Gujarat High Court
State Of Gujarat Through The ... vs Kalpit Yogeshbhai Shah on 30 March, 2021
Bench: Bhargav D. Karia
C/LPA/365/2021 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 365 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 4827 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/LETTERS PATENT APPEAL NO. 365 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH
and
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
==========================================================
1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
==========================================================
STATE OF GUJARAT THROUGH THE GOVERNMENT PLEADER
Versus
KALPIT YOGESHBHAI SHAH & 2 other(s)
==========================================================
Appearance:
MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MS AISHWARYA GUPTA,
ASST.GOVERNMENT PLEADER(1) for the Appellant(s) No. 1
MR PERCY KAVINA, SENIOR ADVOCATE WITH MR MEET G RAVAL(10630) for
the Respondent(s) No. 1,2
MS MANISHA LAVKUMAR, SENIOR ADVOCATE WITH MR RONAK RAVAL for the
==========================================================
CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM
NATH
and
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 30/03/2021
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE VIKRAM NATH)
1. The incident which took place in Shrey Hospital
on the fateful morning of 6th of August 2020, was one
which shook our conscience. The fire which took place
in the COVID hospital almost instantaneously killing
those in the Intensive Care Unit of the hospital and
injuring many more, requires serious investigation.
It was in order to ascertain the truth behind such
incident that the Commission of Inquiry was appointed
by the State Government under the Commission of
Inquiry Act, 1952. When an incident, as shocking as
this takes place, it is in the interest of the public
at large, that the truth is ascertained as early as
possible. Timely ascertainment of the truth is a part
of the process of delivery of justice and is an
important component for granting closure to the
family members of the victims. Any delay in this
regard and prolonging the entire process would only
exacerbate their suffering, all the more when the
Supreme Court is regularly monitoring the inquiry as
also the role of the State Government in Suo Motu
Writ Petition (Civil) No.07 of 2020.
2. The importance of truth for imparting justice
cannot be undermined, for it is the truth alone,
which forms the bedrock or the foundation of justice.
However, equally important is the path to seeking the
truth and as the guardians of justice, it is our
solemn duty to ensure that this path is unhindered.
It is also our responsibility to safeguard this path
and those tread upon it.
3. The Indian ethos accords the highest importance
to truth and this is reflected from our National
Emblem which is inscribed with the phrase "Satyamev
Jayate". These words echo the sentiments of our
society and form the very foundation of our way of
life. In order to ensure that truth triumphs, it is
the Judiciary that needs to play an active role,
protecting those who seek the truth and ensuring that
the truthseeking path is welllit and those who seek
the truth can bravely push forward without any force
to pulling them back. That truth is the soul of
justice and is the only guiding star in the entire
judicial process, is a fact ingrained in our souls.
4. It is by now well settled that a Commission of
Inquiry under the Commission of Inquiry Act, 1952 is
a fact finding body appointed to ascertain the truth
in a definite matter of public importance and it is
this body that treads upon the path seeking the
truth. Any attempt to impede its path or to place
obstacles before it, must be repelled, for without
truth there can be no justice. As the Guardians and
the priests of this Temple of Justice, we must do our
best to remove such obstacles and ward off any
attempt to stall the truthseeking process.
5. This intracourt appeal under Clause 15 of the
Letters Patent has been preferred by the State of
Gujarat assailing the correctness of the order dated
19th March 2021 passed by the learned Single Judge in
Special Civil Application No.4827 of 2021 whereby the
learned Single Judge after recording reasons issued
notice returnable on 5th April 2021 and in the
meantime granted adinterim relief in terms of
paragraph 6(C) of the petition whereby prayer had
been made to restrain the respondent No.2 i.e. the
Hon'ble Justice D.A. Mehta Inquiry Commission (in
short referred to as "Justice Mehta Commission") from
pronouncing its report pending admission and/or final
disposal of the petition.
6. An unfortunate incident of fire occurred at
Shrey Hospital, Navrangpura, Ahmedabad on 6th August
2020 in which 8 Covid patients succumbed to burn
injuries and several others were injured.
7. The State Government, exercising its powers
under Section 3 of The Commissions of Inquiry Act,
1952 (hereinafter referred to as "the 1952 Act")
appointed a One Man Commission of Inquiry consisting
of Hon'ble Justice K.A.Puj, Former Judge of the High
Court of Gujarat vide notification dated 11th August
2020 to inquire into the said incident and submit a
report within three months and the Terms of Reference
as quoted in paragraph 2 of the notification reads as
follows:
"(a) To inquire into exact sequence of events
leading to the incident of fire which occurred
on 06.08.2020 at Shrey Hospital, Navrangpura,
Ahmedabad and the causes of the aforesaid
incident;
(b) Adequacy of fire safety measures existing
at Shrey Hospital at the time of incident;
(c) To ascertain whether the said incidence of
fire and the resultant deaths were the result of
negligence or breach of duty on part of any one
or more authorities or individuals.
(d) To recommend suitable measures to prevent
recurrence of such incidents."
8. The Commission issued public notice dated
07.10.2020 inviting material, affidavits, statements
from all concerned relating to the incident by 21st
October 2020. Relatives of the deceased filed
affidavits dated 20th October 2020 before the
Commission. The Commission thereafter made a request
for extension of time whereupon the State Government
issued a notification dated 06.11.2020 extending the
time limit by nine months from the date of original
notification i.e. from 11.08.2020.
9. In supersession of the notification dated
11.08.2020, a fresh notification under Section 3 of
the 1952 Act came to be issued on 11.12.2020 whereby
Hon'ble Justice D.A.Mehta, Former Judge of the High
Court of Gujarat was appointed as a One Man
Commission to inquire into the very same fire
incident which had occurred at Shrey Hospital on
06.08.2020 and the Terms of Reference being the same
as mentioned in the notification dated 11.12.2020.
Justice Mehta Commission was required to submit its
report within three months. The State of Gujarat
issued another notification dated 25.02.2021
extending the time limit for Justice Mehta Commission
to submit the report on or before 31.03.2021.
10. Justice Mehta Commission issued a public
advertisement on 25.12.2020 inviting all
interested/concerned with the said incident to submit
their documents, statements, affidavits, additional
affidavits on or before 11.01.2021. Further Justice
Mehta Commission on 15.01.2021 issued summons to all
concerned including the relatives of the deceased
which included the writ petitioners to appear before
it on 03.02.2021 for recording their statements and
for providing whatever assistance they can in the
inquiry. On 1st of February, 2021, petitioner No.1
Kalpit Yogeshbhai Shah who had lost two of his close
relatives in that unfortunate incident submitted an
application before Justice Mehta Commission
requesting to supply all the documents it had
collected till then. It is a short request which is
reproduced below as translated in English. The
written request was in the vernacular language:
"From:
Kalpit Yogeshbhai Shah,
Shefali Kharvakuva,
Dholka382225
Ahmedabad Rural
Date: 01/02/2021
To
Mr. Giriraj K. Upadhyay
Secretary,
Hon'ble Justice D.A.Mehta Inquiry Commission,
(Regarding fire incident of Uday Shivanand Hospital
Rajkot and Shreya HospitalAhmedabad)
First Floor, STTI Bhavan,
GCERT Campus, Sector12,
Gandhinagar382016
Email: [email protected]
Sub: Your notice dated: 03/02/2021 to remain
present personally.
Sir,
I am the victim of the aforesaid incident. I
hereby humbly request you to provide certified
copies of all the relevant papers of this case so
that I can know as to what has been stated by the
other parties in their affidavit. As this is my
first application for seeking adjournment, kindly
grant me period of four weeks upon receipt of the
certified copies.
Further, I visit Ahmedabad from Dholka on
Monday for business purpose. I, therefore request
your goodself that, I may be called on any Monday
after four weeks of receipt of all the relevant
papers so that, I can reach Gandhinagar from Dholka.
Thanking You.
Yours faithfully,
Sd/(Illegible)
Kalpit Yogeshbhai Shah"
Another application was moved by the petitioner
No.1 on 04.02.2021 making a request to the Commission
to permit him to visit I.C.U. of Shrey Hospital with
his photographer which also was in vernacular
language. English translation of the same is as
follows:
"From:
Kalpit Yogeshbhai Shah
Shefali Kharyakuva
Dholka 382225
Ahmedabad Rural
Date: 04.02.2021
To
Shri Giriraj K. Upadhyay
Secretary
Hon'ble Justice D. A. Mehta
Enquiry Committee
(regarding fire incidents at
Uday Shivanand Hospital - Rajkot
and Shrey Hospital - Ahmedabad)
First Floor, STTI Bhavan,
GCERT Campus, Sector12,
Gandhinagar382016
Email: [email protected]
Sub.: Application for visit of Shrey Hospital
with my photographer
Respected Sir,
I am victim of the above mentioned incident. I
respectfully state that fire had taken place at Shrey
Hospital on 06.08.2020 and my grand father and my
uncle died in it. I request you to allow me to visit
I.C.U. unit and Shrey Hospital with my photographer
with a view to verify whether the fire was accident
or not. I further request you to intimate the date
and time 3 weeks in advance so that I can remain
present in person.
Thanking you.
Yours faithfully
Kalpit Yogeshbhai Shah"
The Commission passed a detailed order dated
05.02.2021 on the two aforesaid requests made by the
petitioner No.1 on 01.02.2021 and 04.02.2021 and
after referring to the relevant facts and the
provisions of law, rejected both the applications.
The said rejection order dated 5th February, 2021 is
admitted to have been served on the writ petitioner
No.1 on 08.02.2021. After receiving the same, the
petitioner No.1 made further representations dated
09.02.2021 and 13.02.2021 to the Commission. Two
relatives of the deceased filed Special Civil
Application No.4827 of 2021 on 9th of March 2021
praying for appropriate directions being issued to
the Commission to pass on the documents received by
it after November 2021, allow the petitioners to be
examined and crossexamine the witnesses, to stay
further proceedings pending before the Commission and
to restrain the Commission from pronouncing its
report pending admission/final disposal of the
petition. The reliefs as claimed in paragraph 6 of
the petition are reproduced below:
"(A) This Hon'ble Court be pleased to issue
appropriate writ, order or directions and be
pleased to direct the Respondent no.2 to pass
with the document received by it after Nov,2020
and also allow the petitioners to be examined
and crossexamine witnesses in the interest of
justice.
(B) This Hon'ble Court be pleased to order the
pending admission and/or final disposal of this
petition the further proceeding of the
Respondent no.2 be stayed in the interest of
justice;
(C) This Hon'ble Court be pleased to restrain
the Respondent no.2 from pronouncing its report
pending admission and/or final disposal of this
petition;
(D) This Hon'ble Court be pleased to pass such
other and further relief that is just, fit and
expedient in the facts and circumstances of the
case may be granted."
11. The learned Single Judge after hearing the
learned counsels for the parties passed a detailed
interim order dated 19.03.2021 restraining the
Commission from pronouncing its report pending
admission/final disposal of the petition as prayed in
paragraph 6(C) of the petition. Paragraphs 1 to 11 of
the order of the learned Single Judge referred to the
facts and the arguments advanced by the learned
counsels for the respective parties. The discussion
starts from paragraph 12 onwards. The learned Single
Judge made following observations :
(i) The writ petitioners were affected persons
as their close relatives died in the unfortunate
incident. They are also interested persons to
see that the real facts may come on record;
(ii) The observation made by the Commission
that the petitioners were adopting dilatory
tactics was not correct, as summons had been
issued to the writ petitioners by the Commission
requiring their presence on 03.02.2021 and
before the said date, as the petitioners have
made a request to provide copies of all the
documents, it could not be said that the
petitioners are trying to delay the proceedings;
(iii) If they were denied the access to the
record and the same was not made available to
them, they could not effectively assist the
Commission. Further, as the petitioners were not
third party or strangers, they were interested
to see that the respondent No.2 Commission
could find out the correct facts;
(iv) The order dated 12.10.2012 passed by the
Division Bench of this Court in Writ Petition
(PIL) No.216 of 2012 and in view of what had
been stated by the Division Bench in paragraph 5
of its judgment dated 12.10.2012, the writ
petitioners are interested and affected persons
and have a valuable legal right accrued in their
favour;
(v) It referred to a pending petition being
Writ Petition (PIL) No.118 of 2020 which had
covered the concern about the unfortunate fire
incident of 06.08.2020 but held that the relief
prayed in the present petition was different
from the relief prayed in the aforesaid PIL;
(vi) The petitioners had challenged the order
passed by the Commission declining their
requests to provide the documents whereas the
earlier Hon'ble Judge heading the Commission had
provided the copies;
(vii) The petition was maintainable and it
required detailed hearing.
12. Based on the above observations, learned
Single Judge passed the interim order dated
19.03.2021. It is this interim order passed by the
learned Single Judge which is under challenge in the
present appeal.
13. We have heard Shri Kamal Trivedi, learned
Advocate General assisted by Ms.Aishwarya Gupta,
learned Assistant Government Pleader for the State
appellant, Shri Percy Kavina, learned Senior Advocate
assisted by Shri Meet G. Raval, learned counsel
representing respondent Nos.1 and 2 and Ms.Manisha
Lavkumar, learned Senior Advocate assisted by
Shri Ronak Raval, learned counsel for respondent No.3
(Justice Mehta Commission).
14. Rule. Learned Senior Counsels appearing for the
respective parties have in specific terms agreed and
given their consent that the appeal may be finally
heard. Learned Senior Counsels, Shri Kavina and Ms.
Manisha Lavkumar have waived service of notice of
rule upon instructions from their respective
instructing counsels.
15. Before proceeding to deal with the respective
submissions and their analysis, we wish to
incorporate here the list of important dates
submitted by the State duly authenticated and
certified by learned Advocate General to be correct
and accurate chronology of events, as the same would
be relevant for deciding the issues raised in the
appeal. It may be noted that the said list of
important dates as supplied to the Court has been
provided to the learned counsel for the respondents
and apparently, no objection has been given by Shri
Kavina, learned Senior Counsel for respondent Nos.1
and 2 except that serial No.6 wherein no date is
mentioned with regard to which Shri Kamal Trivedi,
learned Advocate General submitted that if required
he could provide the exact date also. However, we
feel that the same would not be relevant considering
the subsequent specific dates being incorporated in
the list of important dates. The same is reproduced
below :
"List of Important Dates of the Appellant State
Sr. Date Particulars Pg. Nos.
No.
1 11.08.2020 State Government in exercise of its 1
powers conferred under Section 3 of (Index of
the Commissions of Inquiry Act, Documents)
1952, issued a notification and
appointed a Commission of Inquiry
consisting of Hon'ble Mr. Justice
K.A. Puj, former Judge of the High
Court of Gujarat, to inquire into
and report within three months from
the date of the said notification
(i.e. by 10.11.2020) in respect of
following terms of reference:
"(a) To inquire into exact sequence
of events leading to the incident
of fire which occurred on
06.08.2020 at Shrey Hospital,
Navrangpura, Ahmedabad and the
causes of the aforesaid incident;
(b) Adequacy of fire safety
measures existing at Shrey Hospital
at the time of incident;
(c) To ascertain whether the said
incidence of fire and the resultant
deaths were the result of
negligence or breach of duty on
part of any one or more authorities
or individuals.
(d) To recommend suitable measures
to prevent recurrence of such
incidents."
2 29.10.2020 Petitioners being relatives of the 853
deceased in the aforesaid incident,
submitted several affidavits dated
20.10.2020 before the Commission.
extension of time limit by the (Index of
learned Commission, the State Documents)
Government issued a notification,
interalia, amending the earlier
notification dated 11.08.2020,
whereby original time limit of
three months came to be extended by
nine months from 11.08.2020 (i.e.
up to 10.05.2021), for the
completion of the inquiry and
submission of the report.
4 27.11.2020 During the course of hearing of Suo 69
Motu Writ Petition (Civil) No.7 of
2020 before the Hon'ble Supreme
Court, taking Suo Motu cognisance
of the incident of fire resulting
in death of 6 COVID patients in
COVID Hospital at Rajkot on
26.11.2020, the Hon'ble Supreme
Court being very critical about the
incident of fire at Shrey Hospital,
Anmedabad, had orally inquired (i)
as to why no progress in the matter
of inquiry had so far been made by
the learned Commission into the
incident of fire at Shrey hospital,
Anmedabed, and (ii) as to why the
State had extended the time limit
by nine months in such extremely
urgent and sensitive matter.
5 03.12.2020 The aforesaid Commission of Inquiry 1/V
issued summons to the concerned
persons including the Petitioners
for appearing and giving oral
evidence on 15.12.2020 at 15:00
hours for putting their say in the
matter, failing which further
actions would be taken in
accordance with law.
6 In view of the aforesaid
development before the Hon'ble
Supreme Court in Suo Motu Writ
Petition (Civil) No.7 of 2020,
learned Member of the Commission,
Hon'ble Mr. Justice K.A.Puj orally
conveyed to the State Government
that he has decided to resign as
the Member of the Commission. In
view thereof, the State Government
informally consulted Hon'ble
Mr.Justice D.A.Mehta, former Judge
of the High Court of Gujarat, to
accept the responsibility of the
aforesaid Commission of Inquiry,
also for Shrey Hospital.
7 09.12.2020 After hearing the parties in the 7681
aforesaid Suo Motu Writ Petition
(Civil) No.7 of 2020 before the
Hon'ble Supreme Court, the Hon'ble
Supreme Court passed the following
order:
"Mr. Tushar Mehta, the learned
Solicitor General submits that with
regard to Fire Safety Audit, a
direction has been issued to all
the States to constitute an
appropriate Committee and
compilation of all data is in
process and shall be filed along
with an affidavit within a period
of three days from today.
He further submits that with regard
to fire at the Covid Hospital,
Rajkot, the Enquiry Committee
chaired by Justice D.A. Mehta has
already been constituted, which is
looking after the aforesaid
incident. He further submits that
fire accident which happened in
Ahmedabad in Shrey Hospital may
also be looked under the
jurisdiction of the same Committee
so that an early report may be
submitted and appropriate measures
may be taken with regard to
hospitals where fire broke
resulting in death of several
patients. It will be open for the
Government to do so by issuing
appropriate notification.
As prayed by the learned Solicitor
General, he may file detailed
affidavit within three days."
(emphasis supplied)
8 10.12.2020 Hon'ble Mr. Justice K.A.Puj
addressed a communication to the
Additional Chief Secretary, Urban
Development and Urban Housing
Department, Gandhinagar, and
requested the State Government to
relieve him from the inquiry of
Shrey Hospital, Ahmedabad, with
immediate effect.
9 11.12.2020 For the purpose of filling up the 74
vacancy arisen due to the
resignation of Hon'ble Mr. Justice
K.A. Puj as the Member of the
Commission of Inquiry, the State
Government issued a notification,
appointing Hon'ble Mr. Justice D.A.
Mehta, former Judge of the High
Court of Gujarat as the Member of
the said Commission to inquire into
the very terms of reference as
contained in the earlier
notification dated 11.08.2020,
within a period of three months
from the date of the said
notification (i.e. by 10.03.2021)
Note:
(i) Pertinently, the aforesaid
reconstitution of the Commission of
Inquiry was neither by way of
replacement nor substitution of the
existing sole member with another
person, but the said reconstitution
was for the purpose of filling the
vacancy having arisen in the office
of the Member of the Commission due
to the resignation of Hon'ble Mr.
Justice K.A.Puj.
(ii) In fact, the aforesaid
notification dated 11.12.2020 has
clearly provided that the same has
been issued in supersession of the
earlier notification dated
11.08.2020 (Sr. No.1).
10 18.12.2020 In the course of further hearing of 8293
the aforesaid Suo Motu Writ
Petition (Civil) No.7 of 2020
before the Hon'ble Supreme Court,
the State of Gujarat submitted the
aforesaid notification appointing
Hon'ble Mr. Justice D.A. Mehta as a
Member of the Commission to
undertake inquiry with regard to
at Shrey Hospital, Ahmedabad.
Pertinently, the Hon'ble Supreme
Court while passing the order in
the aforesaid proceedings,
categorically desired the State to
extend all cooperation to the
Commission, so that inquiry report
may be submitted by the Commission
at an early date and the
appropriate remedial action may be
taken.
11 25.12.2020 Justice D.A. Mehta Commission of 54A
Inquiry issued a public
advertisement, calling upon all the
concerned being interested in the
inquiry in question, to send their
affidavits, statements, documents,
additional affidavits, etc. on or
before 11.01.2021.
12 11.01.2021 In response to the aforesaid public
advertisement, Petitioners did not
submit anything before the
Commission of Inquiry.
13 15.01.2021 Justice D.A. Mehta Commission of 2
Inquiry issued fresh summons to all
the concerned including the
Petitioners to appear before the
Commission on 03.02.2021.
14 03.02.2021 Once again Petitioners chose not to 2
appear before the Commission,
though desired vide fresh summons
dated 15.01.2021.
15 01.02.2021 Instead of honouring the summons 55
and referred to above, Petitioner No.1
04.02.2021 made an application dated
Commission of Inquiry by stating
interalia that he is affected
person in the inquiry in question
wherein he lost his grandfather and
uncle and therefore, it is
requested to provide certified
copies of all the documents and
affidavits filed by various parties
and Petitioner No.1 may be called
on any Monday after a period of
four weeks.
A further request was made by the
Petitioner No.1 to allow him to
visit ICU Unit as well as Shrey
Hospital with his personal
photographer.
16 05.02.2021 Justice D.A. Mehta Commission 1/V6
passed a reasoned order, rejecting
the aforesaid two applications.
17 25.02.2021 State Government issued a further 90
notification amending its earlier
notification dated 11.12.2020,
extending the time limit (i.e.
10.03.2021) for completing the
inquiry and submission of report on
or before 31.03.2021.
18 09.03.2021 Petitioners instituted a captioned
writ petition for challenging the
aforesaid order dated 05.02.2021
before the learned Single Judge.
19 10.03.2021 Justice D.A. Mehta Commission
inquired with the learned Advocate
General about the procedure for
submitting its report, since the
inquiry was over and the report was
being sent for binding.
To the aforesaid inquiry, request
from the learned Advocate General
was to the effect that since the
Assembly was in Session, it would
be better if report may be
submitted by the end of next week
i.e. by 20/21.03.2021.
20 19.03.2021 Learned Single Judge passed the
impugned order and while directing
the issuance of notice by making it
returnable on 05.04.2021 in the
captioned writ petition, granted an
adinterim relief in terms of para
6C restraining Justice D.A. Mehta
Commission of Inquiry from
pronouncing its report, pending
admission and final disposal of the
said writ petition.
16. Shri Percy Kavina, learned Senior Counsel
appearing for the original writ petitioners -
respondent Nos.1 and 2 in the appeal has raised
preliminary objections to the following effect :
• Firstly, the Commission being an independent
agency, the State would not have any locus to
maintain this appeal. The appeal at the instance
of the State is not bonafide and therefore ought
not to be entertained. It is liable to be
dismissed on both the above counts.
• Secondly, it is also submitted that no prejudice
is being caused to the State by the impugned
order and as such also, the appeal is liable to
be dismissed.
• Thirdly, it is submitted that the participation
and conducting of the matter by the State Law
officers on behalf of the Commission are also
not warranted in law and would be clearly
violating the common law concept of an
independent Commission constituted for the
purpose of finding out the truth of the
unfortunate incident in which some officers of
the State or State authorities may be indicted.
• Fourthly, it is submitted that the order passed
by the learned Single Judge being an interim
order and the main writ petition being still
pending before the learned Single Judge, instead
of approaching the Division Bench by way of
appeal, if at all the State or the Commission
was aggrieved, they could have filed a stay
vacation application along with their counter
affidavits. The Letters Patent Appeal against an
interim order as such may not be entertained and
may be dismissed at the threshold.
17. In addition to the above preliminary
objections, Shri Percy Kavina, learned Senior Counsel
also submitted on merits that the learned Single
Judge gave valid reasons for entertaining the writ
petition and passing the interim order as otherwise
the petition itself would have been rendered
infructuous. Shri Kavina has supported the reasons
given by the learned Single Judge as being just,
sound and reasonable and in accordance to law. He has
referred to the various provisions of the 1952 Act.
18. In addition to the above submissions, Shri
Kavina raised a new argument for which he admitted
that no foundation was laid in the petition, but
according to him, as the issue now raised by him goes
to the root of the matter, he had a right to raise it
in appeal also. According to him, the State had no
power to substitute or supplant Justice K.A.Puj, who
was appointed as the One Man Inquiry Commission vide
Notification dated 11.08.2020 by Justice D.A.Mehta
vide subsequent Notification dated 11.12.2020.
According to Shri Kavina, a retired Judge of the High
Court ought not to have been replaced at the whims
and fancies of the State Government by another
retired Judge of the High Court for no reason. Shri
Kavina has placed strong reliance upon a judgment of
the Supreme Court in the case of State of Madhya
Pradesh vs. Ajay Singh and others, reported in
(1993)1 SCC 302. Shri Kavina has drawn our attention
to the relevant paragraphs of the said judgment for
two purposes. Firstly that the member of the
Commission could not be replaced, substituted or
supplanted at the whims and fancies of the State and
secondly that the Commission appointed under the 1952
Act was an independent agency and its independence
ought to be respected and could not be compromised.
19. Shri Kamal Trivedi, learned Advocate General
on behalf of the appellant the State of Gujarat,
submitted that the learned Single Judge had gravely
erred in not appreciating the status and nature of
the Commission constituted under the 1952 Act. The
Commission is a fact finding body constituted to
examine the facts relating to the unfortunate
incident which occurred on the 6th of August, 2020,
as per the terms of reference.
20. It was further submitted by the learned
Advocate General that the Commission is required to
make an enquiry and perform its functions according
to the terms of reference. It is neither adversarial
nor adjudicatory. It does not decide any dispute but
gives its opinion about the matter under reference to
the concerned Government, which again may or may not
be accepted by the Government. There is neither any
accuser nor an accused. The whole purpose of
constituting a Commission is to enable the State
Government to gather facts. In one sense, it is a
legal friend of the State. It is not required to
adjudicate upon the rights of the parties and it has
no adjudicatory functions. There is no lis involved.
The report of the Commission is recommendatory in
nature.
21. Shri Trivedi further submitted that the
petitioners by virtue of two communications dated
01.02.2021 and 04.02.2021 were seeking certified
copies of the entire material collected by the
Commission during enquiry, to examine the same in the
next four weeks and thereafter decide on the further
course of action. The petitioners had also sought
permission to visit the concerned hospital (which was
sealed by the Corporation) with a private
photographer to carry out their personal
investigation. Considering the nature and status of
the Commission, this clearly was impermissible. It is
an inquiry to elicit facts and examine the cause of
the incident, not meant for the purpose of furnishing
information to the applicants collected in
confidentiality. The pleas of the respondent Nos.1
and 2 for being served with the statements, documents
and crossexaminations undertaken by the respondent
Commission, run counter to the object of the inquiry
and the provisions of the law. The Commission was
thus correct in facts and in law in rejecting the two
applications.
22. Further submission on behalf of the State is
to the effect that the right of crossexamination as
sought for by the petitioners, does not flow from any
statutory provision. Sections 8B and 8C of the 1952
Act postulate the persons likely to be prejudicially
affected being conferred with the right to being
heard and the right of crossexamination being
conferred on such persons. Section 8B of the 1952 Act
refers to only such persons (i) whose conduct the
Commission considers necessary to inquiry into during
the course of inquiry and (ii) whose reputation is
likely to be prejudicially affected by the inquiry.
The learned Single Judge failed to appreciate that no
summons were issued to respondent Nos.1 and 2 under
Section 8B of 1952 Act and that the respondent Nos.1
and 2 could not, as a matter of right, claim to
crossexamine witnesses or be examined.
23. It is further submitted that Section 8C of
the 1952 Act confers the right of crossexamination on
the following three categories: (i) the appropriate
government, (ii) every person referred to under
Section 8B and (iii) with the permission of the
Commission, any person whose evidence is recorded by
the Commission.
24. It was submitted by the learned Advocate
General that the petitioners are not falling under
Section 8C of the 1952 Act. Neither are they persons
whose evidence is recorded by the Commission. Those
who are not likely to be prejudicially affected cannot
be said to have any right to crossexamine any
witness. Further such permission can normally be
granted under Section 8C of the 1952 Act to only such
person whose reputation is likely to be affected by
the report of the inquiry, a person whose conduct is
under scrutiny, or one who is prejudicially affected
by the deposition of a witness called upon by the
Commission to depose. The right of crossexamination
under the 1952 Act is narrowly circumscribed. Not
every witness who has chosen to depose before the
Commission is conferred with the right of cross
examination. The proceedings of the Commission have to
be controlled by the Commission and the petitioners
whose rights are admittedly not likely to be
prejudicially affected by the report of the Commission
cannot be permitted to cross examine whoever and
whenever. Persons "affected" are not necessarily
persons whose conduct is being examined or that they
are being prejudicially affected.
25. Shri Trivedi further submitted that the
learned Single Judge failed to take cognizance of the
submission that in an earlier petition being Special
Civil Application No.14157 of 2020 pending before a
Division Bench, specific prayers have been made in
connection with the permission to conduct a third
party survey of Shrey Hospital, by the relatives of
the victims. The said prayer is reproduced hereunder:
"...(N) That pending the hearing and final
disposal of the present Petition, this Hon'ble
Court be pleased to permit the relatives of the
victims of Shrey Hospital Fire mishap to conduct
a thirdparty survey of the ICCU Ward through a
team consisting of retired fire safety
officials."
26. The Hon'ble Division Bench dealing with
Writ Petition (PIL) No.118 of 2020 and Special Civil
Application No.14157 of 2020, specifically passed
directions in its order dated 26.02.2021, not to
remove or open the seals applied at the premises of
the Shrey Hospital. The Hon'ble Court directed as
under:
"(G) The Ahmedabad Municipal Corporation is
directed not to remove or open the seals applied
at the premises of the Shrey Hospital without
the permission of this Court and shall not
permit the Management to once again start with
the functioning of the Hospital without the
permission of this Court."
27. The order passed by the Hon'ble Division
Bench in Writ Petition (PIL) No.118 of 2020 and
Special Civil Application No.14157 of 2020 on
26.02.2021, records the specific submission made by
the petitioners therein regarding the nonsupply of
documents by the respondent Commission. The said
submission has been recorded in para 14 of the order
dated 26.02.2021 as under:
"14) Mr. Marshall has a very serious grievance
to redress against the Commission appointed by
the State Government under the Commission of
Enquiries Act, 1952 to probe into the
unfortunate incident that occurred at the Shrey
Hospital. According to Mr. Marshall, the family
members of the victims have been requesting to
provide them with certain papers but the
Commission, so far, has not thought fit to look
into the matter or entertain the request made by
the family members of the victims. Mr. Marshall
prays that appropriate directions be issued in
this regard."
Shri Trivedi submitted that despite the
aforesaid request, the Division Bench did not accept
the same nor passed any orders thereon.
28. It was also submitted by the learned Advocate
General that propriety demanded the learned Single
Judge to have taken into consideration the pendency
of the subject matter of the said proceedings before
the Division Bench of this Court and despite a
specific contention having been raised by the
petitioners of Special Civil Application No.14157 of
2020 which is identical to the subject matter of the
present proceedings and a Division Bench was dealing
with the same along with Writ Petition (PIL) No.118
of 2020, the learned Single Judge did not accede to
such contention and wrongly held that the cause
espoused in the present petition is materially
different.
29. It was submitted by the learned Advocate
General that as discernible from the chronology of
events during the course of hearing of Suo Motu Writ
Petition (Civil) No.7 of 2020 before the Hon'ble
Supreme Court, taking Suo Motu cognizance of the
incident of fire resulting in the death of 6 COVID
patients in Covid Hospital at Rajkot on 27.11.2020.
The Hon'ble Supreme Court was very critical about the
incident of fire at Shrey Hospital, Ahmedabad and had
inquired (i) as to why no progress in the matter of
inquiry had so far been made by the learned
Commission into the incident of fire at Shrey
hospital, Ahmedabad and (ii) as to why the State had
extended the time limit by nine months in such
extremely urgent and sensitive matter.
30. In view of the aforesaid development before
the Hon'ble Supreme Court in Suo Motu Writ Petition
(Civil) No.7 of 2020, learned Member of the
Commission, Hon'ble Mr. Justice K.A.Puj orally
conveyed to the State Government that he has decided
to resign as the Member of the Commission. In view
thereof, the State Government informally consulted
Hon'ble Mr. Justice D.A.Mehta, former Judge of the
High Court of Gujarat, to accept the responsibility
of the aforesaid Commission of Inquiry, also for
Shrey Hospital.
31. On 09.12.2020, after hearing the parties in
the aforesaid Suo Motu Writ Petition (Civil) No.7 of
2020, the Hon'ble Supreme Court passed the following
order:
"Mr. Tushar Mehta, the learned Solicitor General
submits that with regard to Fire Safety Audit, a
direction has been issued to all the States to
constitute an appropriate Committee and
compilation of all data is in process and shall
be filed along with an affidavit within a period
of three days from today.
He further submits that with regard to fire at
the Covid Hospital, Rajkot, the Enquiry
Committee chaired by justice D.A.Mehta has
already been constituted, which is looking
after the aforesaid incident. He further submits
that fire accident which happened in Ahmedabad
in Shrey Hospital may also be looked under the
jurisdiction of the same Committee so that an
early report may be submitted and appropriate
measures may be taken with regard to hospitals
where fire broke resulting in death of several
patients. It will be open for the Government to
do so by issuing appropriate notification.
As prayed by the learned Advocate General, he
may file detailed affidavit within three days."
(emphasis supplied)
32. Shri Trivedi, learned Advocate General further
submitted that pertinently, Hon'ble Justice K.A.Puj,
addressed a communication to the State Government on
10.12.2020, expressing his inability to continue with
the Commission. In view of the resignation of the
Hon'ble Member, the Commission was reconstituted vide
Notification dated 11.12.2020 appointing Hon'ble
Justice D.A.Mehta to complete the inquiry within 3
months. The said period was extended by another three
weeks to conclude by the 31st of March, 2021.
Pertinently, the aforesaid reconstitution of the
Commission of Inquiry was neither by way of
replacement nor substitution of the existing sole
member with another person, but the said
reconstitution was for the purpose of filling up the
vacancy having arisen in the office of the Member of
the Commission due to the resignation of Hon'ble
Justice K.A.Puj.
33. In rejoinder, Shri Kavina, learned Senior
Counsel appearing for the original writ petitioners,
respondent Nos.1 and 2 in the appeal mostly
reiterated his earlier submissions. However, insofar
as the issue relating to invalidity of the
notification dated 11.12.2020 is concerned, Shri
Kavina submitted that in fact the State has very
conveniently avoided to give the date of the facts
mentioned at Sr.No.6 of the list of important dates.
He further submitted that it appears that the
decision was already taken to replace Justice K.A.Puj
by Justice D.A.Mehta as would be apparent from the
order of the Supreme Court dated 09.12.2020. He
further submitted that the subsequent notification
dated 11.12.2020 appointing Justice D.A.Mehta as a
One Man Commission was in fact a
substitution/replacement of Justice K.A.Puj and in
order to justify notification dated 11.12.2020, the
State Government compelled Justice K.A.Puj to tender
his resignation. Shri Kamal Trivedi, learned Advocate
General submitted that the submission of Shri Kavina
is totally baseless. He has himself been a part of
the entire developments that have taken place after
the order of the Supreme Court dated 27.11.2020. The
State had asked for his assistance in making a
dialogue both with Justice K.A.Puj once he expressed
his desire to resign from the Commission and further
to convince Justice D.A.Mehta to take up this inquiry
also. We may only record here that such statement
coming from the learned Advocate General has to be
given due credibility and needs to be accepted.
34. We now proceed to deal with the respective
arguments advanced by Shri Kavina as preliminary
objections and thereafter we will deal with the other
objections and issues.
Maintainability of appeal at the instance of the
State :
(a) A Commission appointed under Section 3(1) of
the 1952 Act is 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. This is exactly the
language used in Section 3(1) of the 1952 Act.
In the present case Justice Mehta Commission
was appointed vide Notification dated
11.12.2020 to inquire into the unfortunate
incident at the Shrey Hospital as per the terms
of reference and submit its report within 3
months from the date of the said notification.
Meaning thereby the report was to be submitted
on or before 10.03.2021. This term of 3 months
was further extended vide Notification dated
25.02.2021 upto 31.03.2021.
(b) Our attention was drawn by Shri Trivedi,
learned Advocate General to the proceedings
before the Supreme Court in Suo Motu Writ
Petition (Civil) No.7 of 2020. The specific
reference was made to the orders dated
27.11.2020, 09.12.2020 and 18.12.2020.
(c) The Supreme Court in the hearing dated
27.11.2020 had expressed its displeasure as to
why no progress in the matter of inquiry with
regard to the incident of fire at Shrey
Hospital had been made so far by the Commission
and further as to why the State had extended
the time limit by 9 months in such an extremely
urgent and sensitive matter. Further in the
proceedings dated 18.12.2020, the Supreme Court
had very clearly directed the State to extend
all cooperation to the Commission so that the
inquiry report may be submitted by the
Commission at an early date whereupon
appropriate measures may be taken by the State
based on the recommendations that may be made
by the Commission.
(d) In the above background, we find force in the
submission of Shri Trivedi that it is the State
which is under an obligation and also under
direct supervision of the Supreme Court to
ensure that the Commission gets complete
cooperation and further that the report is
submitted at the earliest and the State
proceeds to act upon it.
(e) Law is wellsettled that an Inquiry Commission
constituted under the 1952 Act is neither
adversarial nor does it determine the lis or
rights of any of the parties. It is only a
factfinding machinery given a statutory
status. The Commission is constituted for the
purpose of assisting the State to find out the
truth and also based upon its recommendations
to take appropriate action, be it remedial,
coercive or of whatever nature as may be
necessary. If at the fag end of the term of the
Commission which was only upto 31.03.2021, an
injunction is granted on 19.03.2021 restraining
the Commission from submitting the report, the
very purpose of not only the 1952 Act requiring
the Commission to submit the report within the
timeframe allowed to it would be frustrated
but also would be in the teeth of the
observations made by the Supreme Court. The
State would be held accountable for that and in
such circumstances, it would be the State and
State alone which could take up the cause of
the Commission where the Commission has already
completed the inquiry and prepared the report.
It was only required to submit the same.
(f) There is one more reason why the appeal would
be maintainable at the instance of the State as
it being a directly affected party. The powers
under Section 3(1) of the 1952 Act have been
invoked by the State Government. The
notification dated 11.12.2020 allowed three
months' time to Justice Mehta Commission to
submit its report. Thereafter, vide
notification dated 25.02.2021, the term of
Justice Mehta Commission was extended upto
31.03.2021 and submit its report on or before
the said date. If the State did not challenge
the order of the learned Single Judge and as
the learned Single Judge has already fixed 5th
April 2021 as the returnable date in the
petition, the State would have to issue a
further notification extending the term of
Justice Mehta Commission. The State was already
taken to task by the Supreme Court as stated by
the learned Advocate General and also apparent
from the records. The State would be answerable
to the Supreme Court in case it did not file
the appeal immediately and to press it by
requesting for priority considering the time
frame.
(g) For all the reasons recorded above, we do not
find any substance in the submission of Shri
Kavina that the appeal would not be
maintainable at the instance of the State.
Objection relating to the appearance of State Law
Officers for the Commission :
(h) The next contention of Shri Kavina, learned
Senior Counsel is that designated Senior
Advocates who are also Law Officers
representing the cause of the State cannot
defend the impugned order of the Commission as
it would amount to taking away of the
independence of the Commission, inquiring into
the cause of fire, in a private Covid19
dedicated hospital. The inherent fallacy in the
argument lies in the fact that it is not a
Government Law Officer but designated Senior
Advocate who has represented the Commission.
Clearly there is no conflict of interest nor
does there exist any such bar. A Commission
headed by a Former Senior Judge of the High
Court if represented by a Senior Advocate
cannot be presumed to be easily influenceable.
Merely because a State Law Officer who is also
a designated Senior Advocate represents the
Commission as a Senior Counsel, would not in
any way be in conflict with the independent
status of the Commission. The Commission is
nothing but an extended limb of the Government
to assist the Government in finding out the
truth of an incident having wider public
importance or ramifications. The Commission
notified under the Act does not function on the
faith reposed by the petitioners seeking to
derive material from the Commission to suit
their own ends. This objection therefore fails.
Order of learned Single Judge being interim in
nature appeal may not be entertained :
(i) There is no bar or prohibition that a Letters
Patent Appeal cannot be entertained against an
interim order. It all depends on the facts and
circumstances of each case. It is true that
generally the appeal may not be entertained
against an interim order and the parties may be
relegated to the learned Single Judge for the
final adjudication on the merits of the matter
or on stay vacation application or a
modification application as the case may be or
an application under Article 226(3) of the
Constitution. However, in given cases where the
learned Single Judge may have committed serious
illegality or where the observation or finding
recorded by the learned Single Judge may have
the effect of determining the lis or the rights
of the parties or where serious injury is
likely to be caused to any of the parties or
where an interim order is passed in a petition
otherwise not maintainable, an appeal can
always be entertained. In the present case, the
learned Single Judge not only committed serious
illegality but also prima facie decided the
status of the parties. We thus reject this
preliminary submission.
Notification dated 11.12.2020 being invalid :
(a) The petitioners have at no stage challenged the
reconstitution of the Commission of Inquiry
vide Notification dated 11.12.2020. There is no
such prayer prayed for in the petition. In view
of the reconstitution of the Commission being
entrusted to the same Hon'ble Judge, entrusted
with the inquiry in another fire incident in a
Covid Hospital at Rajkot, it cannot be
contended as sought to, by the counsel for the
petitioners that the State Government
"replaced" the existing sole member. On the
face of it, these allegations are devoid of any
merit. Noticeably the events referred to
hereinabove were brought to the notice of the
Hon'ble Supreme Court in Suo Motu Writ Petition
(Civil) No.7 of 2020, a matter still pending
before the Hon'ble Supreme Court. Every
development as regards the constitution and
working of the Commission has been placed on
record.
(b) This argument of Shri Kavina raised on behalf of
the petitioners, if could be supported by facts,
may be would have some substance in the light of
the judgment of the Supreme Court in the case of
State of Madhya Pradesh vs. Ajay Singh (supra).
However, unfortunately no foundation whatsoever
on facts or law has been laid down in the
petition. On the contrary, the facts as narrated
by the learned Advocate General and also
provided by way of a written list of important
dates of the appellant State, a copy of which
has been provided to learned Senior Counsel Shri
Kavina also, clearly mention that it was in fact
not replacement of Justice K.A.Puj by Justice
D.A.Mehta, but it was on account of a vacancy
having arisen that the State had to issue a
fresh notification appointing Justice D.A.Mehta,
retired Judge of the Gujarat High Court, in
supersession of the earlier notification
appointing Justice K.A.Puj as the One Man
Commission. The Notification dated 11.12.2020
nowhere mentions replacement of Justice K.A.Puj
by Justice D.A.Mehta, but it clearly mentions
that in supersession of the earlier Notification
dated 11.08.2020, the State Government exercised
powers under Section 3(1) of the 1952 Act to
appoint Justice Mehta, the terms of reference
being the same and being again reproduced in the
subsequent Notification dated 11.12.2020. Thus,
the judgment in the case of State of Madhya
Pradesh vs. Ajay Singh (supra) for the above
proposition would have no application in the
facts of the present case. This submission also
therefore fails in the facts of the case.
35. Merits of the order of the learned Single Judge:
There is no denying the fact that the learned
Single Judge while exercising extraordinary
jurisdiction has the power to pass an interim order,
whatever be the nature of the order. The first and
foremost principle of passing an interim order is as
to whether the three basic ingredients required for
passing a restraint order or an injunction are
existing or not, namely, primafacie case, balance of
convenience and irreparable loss. These are the three
ingredients which need to be scrutinized and examined
by a Court before granting an order of injunction. In
the present case, the injunction granted is
restraining Justice Mehta Commission from submitting
its report. The learned Single Judge failed to record
findings on the above three basic ingredients.
36. For the State as also the Commission, it is
a race against time. In matters of such statutory
public inquiries, time is the essence. Both the State
Government as also the Commission were under the
scanner of the Supreme Court in Suo Motu Writ
Petition (PIL) No.7 of 2020 to ensure that the report
is submitted in time and at the earliest. The time
was to expire on 31.03.2021. The Commission had
rejected the applications of the writ petitioners
dated 01.02.2021 and 04.02.2021 on 05.02.2021 and the
said order of the Commission was communicated to the
petitioners on 08.02.2021. The petitioners waited for
a month before they presented the petition on 9th
March 2021. The report was already ready as stated
by Shri Trivedi, learned Advocate General. The
learned Single Judge at such a stage ought not to
have passed an injunction at the last hour when the
inquiry was already complete and the report of the
Commission was ready and hardly ten to twelve days
were left for the term of the Commission to end.
37. The observations of the learned Single Judge
on the order of the Commission that the applications
moved by the writ petitioners were to delay the
inquiry and was in fact dilatory tactics being
adopted by them to be incorrect also cannot be
sustained inasmuch as the petitioners not only asked
for the complete set of papers from the Commission
but also demanded four weeks' time for them to
examine the papers and thereafter to decide further
course of action and submit their case before the
Commission which means that after supplying the
documents in whatever bulk it was, the Commission
would have waited for four weeks when the time itself
was running out and was due to expire on 10.03.2021
on the date the applications were made. Thus, the
Commission would still be lingering and struggling to
receive the response from the petitioners even at the
time when its term was to expire. The term of the
Commission was extended much later upto 31.03.2021
vide notification dated 25.02.2021.
38. We are not deliberating upon the issue as to
whether the writ petitioners would fall within any of
the categories mentioned in Section 8(B) or Section
8(C) of the 1952 Act, although the learned Senior
Counsels for the parties not only referred to the
statutory provisions but also to the relevant case
laws. However, we are not entering into this issue
for the reason that the writ petition is still
pending before the learned Single Judge where the
status of the petitioners would ultimately be
determined. Even if the petitioners had any right
available to them, they could have challenged the
report of the Commission in appropriate proceedings
at an appropriate stage, if permissible in law. But
they preferred to stall the Commission from
proceeding further and by injuncting the Commission
from submitting its report would be causing
obstruction in the entire process at an interim stage
which is otherwise not permissible in law when
admittedly the petitioners do not fall in any of the
two categories of Section 8B of the 1952 Act. Merely
because the petition was maintainable and required
lengthy hearing would not automatically invite an
interim order. Passing of an interim order and that
too in case of such a sensitive nature at the fag end
of the term of the Commission, would not be in the
public interest.
39. The learned Single Judge ought to have
considered that a Division Bench hearing a Writ
Petition (PIL) No.118 of 2020 and a connected Special
Civil Application No.14157 of 2020 details of which
we have already referred to above and also find place
in the order of the learned Single Judge, dealing
with similar issue of providing the material and also
inspection of the Shrey Hospital, being seized of the
matter, the learned Single Judge ought not to have
overreached the said proceedings by restraining the
Commission from submitting the report.
40. The petitioners' rights were not being
adjudicated by the Commission. The Commission was
inquiring into the sequence of events leading to the
event of fire at the Shrey Hospital; the adequacy of
the fire safety measures at the hospital; to find out
the negligence or breach of duty on part of any one
or more authorities or individuals and to recommend
suitable measures. No loss was to be suffered by the
petitioners on submission of the said report. All
other rights of the petitioners with respect to the
loss of lives of their relatives are still available
to them.
41. The learned Single Judge has placed
reliance upon the observations made by the Division
Bench in its order dated 12.10.2012 passed in Writ
Petition (PIL) No.216 of 2012 and has reproduced
paragraph 5 thereof. It was the submission of Mr.
Trivedi that facts of the said case were quite
different and distinct and the observations made by
the Division Bench in its order dated 12.10.2012
would have no application to the facts of the present
case. It is to be noted that the said Commission of
Inquiry in the Writ Petition (PIL) No.216 of 2012 was
with respect to the conduct of an IPS Officer and the
said IPS Officer was writ petitioner in the said PIL
and, therefore, he was squarely covered by Section
8(B) of the 1952 Act and in such circumstances, the
Division Bench allowed and required the Commission to
provide him the records to defend himself. However,
in the present case, the writ petitioners' conduct
was neither being inquired into nor their reputation
would be prejudicially affected by the inquiry. Thus
also, the learned Single Judge erred in relying upon
the said observations made in paragraph 5 of the
order of the Division Bench dated 12.10.2012.
Deriving the analogy of interested and affected
persons from the aforesaid observations was prima
facie not justified. We neither find any primafacie
case nor balance of convenience nor irreparable loss
in favour of the petitioners which would have
warranted passing of the injunction order.
42. In view of the above, we are satisfied that
the learned Single Judge fell in error in passing the
injunction order. Accordingly, the appeal is allowed.
The order of the learned Single Judge dated
19.03.2021 insofar as it grants interim relief in
terms of paragraph 6(C) of the petition, is set
aside. The Commission would be free to proceed to
submit the report. Rule is made absolute. The parties
would be free to get their rights adjudicated before
the learned Single Judge. Consequently, the connected
Civil Application stands disposed of.
43. Shri Percy Kavina, learned Senior Counsel
at the time of conclusion of the hearing on 25th
March, 2021 had made a request that in the event of
there being a likelihood of the appeal being allowed,
the interim order granted by the learned Single Judge
be extended for a period of four weeks to enable the
writ petitioners to avail further remedy. Considering
the facts and circumstances of the case and for the
reasons recorded in the order, we are not inclined to
accept such request of Shri Kavina, learned Senior
Counsel.
(VIKRAM NATH, CJ)
(BHARGAV D. KARIA, J)
GAURAV J THAKER/RADHAN
