this matter has taken to reach us (a consequence for which the appellant is in no way to blame for he has done all he
could to have an early hearing), there is barely a fortnight of the contract left to go. We were told that the excise year for this contract (1953-54)
expires early in June. A Writ would, therefore, be ineffective and as it is not our practice to issue meaningless writs we must dismiss this appeal and
leave the appellant content with an enunciation of the law
Even otherwise, in our opinion, there is no merit in this writ petition which would warrant the grant of a writ of mandamus as prayed for by the
petitioner. Even the prayer in the writ petition is unsustainable as such. It is not open to the petitioner to seek the appointment of a Commissioner of
Inquiry with a Sitting Judge of the High Court to Inquire into the matter. It is not for the Court or for the petitioner to decide who should man the
Commission. If at all, the court can only direct the Government to appoint a Commission of Inquiry and it is for the Government to decide who
should be the person to conduct the enquiry. Further, there is an alternative prayer that this court should itself appoint a panel of Commissioners
consisting of a retired High Court Judge or such other Judicial Officers as this Honourable Court may deem fit and proper to inquire into the tragic
incidents etc. That would mean that the petitioner would require the Court to act as an investigating body. Such a prayer can never be
countenanced. The Court can only exercise judicial functions and issue appropriate directions; but it cannot function as an investigative body and
gather evidence so as to provide the same to the Government in order to act further on such evidence. The last part of the prayer seeking the
Court to frame guidelines and remedial measures in future in similar festivals of this magnitude is also unsustainable. It is a legislative function and a
Court cannot exercise such functions.
We have no doubt that the relief of mandamus cannot be sought by the petitioner, when the power of the Government is entirely discretionary.
Section 3(1) of the Commissions of Inquiry Act, 1952, reads as follows:-
Appointment of Commission:
(1) The appropriate Government may, if it is of opinion that it is necessary so to do, and shall, if a resolution in this behalf is passed by the House
of the People, or as the case may be, the Legislative Assembly of the State, by notification in the Official Gazette, appoint a Commission of Inquiry
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.
It is seen that the Government has a discretion to appoint a Commission of Inquiry, if in its opinion, it is necessary so to do with regard to a definite
matter of public importance. On the other hand, the Government is bound to appoint a Commission of Inquiry, if a resolution is passed in that
behalf by the House of the People, or, by the Legislative Assembly of the State. Thus, it is only in the event of a parliamentary resolution or a
resolution by the Legislative Assembly, the Government is duty bound to appoint a Commission, whereas in the absence of such a resolution, the
Government has'' got a discretion to decide whether a Commission of Inquiry is necessary at all. Even if the matter is one of public importance and
it is a definite matter, the Government is not bound to appoint a Commission of Inquiry. There is no dispute with regard to the fact that the
Government has got discretion to appoint a Commission of Inquiry. The position is also well settled and there are several rulings to that effect. Vide
Vijay Mehta Vs. State of Rajasthan, and Rajendran v. Home Secretary AIR 1983 Ker 50. In the latter decision, a Division Bench of the Kerala
High Court has observed:
The Expression ""if it is of opinion"" used in the sub-section makes it abundantly clear that, unless compelled by the Lok Sabha or the Legislative
Assembly of the State Government, the Government has the discretion to appoint or not to appoint a Commission in terms of Section 3 of the Act,
depending upon its opinion"".
The petitioner has, in his affidavit, referred only the newspaper reports, which have given different versions and to the circumstances that several
political parties have demanded a Commission of Inquiry. Apart from the newspaper reports, the petitioner has not referred to any other source of
information for asserting the facts as stated in the affidavit. In fact, the petitioner has not chosen to make any particular assertion that the accident
took place on account of some lapse on the part of any particular official or an account of any particular official or an account of any particular fact
this year. Excepting to raise a doubt that it could have happened because of the presence of the Chief Minister of the State at the place, the
petitioner has not referred to any material in his affidavit to his personal knowledge as to how the accident had happened. In such circumstances,
the Court is not bound to act upon the said statement and grant the prayer. It is too well settled by now that no reliance can be placed on
newspaper reports for issuing writs by Courts. Vide Laxmi Raj Shetty and Another Vs. State of Tamil Nadu, . Excepting the newspaper reports,
the petitioner has not chosen to place any other material before the court.
As per the Press Release dated 20.2.1992, the Government appointed the Additional District Collector of Thanjavur District to make an
enquiry into the matter. The said Additional Collector made a detailed enquiry and examined several witnesses and marked several exhibits. Before
that, he issued Press Release even on 20-2-1992 directing the people to come forward, if they had any information regarding the accident either to
file a written statement or give their names showing their willingness to be examined. The last date was fixed as 2.3.1992 and a subsequent Press
Release issued on 28.2.1992 said that the sitting of the Inquiry would be at the Revenue Divisional Officer''s office at Kumbakonam on 4.3.1992
and any one was free to come on that day and volunteer for the enquiry. They were also asked to give photographs or video cassettes which
would throw light on the accident, It is seen that 131 persons volunteered to give evidence before the Officer. But after notice were sent, only 67
persons appeared for the enquiry and their statements were recorded. Of the 74 persons injured, 21 appeared for the enquiry and their statements
were recorded. The Officer has classified the witnesses as (1) persons who were injured in the stampede (2) persons who volunteered to give
evidence before the Officer: (3) Police Officers: (4) Medical Officers: (5) Other department Officers: and (6) Private witnesses who were
summoned for the enquiry. A detailed report was prepared by the said Officer referring to the entire evidence recorded by him and submitted on
28.7.1992. The concluding portion of the report reads as follows:-
''Thus, it is seen that it was a combination of circumstances which led to the accident and no one could be held responsible for the accident. This
was one of these rarest of rare coincidences where everything happened in conjunction to cause the accident.
In view of the said report, the Government found no necessity whatever to appoint a Commission of Inquiry. A copy of the said report has been
placed before us. A copy of the same has also been furnished to the petitioner''s Senior Counsel at the time of arguments. In fact, the petitioner has
impleaded in the writ petition, the Additional Collector of Thanjavur District as the 3rd respondent. Yet, the petitioner has not chosen to cast any
aspersion against the enquiry or make any allegation against the Officer. In such circumstances, we are of the opinion that the discretion of the
Government has been properly exercised in this case and once it is seen that the discretion exercised is based on relevant materials, there is no
question of this Court issuing a writ directing the Government to appoint a Commission of Inquiry under the Commission of Inquiry Act.
It is also admitted by learned senior counsel for the petitioner that the arrangements made prior to the festival were really good and all the
arrangements, which were referred to in the counter affidavit by the Government, were actually made. In para 3 of the counter affidavit, a detailed
reference is made to the meticulous arrangements made by the Government in order to manage the heavy crowd. In fact, the Government
expected even more number of pilgrims to take part in the festival than in the previous festival held in 1980.
Soon after the accident, the Government sanctioned exgratia payment of Rs. 50,000/- to the next of the kin of each deceased and the Central
Government granted Rs. 20,000/- to such people from the Prime Minister''s Relief Fund. The amount was disbursed to the legal heirs within 10
days after the accident. The All India Anna Dravida Munnetra Kazhagam party granted Rs. 30,000/- to each of the bereaved families. According
to the counter affidavit, thus a total sum of Rs. 1,00,000/- was given to each of the bereaved families. Apart from that, the injured were given Rs.
5,000/- each. None of the persons, who got injured in the accident and none of the members of the families of the deceased, has sought for the
appointment of a Commission of Inquiry.
The question as to what exactly is the role of the court in matters of this type, has been considered in detail by a Division Bench of the Delhi
High Court in Peoples Union for Democraticrights and Another Vs. Ministry of Home Affairs, . It is worthwhile to refer to the following passage in
the said judgment.
The Court should not have an attitude that they alone are protectors of fundamental rights of citizens and a democratically elected Government
have no such feeling or inclination. Initial attitude of courts vis-a-vis Executive organ of a state should not be of suspicion in this behalf. Of course, if
the court after inquiring and due scrutiny finds the State not performing its duty, the Court can and should step in to protect and enforce
fundamental rights to the extent it can give relief. The attitude ought to be of trust and not always of confrontation. The people elect their
representatives in democratic form of Government. It is the duty of those elected representatives to safeguard the interest of the citizens they
represent and satisfy the democratic values of the people they represent. It is primarily the duty of the Executive part of the State to safeguard the
rights whether fundamental or otherwise of their citizens. It is only when Executive fails in protecting this right that a citizen can approach for
enforcement of his fundamental rights through courts. But, basically the duty remains of the Executive to see to it that the fundamental rights of the
citizens are not infringed. But the condition which must be ful-filled before public interest litigation is entertained by superior court is that the Courts
should be in a position to give effective and complete relief. If no effective or complete relief can be granted, the court should not entertain public
interest litigation ------- While it is true that the Court under Article 226 has very wide jurisdiction nevertheless, there has to be an exercise of
judicial discretion on the part of the court in deciding whether to exercise its discretion under Article 226 of the Constitution in a case of public
interest litigation. The greater has to be the judicial discretion and restraint. Though the Courts have the power to give directions to the Executive,
the courts, however, is ill equipped to run the administration. The power should therefore be exercised by the Court only where effective relief can
be granted to the people and which relief would not otherwise have (been?) granted but for the Court''s intervention"".
We are entirely is agreement with the aforesaid view.
Strong reliance is placed by learned senior counsel for the petitioner on the judgment of a Division Bench of the Orissa High Court in
Janamohan Das and Others Vs. State of Orissa and Others, . The Division Bench held that the discretion conferred by Section 3 of the
Commissions of Inquiry Act cannot be said to be ''unfettered'' in as much as the Parliament did think that if a definite matter of public importance is
there, a judicial enquiry should be ordered, if a need for the same exists according to the appropriate Government. There is no dispute so far.
According to that judgment, if any reasonable man reasonably instructed in law would have come to the conclusion that the need for judicial
enquiry exists, the denial of the same by the Government could, in the facts of a case, be regarded by the Court as meant to serve alien purpose.
The ruling of the Division Bench is obviously based on the facts of that case. In fact, the case related to disaster of unprecedented proportions in
that there were 124 deaths according to the Government well known as hooch tragedy, which was a man made tragedy. In those circumstances,
even though the evil of drinking is a daily occurrence, the Bench decided that there should be a Commission of Inquiry to enquire into the matter
fully. In fact, the Bench also directed payment of compensation to the kith and kin of the victims. The facts of that case are entirely different from
the present one and the ruling as such is not applicable to this case. We arc convinced on the facts and circumstances of this case that the petitioner
has not made out a case for the issue of mandamus.
Learned senior counsel for the petitioner invited our attention to the judgments of the Supreme Court on M.A. Rasheed and Others Vs. The
State of Kerala, , State of Punjab and Another Vs. Gurdial Singh and Others, and Express Newspapers Pvt. Ltd. and Others Vs. Union of India
(UOI) and Others, . The observations made in those judgments shall be read in the context of the facts of those cases and they cannot be torn out
of contempt and made applicable to the present case, in which the facts are, as pointed out supra.
Learned Advocate General has drawn our attention to the judgment of a Division Bench of the Orissa High Courts in ""Dr. Harehtishna Mahtab
v. C.M. Orissa "" AIR 1971 Ori 175. The Division Bench held that the enquiry under the Commissions of Inquiry Act is purely administrative and
not quasi judicial and the Commission has no duty to act judicially. There is no necessity for us in this case to express any opinion on that aspect of
the matter. As pointed out already by us, the facts of the case do not warrant the grant of a writ of mandamus as prayed for by the petitioner.
In the result, the Writ Petition fails and is dismissed. No costs.