(Per : HONOURABLE MR.JUSTICE V. M. SAHAI)
1. We have heard Mr.Mrudul Barot, learned counsel appearing for the appellant and Mr.P.K.Jani, learned Government Pleader assisted by Mr.N.J.Shah, learned Assistant Government Pleader appearing for respondent nos. 2,3 and 4.
2. Draft amendment is allowed. Learned counsel for the appellant shall carry out the amendment during the course of the day. Notice returnable on 6th March, 2012. Mr. P.K.Jani, learned Government Pleader on instructions from the Government informed the Court that prior to 18.3.2001, only Chairperson, Gujarat State Human Rights Commission had been appointed by the State Government and after 18.3.2011, only Chairman and one member have been appointed by the State Government.
3. The facts are that a graveyard is situated in survey no.261 of Vinzol Gram Panchayat, Dist: Ahmedabad which was being used by the Christian Community. According to the appellants, some persons started illegal digging in survey nos. 264, 162, 186 and 262 which were adjoining to the graveyard. While doing so, they also started digging on the road leading to the graveyard. The Catholic Church, Vatva made an application on 9.12.2003 to Vatva police station about the illegal digging and the Sarpanch of Vinzol Gram Panchayat on 9.12.2003 regarding the same. An application was also made by the appellant to the District Collector on 10.3.2006. But no action was taken by either the police or Collector or Gram Panchayat, and the digging continued due to which some tombs of the graveyard were damaged, therefore, the appellant made a complaint to National Human Rights Commission (for short the NHRC) on 29.12.2006 which was registered as case No.753/06/06-07-OC. The NHRC issued notice to the District Collector, Ahmedabad on 5.3.2007 calling for a report from him regarding illegal digging and damage to the graveyard.
4. Since there was no response to the notice and no report was forwarded by the District Collector to the NHRC, a summons was issued on 24.5.2001 to the District Collector, Ahmedabad to produce the report before NHRC on 27.7.2010. The Collector again did not respond to the summons, therefore, by letter dated 17.8.2010, NHRC summoned the District Collector, Ahmedabad on 19.10.2010 to appear before it alongwith report. The District Collector, Ahmedabad neither appeared before NHRC as directed nor submitted the report. Therefore, NHRC, in exercise of powers under sub-section (6) of section 13 of the Protection of Human Rights Act, 1993, (for short the Act, 1993) transferred the case of the appellant to Gujarat State Human Rights Commission by order dated 9.3.2011 which was communicated by letter dated 18.3.2011.
5. The transfer of case by NHRC was challenged by the petitioner by filing a writ petition being Special Civil Application No.13592 of 2011 which had been dismissed by the learned Single Judge on 13.9.2011. The order of learned Single Judge has been challenged in the instant Letters Patent Appeal.
6. Learned counsel Mr.Mrudul Barot, appearing for the appellant has urged that transfer of the complaint by the NHRC to Gujarat State Human Rights Commission by order dated 9.3.2011 was illegal as once NHRC has taken cognizance of the matter, but the Collector neither appeared before NHRC nor submitted his report. Therefore, NHRC ought not to have exercised its power under section 13(6) and (7) of the Act of 1993. Mr.Barot has further urged that on or before 9.3.2011, Human Rights Commission was not functional in the State of Gujarat as it was not validly constituted and even as on today, it is not functional as proper quorum to make Gujarat State Human Rights Commission functional has not been appointed by the State Government.
7. Mr.
P.K.Jani, learned Government Pleader on instructions from the Government informed the Court that prior to 18.3.2001, only Chairperson, Gujarat State Human Rights Commission had been appointed by the State Government and after 18.3.2011, only Chairperson and one member have been appointed by the State Government.
8. Mr.P.K.Jani, learned Government Pleader has placed reliance on section 9 of the Act of 1993 and has urged that even if the Commission is defective or there exists any vacancy therein, it would be functional and has to be treated as validly constituted. It is necessary to extract section 9 of the Act of 1992 as under:
"Section 9: Vacancies etc. not to invalidate the proceedings of the Commission:- No act or proceedings of the Commission shall be question or shall be invalidated merely on the ground of existence of any vacancy or defect in the Constitution of the Commission."
The question that arises on the argument of the learned Government Pleader is whether the Commission has to be validly appointed and constituted under sections 21 and 22 of the Act of 1993. It is necessary to extract sections 21 and 22 of the aforesaid Act as under:
"21.
Constitution of the State Human Rights Commission:(1) A state Government may constitute a body to the known as the.......(Name of the State) Human Rights Commission to exercise the powers conferred upon and to perform the functions assigned to a State Government under this Chapter.
(2) The State Commission shall, with effect from such date as the State Government may by notification specify, consist of-
(a) A Chairperson who has been a Chief Justice of a High Court;
(b) one Member who is, or has been, a Judge of a High Court or District Judge in the State with a minimum of seven years experience as District Judge;
(c) one Member to be appointed from among persons having knowledge of or practical experience in matters relating to human rights.
3. There shall be a Secretary who shall be the Chief Executive Officer of the State Commission and shall exercise such powers and and discharge such functions of the State Commission as it may delegate to him (4) The headquarters of the State Commission shall be at such place as the State Government may, by notification, specify.
(5) A State Commission may inquire into violation of human rights only in respect of matters relatable to nay of the entries enumerated in List II and List III in the Seventh Schedule to the Constitution.
Provided that if any such matter is already being inquired into by the Commission or any other Commission duly constituted under any law for the time being in force, the State Commission shall not inquire into the said matter:
Provided further that in relation to the Jammu and Kashmir Human Rights Commission, this sub-section shall have effect as if for the words and figures "List II and List III in the Seventh Schedule to the Constitution" the words and figures "List III in the Seventh Schedule to the Constitution as applicable to the State of Jammu and Kashmir and in respect of matters in relation to which the Legislature of that State has power to make laws" had been substituted.
(6) Two or more State Governments may, with the consent of a Chairperson or Member of a State Commission, appoint such Chairperson or, as the case may be, such Member of another State Commission, simultaneously if such Chairperson or Member consents to such appointment;
Provided that every appointment made under this sub-section shall be made after obtaining the recommendations of the Committee referred to in sub-section(1) of section 22 in respect of the State for which a common Chairperson or Member, or both, as the case may be, is to be appointed."
22. Appointment of Chairperson and (Members) of State Commission:- (1) The Chairperson and (Members) shall be appointed by the Governor by warrant under his hand and seal;
Provided that every appointment under this sub-section shall be made after obtaining the recommendation of a Committee consisting of-
(a) the Chief Minister-Chairperson;
(b) Speaker of the Legislative Assembly-Member;
(c) Minister in-charge of the Department of Home in that State-Member;
(d) Leader of the Opposition in the Legislative Assembly-Member;
Provided further that where there is a Legislative Council in a State, the Chairman of that Council and the Leader of the Opposition in that Council shall also be members of the Committee:
Provided also that no sitting Judge of a High Court or a sitting district Judge shall be appointed except after consultation with the Chief Justice of the High Court of the concerned State (2) No appointment of a Chairperson or a Member of the State Commission shall be invalid merely by reason of (any vacancy of any Member in the Committee referred to in sub-section (1)."
From the reading of the aforesaid sections, prima facie, it appears to us that first the Commission has to be validly constituted and after the procedure is followed under sections 21 and 22 of the Act by appointing a Chairperson and two members, it becomes validly constituted and functional. Subsequently if any vacancy arises or any defect occurs only then, section 9 may be of any help to the State Government. But prima facie, it appears to us that the Gujarat Human Rights Commission, from its very inception could not be constituted as a disabled or defective authority, which could not be treated as functional.
9. In this view of the matter, learned Government Pleader is directed to file the affidavit of Chief Secretary, Government of Gujarat, informing the Court as to whether prior to 9.3.2011 or thereafter the Gujarat State Human Rights Commission was validly constituted under the provisions of Protection of Human Rights Act, 1993 and was functional from which date. It shall further be stated that who were the Chairperson and members of the Commission, prior to 18.3.2011 and thereafter. At present whether Gujarat State Human Rights Commission is validly constituted and functional. On what date the Commission was constituted and the dates on which the Chairperson and members were appointed and when their term are coming to an end. Whether the State Government is of the opinion that merely appointing a Chairperson or Chairperson with one member is sufficient to constitute a valid Commission under section 21 of the Act, 1993 shall clearly be explained in the affidavit. If the State Government is of the opinion that for a validly constituted Commission under section 21 of the Act,1993, a Chairperson and two members are required to be appointed then, it shall further be explained in the affidavit as to why appointments are not been made by the State Government in compliance of Sections 21 and 22 of the Act, 1993 and what is the difficulty in appointing members shall be explained. All the aforesaid facts shall be stated in the affidavit to be filed by the Chief Secretary. The respondent nos. 2 to 4 shall also file their affidavits explaining in the affidavit as to why District Collector, Ahmedabad has not submitted his report in pursuance of the direction issued by the NHRC nor he appeared before it, as well as on the points on which the Chief Secretary had been directed to file affidavit.
10. If the facts urged by the learned counsel for the appellant are correct that Gujarat State Human Rights Commission had not been validly constituted or is non-functional, then it may amount to denial of Human Rights to the residents of State Government. Office is directed to hand over a free copy of this order to learned Assistant Government Pleader Mr.N.J.Shah for information and ensuring compliance of this order, today. List this matter on 6.3.2012. Direct service is permitted today.
(V.M.SAHAI,J) (A.J.DESAI,J) ***vcdarji Top