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 Governments 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 Dept 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.
by

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

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 Honble
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 Honble 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 Honble Supreme Court. It
is also pointed out that as directed by the Honble 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 Honble 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 Honble Supreme
Court. It is also stated that Shri Sanjiv Bhatt sought to submit an affidavit before the
Honble 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
Honble 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 10 th 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, howeve r 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 Maleks 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/(Wajahat Habibullah)
Chairperson

Sd/(Dr. H.T. Sangliana)

Vice Chairperson

Sd/(Syeda Imam)
Member

Sd/(Vinod Sharma)
Member
Sd/(K.N. Daruwalla)
Member

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

(Esther Kar)
3.07.2012