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Govt. of India

National Commission for Minorities

Lok Nayak Bhawan, Khan Market, New Delhi-3

Petitioner: Ms. Niyazbibi Bannumiyan Malek, Ahmedabad

Respondent: Govt. of Gujarat

File No. M/DL/30/0036/12

The petition was heard by a Bench of the NCM on 12.3.12 consisting of:

1. Shri Wajahat Habibullah, Chairperson

2. Dr. H.T. Sangliana, Vice Chairperson

3. Smt. Syeda Imam, Member

4. Shri Vinod Sharma, Member

5. Shri K.N. Daruwalla, Member

1. In its Decision Notice of 12/3/2012 the Commission held as follows:

“For the reasons discussed above, the Commission decided to adjourn the hearing.

In the meanwhile, (i) Learned Counsel for the Government of Gujarat will, within twenty days of receipt

of this Decision Notice, submit his response to the petition, a copy of which was supplied in the hearing, with complete details and records, together with the response of concerned State authorities to the application of respondent

Shri Sanjiv Bhatt. (ii) An affidavit be filed by Sh. Sanjiv Bhat with any additional facts, within twenty

days of receipt of this Decision Notice. (iii) Request for implement of counsel for Shri Dharmesh Prahladbhai Shukla, is

irrelevant in the present case.

S/Shri Kuldeep Sharma, the then range IG and M.C. Patel, inspector of Police be summoned for examination on the next date of hearing. Next date of hearing will be

intimated in due course, after taking into account State Government’s response.” 2. Consequently, Shri R.B.Sreekumar, IPS (Retd.) appeared before the

Commission on 2/4/2012 upon which the Commission recorded as follows:

The written response dated 3/4/2012 has been received. The copy of this statement will be sent to learned counsel Shri Devang Vyas, Advocate for State of Gujarat and Shri Vijay, US, Home Dep’t Govt. of Gujarat, who will be asked to include this in the

response of the government, which is awaited, as decided in Para (i) of the Decision Notice dated 12/3/2012. For this purpose learned counsel for the Govt. of Gujarat

Shri Devang Vyas is allowed a further fifteen days than allowed in the cited Decision for submitting his response. A copy will also be supplied for her information to petitioner Ms. Niyazbibi Bannumiyan Malek.

3. Subsequently, we have received the submission of the Government of Gujarat

by hand delivery vide their letter No. SBII/MNC/102012/12-3-12/1 dated

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04/05/2012.Critical to the submission of the Advocate for State of Gujarat is that this

Commission undertakes the exercise without jurisdiction and the same would result in

undermining the judicial orders passed by the Supreme Court. It is claimed that it is the

duty of the State Government to ensure that the judicial order passed by the Hon’ble

Supreme Court with respect to the very same subject matter which this Commission is

now ‘belatedly’ seeking to examine are complied with in letter and spirit, and no

statutory body undertakes an exercise without jurisdiction. Further, it is stated that the

NHRC has filed a writ petition no. 109/2003 before the Supreme Court on the very

subject matter. The Hon’ble Supreme Court on the various petitions filed after

examining, constituted SIT consisting of five members vide order dated 26.03.200. The

SIT conducted further investigation under the supervision of Hon’ble Supreme Court. It

is also pointed out that as directed by the Hon’ble Court SIT has already recorded the

statement of Shri R.B. Sreekumar, Shri Sanjiv Bhatt and Shri Rahul Sharma who are

now sought to be summoned by this Hon’ble Commission. It is also stated that Shri R.B.

Sreekumar moved an application in SLP No. 1008/2008 filed by Smt. Zakia Jafri for

being impleaded as a party respondent, which was dismissed by the Hon’ble Supreme

Court. It is also stated that Shri Sanjiv Bhatt sought to submit an affidavit before the

Hon’ble Supreme Court which pertained to the very same subject matter; the same was

not taken even on record. It is also stated that in compliance of the order passed by the

Hon’ble Supreme Court, the SIT has filed its report under section 173 of Cr PC before

the Competent Jurisdictional Magistrate having jurisdiction to examine such reports. It is

also stated that after being supplied with details and grounds, upon which to this

Commission had issued summons, the State Govt. wish to point out as to how the

issues sought to be gone into this Commission are not falling within the purview of the

Commission, in view of, the subject matter already being subject to judicial scrutiny

before the court and before a Commission appointed under the Commission of

Enquiries Act 1952.

4. On the basis of the above it might be seen that the Advocate for State of Gujarat,

while on the one hand asking the Commission to dismiss the petition, while recognizing

that complainant Ms. Malek Niyazbibi Bannumiyan, whose continuing status as

internally displaced person is not denied, is not party to the present investigations-albeit

alleging ‘collusion’ with “disgruntled officers”, which plea in itself would have warranted

investigation-has, on the other hand claimed that in light of the details discussed above,

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an investigation by the NCM into the matter would amount to the Commission

exceeding its brief.

5. The Government of Gujarat has therefore raised two issues; firstly as to the lack

of jurisdiction of the Commission to enquire into this matter and, secondly, with regard

to the propriety of the Commission to look into this matter on various grounds including

the allegation that such complaints have been/are being looked into by the Commission

of Enquiry set up and/or in the proceedings pending in the Supreme Court and by the

SIT set up under orders of the Supreme Court.

6. The first issue is jurisdiction. The second is one of propriety which we do not

propose to go into since whether the Commission should go into this matter in relation

to the complaint dated 10th February, 2012 is not an issue of jurisdiction but of

discretion. The issue of jurisdiction has to be gone into with square reference to the

provisions of National Commission for Minorities Act, 1992. The Commission has

certain well defined functions which are set out in Section 9 of the Act (Chapter III). The

clause relevant to this issue is section 9(1) (d) where the Commission has to perform

the function of looking into specific complaints regarding deprivation of rights and

safeguards of the minorities and take up such matter with the appropriate authorities.

The question is whether this function has to be construed having regard to the other

generic provisions set out in section 9(1). Such powers are general and advisory. An

examination of these definitions leads us to the following conclusions:

(A) It is clear that the Commission is not a judicial or investigative body, nor does it have

any judicial or coercive powers with regard to its functioning. Section 9(4) does not

convert the Commission into a “Court” or investigative body.

(B) In the present case the Commission would be required to proceed with an

investigation so as to arrive at a decision. This would suggest that the Commission

would require examining the individual case and arriving at a “decision” as of a

quasi-judicial body. All that the Commission can do, however is to look into the

matter and then bring it to the attention of the appropriate authority. Pronouncing a

“decision” and going into aspects of culpability or wrong doing will indeed be beyond

the jurisdiction of the Commission. The Commission can only take up such matters

as pertain to deprivation of rights and safeguards of the minorities and pursue the

same with the appropriate authorities.

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(C) The complaint seeks to convert the Commission into an inquisitorial forum, which is

impermissible.

Decision Notice:

7. In light of the above, it may therefore be seen that the Commission does not

have jurisdiction to look into this matter in order to investigate it as has been requested

in the representation of 10/02/2012 of petitioner Ms. Niyazbibi Bannumiyan Malek.

Further proceedings in this matter will therefore recede and the petition is dismissed. A

copy of the papers received by the Commission from Shri Sanjiv Bhatt, Shri R.B.

Sreekumar and the Government of Gujarat are forwarded to the competent jurisdiction

magistrate having statutory competence and the Commission appointed under the

Commission of Enquiries Act, 1952 together with the copy of the representation

received on 10/02/2012 for being placed on their record and further investigation if

deemed fit. The Commission would however recommend that petitioner Ms. Niyazbibi

Bannumiyan Malek’s plea that she, a member of the minority Muslim community, has

suffered injustice and loss, merits examination by the Government of Gujarat.

8. Announced this third day of July 2012 in open chambers.

Sd/- Sd/-

(Wajahat Habibullah) (Dr. H.T. Sangliana) Chairperson Vice Chairperson

Sd/- Sd/- (Syeda Imam) (Vinod Sharma)

Member Member

Sd/- (K.N. Daruwalla)

Member

Authenticated true copy. Additional copies of order shall be supplied on application.

(Esther Kar) 3.07.2012