A Critique of 1999 (2) KLT 699John V. George Jacob

(By P.S. Leela Krishnan, Advocate, Quilandy)

While interpreting Negotiable Instruments Act 1881 S.138 Proviso (b) in the above case Hon'ble Justice K.A. Mohammed Shafi is very much off the mark both in giving the correct dictionary meaning of the word 'receipt' and in its proper interpretation.

In short the revision centered round the interpretation given to proviso (b) which reads like this: (b) "the payee or the holder in due course of the cheque as the case may be makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque, within fifteen days of receipt of information by him from the Bank regarding the return of the Cheque as unpaid."

His Lordship after discussing the dictionary meaning of the word receipt says in para 11 "From the context, at which expression 'receipt of information used' in Proviso (b) to S.138.....it is clear that what the Legislature intended is a receipt of information in writing and not a mere oral information though the words in writing do not find in that proviso at the context." Further His Lordship unnecessarily fears "if notice as stipulated in Proviso (b) to S.138 is issued on wrong information regarding the dishonour of the cheque, it will lead to several disasterous consequences."

According to me the word 'receipt' is given an ungrammatical interpretation contrary to the natural construction of the sentence. The receipt of information means on receiving information. The receipt is used there as the noun form of receive and not as the independent noun receipt meaning of which His Lordship took pains in finding in the Concise Oxford Dictionary, Black's Law Dictionary etc. Receipt here means according to major dictionaries: act of receiving or being received, acknowledge receipt of a letter, an order etc. on receipt of news he left.

Maxwell on the Interpretation of Statutes says. The first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning if they have acquired one, and otherwise in their ordinary meaning and second is that the phrases and sentences are to be construed according to the rules of grammar. The rule of construction is to intend theLegislature to have meant what they have actually expressed.....it is well accepted thatthe beliefs and assumptions of those who frame Act of Parliament cannot make the law.

So much so the meaning attributed to 'receipt' is out of context and ungrammatical. Receipt of information, there means only receiving information, immaterial whether oral or in black and white.

Here in the above case the payee got information of the dishonour of the Cheque on 20.12.1989 when he went to the Bank. But receives written information of the dishonour only on 6.1.1990 at his convenience. If that is what is meant by the Legislature, parties can take legal measures according to their convenience. Law does not allow such leisurely attitudes on the part of litigants. They must be vigil ant. In these circumstances I do not think 1999 (2) KLT 699 will remain good law for long.

Auction Purchaser at Peril

(By V.K. Sathyavan Nair, Advocate, Kottayam)

It is submitted that 1999 (1) KLT 278 Ayyappa v. Ananda requires reconsideration.

The proposition laid down by the Court mat the auction purchaser is bound to prove that the disputed property belonged to and was in the exclusive possession of the Judgment debtor is a deviation from the accepted rule hitherto followed in die proceedings deciding matters connected with obstruction to delivery of property.

The Court seems to have not taken note of the scope, object and purpose of amendment of the general scheme of rules 97 to 103 of Order XXI in order to clothe the Execution Court with jurisdiction to determine all questions including questions relating to right, title or interest in the property.

There was a conflict of decision on the point whether a claim for possession by a purchaser in Court auction i n pursuance of execution of a decree is or is not a question relating to the execution of decree. It was set at rest by amending S.47 by C.P.C. (Amendment) Act, 1976. The amendment seeks to make it clear that such a question is a question falling under the section. Consequentially the relevant rules of 0.21 were also amended. Previously the execution court can pass only a summary order in matters of claim and obstruction. As per R.103 of O.XXI as it stood before amendment the Summary order is conclusive subject to the result of a regular suit by the defeated person. So the party against whom an adverse order is passed is driven to file a fresh suit It would cause delay and hardships. In order to avoid unnecessary delay and protracted proceedings the execution court has been given a wider jurisdiction in terms of amended S.47. Now the execution court itself has the jurisdiction to decide questions of title, right and interest of the parties. There can be not doubt, as observed by the Court, that the execution court is required to go into the question of right, title and interest in the property not only of the claimants, but of the judgment debator or auction purchaser also. But that does not mean that the burden of proof is on the auction purchaser.

By any stretch of imagination it cannot be argued that C.P.C. (Amendment) Act 1976 has shifted the burden of proof. The main feature of the amendment is conferring wider jurisdiction on the execution court to decide matters regarding right, title and interest. The amendment does not in any way indicate any change of law regarding burden of proof. The accepted position is that is for the obstructor to prove his entitlement to possession. A relevant passage from Sreenath v. Bajesh JT 1998 (3) SC 244 is extracted below.

"So under O.XXIR.101 all disputes between the decree holder and any such person is to be adjudicated by the Executing Court. A party is not thrown out to relegate itself to the long drawn out arduous procedure of a fresh suit. This is to salvage the possible hardship both to the decree holder and other person claiming title on their own right to get it adjudicated in thevery execution proceedings.......After investigation under R. 98 the Court puts back a decree holderin possession where the Court finds obstruction was occasioned without just cause, while under R. 99 where obstruction was by a person claims in good faith to be in possession of the property on his own right."

In a suit O.XXIR.103 C.P.C. (before amendment) the Plaintiff must prove not only that he was in possession when he obstructed the defendant (auction purchaser) but he must also establish the right which he claims to the present possession of the property. If he succeeds in doing so, his dispossession during the pendency of the suit does not matter. If his right is proved, then the order of removal of Plaintiff s obstruction must be set aside and the status quo, as at the date of that order, must be restored, that is to say the plaintiff must be put back into possession (See AIR 1939 Bom. 508 and other cases). The obstructor has to begin and lead evidence to prove his right. The observation of our High Court that the auction purchaser cannot take advantage of the weaknesses of the claimant's case alone appears to be not a correct approach in proceedings under R.99.

The Applicant has to prove that he was in possession and was dispossessed in the course of delivery of possession to the decree holder or purchaser. The onus lies upon him to prove his right to possession and it is a serious irregularity to ask the decree holder or auction purchaser to begin (AIR 1931 Mad. 534).

It is submitted that even after amendment in 1976 there is no change of law regarding burden of proof in proceedings relating to obstruction to delivery of property and 1999 (1) KLT 278 places the auction purchasers at their peril.

The Dawn of the New Millennium

(By Siby Mathew, Advocate, Chief Editor, Kerala Law Times)

The 'New Millennium' or the New Year '2000' which everybody was awaiting for is here, 1999 has passed over with Economic Sanctions by developed countries, Parliamentary elections, Kargil, super cyclones and other turmoils. Present day Social Structure is experiencing the impact of dynamic and galvanic forces with the emergence of so called transitory and progressive programmes and plans. Familiar and time honoured ideas, theories and institutions are thrust into their places making India progress faster in the new Millennium. After effects of the economic sanctions, short Kargil Intrusions and super cyclone in Orissa hasn't retarded the progress of India. Redeeming feature is that 'India' stood as one and helped each other due to the spirit of tolerance and forbearance of the people of India. In the wake of socio-economic changes of the modern times, Judges and lawyers who have been respected and recognised as custodians of civilization have now a challenging and essential role to play in guiding the nation in the new Millennium.

Dawn of Independence was a tryst with destiny with our freedom fighters. Birth of the Constitution was a dream coming true for whom freedom was fought, as repression by British rulers led our people to cherish a desire to have a polity, where this would not happen, and Art.21 having stated: "No person shall be deprived of his life or personal liberty except according to procedure established by law", people of free India felt assured that days of repression were over - their lives and liberties would no longer be play-things of the rulers, and their co-citizens who would rule them henceforth would, in all strictness and situations, be able to take their lives and deprive them of the liberties only in accordance with the procedure permitted by law.

As free India moved forward, it was realised by the conscience-keepers of the nation that Art.21 has many promises to keep, and they sat down to work as custodians of the fundamental rights of the people to see how best the sharpest point of the trident built of Arts.20, 21 and 22, or the apex point of the golden triangle formed by Arts.14, 19 and 21, could be used to save the lives and liberties of persons residing in India from executive excess and how best they can enjoy dignified lives.

We are living today in a very difficult world. It is also not a safe world. We have to rely upon our own unity and strength. But as we look around us we find disunity growing, an increasing sense of disloyalty to our own cause. We hardly seem to realise that we have a destiny ahead of us which is greater than our great past. As a result power is changing hands so rapidly that there is no stability in political life. We are moving erratically, swayed to this side and mat. The Ship of State to be able to make a swift and steady journey to its destination needs to be kept on an even keel and its crew must know how to steer a true course. We seem to ignore the Constitution which must be our compass and instead of fixing our course by that compass we wish to fix the compass to the course.

In the great task of administering justice, the Bar and the Bench are complimentary and interdependent and share the common mission of securing justice to every citizen in the country and of creating a just society midst us. The Advocate pleads for right and against injustice. The Judge fulfills himself in the quest for truth and justice. Together the divine duet of doing justice is played.

In India, today Judges have not merely to adjudicate on rights and wrongs, but have to be sentinals on the qui vive. They face newer challenges, shoulder a vast range of responsibilities in upholding the constitution and the laws. For, Justice is an ampler, truine concept and the Rule of Law a more positive and dynamic idea with socio­economic content and political overtones not implied in them by orthodox jurists. Even Judges are not only deciding cases, as was said of Shelley, pose as beautiful angels, beating in the void their luminious wings in vain. The social goals enshrined in the Preamble to our Constitution, the Fundamental Rights chapter and the Directive Principles of State Policy broadly and vaguely project our current legal philosophy. The judicial organ being part of the State shares the national objective and perspective of political and economic democracy and spells out from the Articles of the Constitution and the Corpus juris of India, the legal framework of a secular society with egalitarian urges, thus departing from the old order and conservative common law concepts. The Judges and the Courts are in a sense, themselves on trial. The forensic institutions and the legal system itself need a new orientation, a modern grammar and vocabulary and simpler techniques of social engineering, if they are not to be accused of exotic expensive, obsolescent and tardy features, Judges should be sensitive to the demanding nature of the judicial process, which strikes at social evils, legislative transgressions and quasi judicial injustices. The magnitude of the danger to the Rule of Law is great in these days of self-righteous violence and mass violation of law where rioting is confused with revolution and organized disregard of law is considered the route to a higher form of democracy. An eye-for-an-eye as a means of Justice leaves Justice and everyone else blind in the end. This is inhuman. If law runs counter to life, you had better change the law, not challenge it. If the constitution hampers progress, you must amend it, not defy it nor deny it. That is the principle of democratic legality.

The lawyer is certainly the champion of his client,- and what client needs not a champion? But he is more than that. He is also a servitor in the Temple of Justice. There is nothing, no science or art, more concerned with human affairs than the law, and that is why an Advocate when devoting his life to the law should as enjoined by Lord Birkett, enlarge the sweep of his vision beyond the purely legal world, so that nothing that is human, or indeed, nothing that affects humanity should be to him common or unclean or unknown. He should also remember the words of Lord Kilmuir that the law to which he consecrates his life is not a venerable antique to betaken down, dusted, admired and put back on the shelf but an old and still vigorous tree firmly rooted in history, putting out new shoots, taking new grafts and from time to time dropping dead wood.

Justice cannot exist without the Law, and the law will not subsist without the Lawyer. And if the world is to continue to have men who, in the words of Justice Homer can live greatly in the law, drink the bitter cup of heroism and wear their hearts out after the unattainable, we must preserve the means of charging men with the spirit of our profession.

Law marches on and on with solemnity and dignity unaffected by controversies and conflicts and Kerala Law Times now enters the 51st year of Publication. We are fully aware that despite our limitations and short comings it was the generous support, valuable co-operation and cordial encouragement extended to us by the entire legal profession that enabled us to grow from progress to progress, from strength to strength and from size to size and we record our heartfelt sincere feelings of gratitude to one and all and request them to continue to extend the same support in future. Our good wishes for a blessed new Millennium. May it bring happiness, prosperity and good health to all and may India go from strength to strength through all of our dedicated efforts.

Judicial Review and Commissions of Inquiry

(By N. Dharmadan, Sr. Advocate, High Court of Kerala)

The Commissions of Inquiry Act, which was modelled on Tribunals of Inquiry (Evidence) Act, 1921 of England, was enacted in India in 1952. The Central Government in consultation with State Governments introduced a Bill No. 39 of 52 in Lok Sabha on 28.5.52. It was passed with some changes and the Act came into force from 1.10.52. This Act has been in operation for nearly five decades and about three hundred Commissions have been appointed by various Governments since then.

The very object of the Act is to enquire into definite matters of "public importance" and killing of harmful and unjustified rumours. The Supreme Court in P. V. Jaganath Rao v. State of Orissa (AIR 1969 SC 215) held "the object of the enquiry to be made by the Commission appointed under S.3 of the Act was to make appropriate legislative or administrative measures to maintain the purity and integrity of political administration in the State."

A Commissions of Inquiry is purely a fact finding agency and its function is "investigatory and inquisitorial in character"(Ramakrishna Dalmia v. Sri. S.R. Thendolker, AIR 1958 SC 538). It can enquire into any matter of public importance. The Supreme Court observed "when Parliament makes law under Art.246, read with Entry 45 in List III with respect to an inquiry for the purposes of any of the matters in List II, such law can never be one for inquiry for the purpose of future legislation by Parliament with respect to any of those matters in List II. Clearly Parliament can make a law for inquiry for the purpose of any of the matters in List II and none the less, so though Parliament cannot legislate with respect to such matters and though none of the State Legislatures wants to legislate on such matters. In our opinion, therefore the law to be made by the appropriate legislature with respect to the two legislative entries referred to above, may cover inquiries into any aspect of the matters enumerated in any of the lists mentioned therein and is not confined to those matters as mere heads of legislative topic".

The Commissions of Inquiry culminate in a report with various recommendations, but the findings contained therein cannot be enforced 'pro prio vigore'. They have no binding force as in the case of a verdict of a court. In Dalmia's case the Supreme Court held "The Commission of Inquiry has no judicial powers and its report will purely be recommendatory and not effective 'pro prio vigore' and the statement made by any person before the Commission of Inquiry is, under S.6 of the Act, wholly inadmissible in evidence in any future proceedings, civil or criminal, there can be no point in the Commission of Inquiry making recommendations for taking any action as by way of securing redress or punishment". Nevertheless the findings of the Commission carry a great weight in public life for the very object of ordering an enquiry is to preserve the purity and integrity of public administration(P.K. Kunju v. State of Kerala, AIR 1970 Kerala 252). The Supreme Court in P.V. Jaganatha Rao's case(AIR 1969 SC 215) has taken the view that "the recommendations of Commission of Inquiry are of great importance to the Government in order to enable it to make up its mind as to what legislative or administrative measures should be adopted to eradicate the evil found or to implement the beneficial object it has in view." However inquiries under the Act cannot determine "guilty or innocence of any person". Such inquiries are not designed by this Act. They have to be left to the ordinary criminal procedure and the criminal courts. In fact there are no accusers, no accused, defendants, or plaintiffs in an enquiry. It was held by Supreme Court in Baliram v. Justice B. Lentir (AIR 1988 SC 2267). "An enquiry under the Commissions of Inquiry Act, 1952, on the other hand, is of wholly different character. There is no accuser, no accused and no specific charges for trial; nor is the Government under the law, required to pronounce, one way or the other, on the findings of the Commission". The only power of the Commission is to inquire and make a report. The Commission has no power of adjudication in the sense of passing an order which can be enforced by the parties or the Government. It cannot be looked upon as a judicial enquiry in the sense of its being an exercise of judicial function properly so called.

It is pertinent to note that Commissions of Inquiry are not strictly classified into any of the three basic branches of the Government viz., Legislative, Executive and the Judiciary. The Commissions of Inquiry are not part of the State services nor do they legislate or take decisions as a Court of law. Thus the functions which are carried out by these Commissions of Inquiry are not the same as the functions carried out by three fundamental institutions mentioned above.

The report of the Commission has no legal consequences. It is not binding on the parties. It has no effect 'pro prio vigore'. It has no evidentiary value nor can the statements given before the Commission are worthy enough to be used for contradicting the persons who gave the same (Kehar Singh v. State of Delhi Adm., AIR 1988 SC 1883). The Government may either accept or reject the report. There are good number of instances where the Government did not accept the report of the Commission. However a Commission may by statute be a legislative auxiliary or it may by appearance on the clock of judicial procedure, but it remains in essence an aspect of the executive a creature of the prerogative (Royal Commissions of High Courts by Dr. William Hodge page 403). Since there are no guide lines in S.3 to disearn the nexus between the object and the notification constituting the Commission there is scope for misuse of this provision on political or other considerations. The only limitation in the section is that the inquiry must be confined to "definite matter of public importance". Therefore, the inquiry commission should not be appointed for investigating a matter (i) which is not definite, (ii) which is vague, (iii) which is not of public importance, and (iv) which is aimed at character assassination, vilification or exposition of a person because of political or personal considerations to wreak vengence. If the very object and purpose of the appointment of the Commission of Inquiry is far any of the above objects or purposes the Courts will step in to set aside the order.

The conduct of the Commissions of Inquiry and their reports therein have often been reviewed by the Court particularly in view of the fact that the individuals who become the subject of the Inquiry are not afforded the same safeguard as are afforded by the ordinary courts. It is settled law that the public authorities and functionaries are expected to be fair in exercise of their powers. Any abuse of power to the detriment of the public on the part of these authorities is to be condemned (M/s. Chetack Constructions Ltd. v. Om Prakash, AIR 1998 SC 1855). In Electricity Commissions Case ((1924) 1 KB 205) Atkin, J. said "wherever anybody of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdictions of the King's Bench Division exercised in these writs". The enquiry is being conducted by an officer or authority or "body of persons" constituted legally, either by statute or by common law. The final conclusions of these bodies are amenable to writ jurisdiction.

In the judgment in this case, Atkin L.J. had demarcated the limits of jurisdiction of the Courts upon the judicial review on the decision or a finding of a tribunal. It has been explicitly stated that the issue of certiorari is not confined to the control of decision making process of the inferior courts or bodies analogous to Courts, Boards, Tribunals and Commission of Inquiry, in a wide variety of situations; but the emphasis in this regard, is the 'fairness' and 'openness' with which these bodies have acted in coming to the final conclusions irrespective of the fact whether they had exercised quasi judicial or administrative powers. In other words the governing consideration is not the status or identity of the person or authority or tribunal making the order or decision; but whether the person or authority has acted "fairly". It is in this regard that these bodies are amenable to the supervisory jurisdiction of the High Court by means of a writ of certiorari.

Focusing the attention on the term "rights" in the dictum of Lord Atkin some critics and jurists viewed that in Commissions of Inquiry there is no determination of any issue and therefore there is no room for the issue of a writ of certiorari or prohibition. In other words according to them what the Commissions do is only to make investigations and give their suggestions by way of recommendations and the reports only embody their recommendations and nothing more for the courts to judicially examine. Therefore no writ will lie.

But this view had been successfully assailed by many jurists and various judicial decisions. After the well known decisions in R. v. Legislative Committee ((1928) 1 K.B.411) ,Nakkadu Ali v. Jayaratne ((1992) AC 66) and Redge v. Baldwin ((1964) AC 40) it is no longer necessary that the "right" mentioned in Lord Atkin's dictum be an enforceable right.

The extended meaning of the word "rights" was given in R. v. Criminal Inquiries Compensation Board, Ex-parte Lain ((1967) 2 Q.B. 864). In this case, a Criminal Inquiries Compensation Board was appointed under the prerogative of the Crown to determine claims for compensation payable to victims of violence and the persons injured whilst assisting the police and the quantum thereof. Lord Parker, C.J. was of the view that a writ of certiorari would be issued not only to courts, but also to tribunals which derived authority from the Crown prerogative. The significant feature in this case was that the decision of the Board was not an enforceable right and it had no binding effect or force of its own. However it was held that prerogative writs were available to supervise the proceedings of the Board since the determination of the Board could be considered one step in the process whereby the legal status of a person could be altered and therefore it can be concluded that writs were available to supervise the proceedings of the Board. If the award or determination of the Board was going to effect the right or liability, then the person effected is entitled to obtain a writ of certiorari to quash the determination of the Board. In this case Ashworth, J. wished for a substitution of the word "rights" in Lord Atkin's dictum by the words "questions affecting subjects."

Diplock L.J. made it clear in the very same case that the supervisory jurisdiction of courts extends to bodies established by an executive act and to their decisions even if they do not directly affect legal rights. His view is:-

"If no tribunals are established by acts of Government, the supervisory jurisdiction of the High Court extends to them if they possess the essential characteristics upon which the subjection of inferior tribunals to the supervisory control of the High Courts is based. What are these characteristics? It is plain on the authorities that the Tribunal need not be one whose determination give rise directly to any legally enforceable right or liability. Its determination may be subject to certiorari, notwithstanding that it is merely one step in a process which may have the result of altering the legal rights or liabilities of a person to whom it relates. It is not even essential that the determination must have that result, for there may be some subsequent condition to be satisfied before the determination can have any effect upon such legal rights or liabilities."

Lord Parker, C.J. took similar view in the same case. Referring to Lord Atkin's dictum his Lordship said:

"The position, as I see it, is that the exact limits of the ancient remedy by way of certiorari have never been and ought not to be specifically defined. They have been varied from time to time, being extended to meet changing circumstances. The Judges went further to consider that anybody or persons of a public rather than a private character determining matters affecting subjects and acting judicially is subject to judicial review."

From this one thing is crystal clear that the word "right" has been given a more "flexible" meaning and the Courts are taking a less strict approach to what amounts to "rights" for the purpose of the application of the prerogative writs. In fact the view of Lord Parker, C.J. was that the "right" determined by the Electricity Commissioner upon the formulation of a Scheme were not immediately enforceable since the scheme had to be approved by the Minister of Transport and by resolution of Parliament. Nevertheless the Commissioners were subject to the supervisory jurisdiction of the Court and the Court issued writ of commission. The above observations of Justices viz. Lord Parker, C.J., Ashworth, J. and Diplock L.J. would support the view that the ambit of the writ of certiorari has been enlarged to include the Commission of Inquiry as well within its scope inspite of the fact that ultimate report of the Commission is to be dealt with by the Government either leading to further criminal action or implementation of the recommendations or it may lead to nothing. Whatever the ultimate steps of the Government be, there is nothing to prevent an earlier stage in the process from being judicial in character and subject to judicial review.

In Regina v. Boundary Commission for England ((1983) 2 WLR 458) the Court Appeal applying the dictum in Associated Provincial Picture Houses Ltd. v. Wednesbury Corp. ((1948) 1 K.B.233) held that:

"For present purposes it will suffice to say that the "Wednesbury" principle would or might in our opinion entitle the Court to intervene if it was satisfied that the Commission had misdirected themselves in law, or had failed to consider matters which they were bound to consider or had taken into consideration matters which they should not have considered. It would not, however, entitle it to interfere merely because it considered that, left on its own, it might (or indeed would) have made different recommendations on the merits; if the provisional conclusions of the Commission are to be attacked on the ground of unreasonableness, they must be shown to be conclusions to which no reasonable Commission could have come." However it is made clear that the Courts have the duty by resorting to judicial, review to ensure that Commission of Inquiry Act "most fairly and honestly"; but to what extend the Courts would interfere in the report of the Commission would depend upon the facts and circumstances of each case including the nature of the instructions which have been given by Parliament to the Minister, authority or body concerned.

The observation of Lord Denning M.R. in Re Pergamon Press Ltd?.((1970) 3 All.E.R.535) can be gainfully examined in this connection. The Board of Trade ordered an investigation into Pergamon Press Ltd. under S.165(b) of the Companies Act. The Directors of the Company complained when the Inspectors refused access to certain transcripts of evidence and contended that the Inspectors should have conducted the proceedings like a Court of law. Though the Court rejected this argument of the Directors, Lord Denning M.R. said thus:-

"These proceedings are not judicial proceedings. They are not even quasi-judicial, for they decide nothing, they determine nothing. They only investigate and report. They sit in private and are not entitled to admit the public to their meetings. They do not decide whether there is prima facie case. This would not lead us to minimise the significance of their task. They have to make a report which may have wide reprecussions. They may, if they think fit......order winding up of the Company "........."."They may, if they think fit, make findings of fact which are very damaging to those who they name. They may accuse some, they may condemn others; they may ruin reputations or careers. Their report may lead to judicial proceedings. It may expose persons to criminal prosecutions or to civil actions. It may bring about the winding up of the Company". Sachs L.J. said "there was the potential danger of causing harm to the reputation of individuals if the report was published". In view of the possible dangers, the Court took the view that the enquiry should be conducted fairly and the remedy of declaration for breach of fairness is available to the affected party.

In the illuminating judgment in Selvarajan v. Race Relations Board ((1976) 1 All.E.R.12) Lord Denning after surveying all the leading cases held as follows:-

"After an enquiry one need not look for enforceable right created by such an investigation and report and in fact there will not be; but yet there are reports which are really damning and prejudicial to a person's reputation and carrier, for the protection of which writs of Prohibition and Certiorari are allowed, ignoring the rules of natural justice which require specific grounds for its application; but adhering to the concept of "duty to act fairly", the House of Lords also in the case of R v. Commission for Racial Equality, Ex parte Collrell and Rothar ((1980) 3 All.E.R.265) emphasised the requirement of the Commission to act fairly in conducting the enquiry. In R v. Northumberland Compensation Appeal Tribunal ((1952) 1 K.B. 338), While and Collins v. Minister of Health ((1939) 2 K.B.838) and R v. Housing Tribunal ((1920) 3 K.B.334), the Court held that where there is an exercise of jurisdiction depending on erroneous findings of law or fact or that the decision is rendered on a point that was not before the Commission or Tribunal, the Court used to exercise its supervisory power to correct the error or mistake.

In the light of the foregoing discussions and judicial pronouncements it may be observed with certain amount of certainty that Courts have invariably aimed at protection of potential harm of person and issued writ of Certiorari and/or Prohibition whenever the Court is satisfied that there is potential danger of causing harm to the reputation of an individual by the Inquiry Commission and submission of report thereof.

It is obvious that a fact finding inquiry into specific allegations of misconduct should be conducted by the Commission strictly applying the principle of "Fair play in action". Otherwise innocent persons would be put to great difficulties. The report of the Commission, though not enforceable, may have wide repercussions. It may have the potential danger of causing harm to the reputation of individuals. In such case the only remedy available to such a person appears to be a declaration for breach of fairness. The Court has a duty, as held by Lord Parkar, C.J.(R v. Birmengham City Justice ex parte, (1970) 3 All.E.R.945 "the Justice in the exercise of his functions was under a duty to act openly, impartially and fairly". The Court by exercising the supervisory jurisdiction can either halt the proceedings of the Commission of Inquiry by allowing writ of Prohibition or quash the report/decision by a Writ of Certiorari. It is lamentable to state that the Courts in India are not showing so much "boldness" in protecting the rights of persons involved in the enquiry by granting relief as had been done by the English Courts as pointed above. Hence accordingly to me time has come for the Legislature to step with suitable amendments in the Commission of Inquiry Act for streamlining and laying down the standards for the scope of Judicial review in the interest of the really affected persons for the protection of their rights and grant of relief. The absence of sufficient safeguards to protect the reputation of innocent individuals involved in the enquiry, has been pointed out as a glaring weakness, by the Law Reforms Commission, in the present Commissions of Inquiry Act.