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SC stays suo-moto powers of SAC, says no such provision in Act

Commission exceeded powers by enacting Section 9 of Regulations: Govt

Mohinder Verma
JAMMU, Apr 27: In a major development, Supreme Court has stayed the suo-moto powers of the Jammu and Kashmir State Accountability Commission (SAC) stating that there is no such provision in the Act where under the Commission was established.
The order has been passed in a Special Leave Petition (SLP) filed by State Government challenging the judgment of Division Bench of State High Court dated February 1, 2016 whereby suo-moto powers were upheld.
On April 20, 2018, a Bench of the Apex Court comprising Chief Justice of India Justice Dipak Misra, Justice A M Khanwailkar and Justice D Y Chandrachud had observed, “we are inclined to condone the delay in filing and re-filing the Special Leave Petition”. Accordingly, the Supreme Court Bench had ordered listing of the case on April 27, 2018.
Today, when the SLP came up for hearing, Supreme Court Bench comprising Chief Justice Dipak Misra, Justice D Y Chandrachud and Justice Indu Malhotra heard the arguments of Senior Advocate Shekhar Naphade and Advocate General Jehangir Iqbal Ganai, who were appearing for the State of J&K, and Senior Advocate Colin Gonsalves for the State Accountability Commission.
“In J&K State Accountability Commission Act, there is no provision of suo-moto cognizance”, the Apex Court observed and stayed the suo-moto powers which were upheld by the Division Bench of the J&K High Court in February 2016. The suo-moto powers of SAC have been stayed till July 24, 2018 when the SLP will again come up for hearing.
In the SLP, the Government has stated that Rule 9 of the J&K Accountability Commission Regulations, 2005, which provides the procedure in suo-moto actions, is ultra vires the Act in as much as the Act does not vest any power in the Accountability Commission to initiate suo-moto proceedings against any public functionary. “Section 31 of the Act only empowers the SAC to conduct investigation and inquiries in respect of the complaints under the Act. Moreover, it is settled principle of law that a statutory authority cannot assume unto itself any power or authority which is not conferred upon it by the Statute itself”, the SLP further said.
It was submitted by the Government that the Accountability Commission exceeded the powers vested in it by virtue of Section 31 of the Act in enacting Section 9 of the Jammu and Kashmir Accountability Commission Regulations, 2005. “Section 31 of the Act empowers the Accountability Commission to make Rules only for the conduct of its business and not to substantively add powers, which have not been granted to it by the Act”, the SLP said.
Stating that the Act was amended in the year 2011 to include Section 32, which has divested the Accountability Commission of the power to deal with pending complaints against public servants unless the Accountability Commission has recorded its findings or made recommendations to the Competent Authority, the Government submitted before the Supreme Court that the court below has committed grave error in failing to take note of this provision.
“The High Court has erroneously observed that the legislative intent of the Act would be defeated if it is accepted that the Accountability Commission cannot initiate suo-moto proceedings. The Legislature has intentionally omitted suo-moto proceedings from the purview of the Act and somehow reading the power to do so in the Act would amount to deviation from the settled principles of purposive interpretation”, the Government further submitted.
“The Supreme Court on various occasions has observed that purposive interpretation cannot be used to vest in an authority or take away substantive rights”, the SLP said.
It is pertinent to mention here that Division Bench of the State High Court comprising Justice Muzaffar Hussain Attar and Justice B S Walia had held that Commission, although created by Statute, was not mere a statutory authority but a superior authority akin to a constitutional authority to keep the functions of the highest constitutional authorities in the State within the bounds of law and to provide an institution to the citizens of Jammu and Kashmir for highlighting their just and lawful grievances/complaints in respect of actions of the public functionaries.
While upholding the suo-moto powers of SAC, the Division Bench of J&K High Court had stated: “Accountability Commission in essence resembles a constitutional authority and in legal sense wears constitutional complexion and radiates constitutional flavor. Though it has to act in accordance with the Statute but its functioning cannot be circumscribed or limited by the Statute as such this Commission cannot be denied the power to initiate suo-moto action for achieving the purpose of considerable public importance”.

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