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The State of Maharashtra Vs. India Electric Corporation - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 581 of 1977
Judge
Reported in(1978)80BOMLR291
AppellantThe State of Maharashtra
RespondentIndia Electric Corporation
DispositionAppeal allowed
Excerpt:
.....note prepared by the additional chief engineer was relevant and rejecting the contention of the state government claiming privilege in respect thereof.;it is not possible to define the expression 'affairs of state'. it includes any matter of a public nature with which the state is concerned or the disclosure of which will be prejudicial to the public service. when the evidence act, 1872 was enacted the expression 'affairs of state' may have had a comparative narrow content, e.g. matters of political or administrative character relating to national defence, public peace and security and good neighbourly relations. but the inevitable consequence of the change in the concept of the functions of the state is that the state in pursuit of its welfare activities undertakes to an increasing..........document by the state of maharashtra has arisen in a suit filed by a contractor against the state government for damages on the ground that the breach of contract was committed by the state government. the suit was defended by the state government and ultimately issues were framed on april 30, 1970. during the pendency of the suit, on july 1, 1974 the advocate of the plaintiff addressed a representation to the minister for buildings and communications, state of maharashtra, asking for his intervention in the matter so as to find out some solution without prejudice to the rights and contentions of the parties in the matter. after his representation was received by the minister, the minister in his turn called for a note or report from the additional chief engineer in charge of the.....
Judgment:

R.M. Kantawal, C.J.

1. The question as regards privilege claimed against disclosure of certain document by the State of Maharashtra has arisen in a suit filed by a contractor against the State Government for damages on the ground that the breach of contract was committed by the State Government. The suit was defended by the State Government and ultimately issues were framed on April 30, 1970. During the pendency of the suit, on July 1, 1974 the advocate of the plaintiff addressed a representation to the Minister for Buildings and Communications, State of Maharashtra, asking for his intervention in the matter so as to find out some solution without prejudice to the rights and contentions of the parties in the matter. After his representation was received by the Minister, the Minister in his turn called for a note or report from the Additional Chief Engineer in charge of the Department. Such note or report was submitted by him to the Minister on October 19, 1974. On October 20, 1976 the plaintiff filed an application for production of the note or report submitted by the Additional Chief Engineer pending the litigation for consideration of the Minister. The State of Maharashtra claimed privilege in respect of this document and filed an affidavit of the Secretary claiming privilege. Even the Secretary of the Department was permitted to be cross-examined and ultimately by its order dated July 31, 1976 the trial Court over-ruled the objection of the State Government claiming privilege. The matter thereafter came to the High Court in Civil Revision Application No. 66 of 1977. In that Revision Application by an order dated April 5, 1977 the High Court directed the trial Court to find out whether the note or the report that was sought to be produced by the plaintiff was relevant. Pursuant to this order the trial Court by its order dated July 30, 1977 held that the Note prepared by the Additional Chief Engineer was relevant and rejected the contention of the State Government claiming privilege in respect thereof. It is this order of the trial Court which is the subject-matter of this revision application.

2. Mr. Kurdukar, the learned Assistant Government Pleader on behalf of the State Government submitted that the document of which production was sought on behalf of the plaintiff was a privileged document in view of the provisions of Sections 123 and 124 of the Evidence Act and the trial Court was in error in taking the view that the document was relevant and no privilege in respect thereof could be claimed by the State Government. He also submitted that the Note prepared by the Officer of the Government for consideration of the Minister in a pending litigation when one party through his advocate approaches the Minister for settlement of the disputes without prejudice to the rights of the parties is per se a confidential document which having regard to the provisions of Sections 123 and 124 of the Evidence Act can neither be regarded as relevant to the matters in dispute between the parties nor can it be permitted to be or compelled to be disclosed pursuant to an order of the Court. According to him the trial Court was in error in holding that the document was relevant and no privilege could be claimed in respect thereof. Mr. Paranjape, on the other hand, on behalf of the plaintiff submitted that a Note prepared by the Additional Chief Engineer for consideration of the Minister in relation to the matters in dispute between the parties in the litigation is always relevant and no privilege can be claimed in respect thereof either having regard to the provisions of Section 123 or Section 124 of the Evidence Act. In short, his submission was that the document does not relate to any affairs of the State nor can it be said that this document was communicated by the Additional Chief Engineer to the Minister in official confidence. There is no question, according to his submission, of public interest suffering by the disclosure of this document. Besides these contentions, on the merits he also raised a preliminary contention that the revision application is not competent, because by the impugned order it cannot be stated that any case has been decided by the subordinate Court and on that ground the revision application is liable to be dismissed in limine. Before dealing with the preliminary contention I will prefer to deal with the merits of the controversy between the parties.

4. At the outset one should be clear about the document in respect of which disclosure is sought by the plaintiff. A litigation was already pending between the plaintiff and the State Government claiming damages for a breach of contract alleged to have been committed by the State Government. During the course of the hearing of this suit without prejudice to the matters in controversy between the parties on July 1, 1974 the advocate of the petitioner made a representation to the Minister in charge of the Department to intervene in the matter and to find out a solution. It was pursuant to this request that the Minister called for a Note or a report from the Additional Chief Engineer in charge of the contract. It is the disclosure of this Note or report that has been asked for by the plaintiff even though the document came into existence in a pending litigation for consideration of the Minister when a representation was made to him for amicable settlement of the matter without prejudice to the rights and contentions of the parties.

5. There are two sections of the Evidence Act which need to be considered in connection with a claim for privilege in relation to a document of this nature. They are as under:

123. Evidence as to affairs of State.-No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.

124. Official communications.-No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.

6. It is not possible to define the expression 'affairs of Stats'. It includes any matter of a public nature with which the State is concerned or the disclosure of which will be prejudicial to the public service. The exclusion is not confined to official communications or documents but extends to all others likely to prejudice the public interest. When the Evidence Act was enacted the expression 'affairs of State' may have had a comparatively narrow content, e.g. matters of political or administrative character relating to national defence, public peace and security and good neighbourly relations. But the inevitable consequence of the change in the concept of the functions of the State is that the State in pursuit of its welfare activities undertakes to an increasing extent activities which were formerly treated as purely commercial and documents in relation to such activities are also apt to relate to the affairs of State. As the Legislature has refrained from defining the term 'affairs of State' it would be inexpedient to attempt to define it. The question as to whether any document answers to the description has to be determined on the relevant facts and circumstances adduced in each case. It can be said without much hesitation that on the grounds of public policy, the official communications between the heads of departments of Government and their subordinate officers are in general treated as secrets of State and cannot be the subject of an action for libel. The affairs of State may cover the case of documents in respect of which the practice of keeping them secret is necessary for the proper functioning of the public service. In Section 123, public policy also requires that communications made to a public officer in official confidence should not be disclosed as being detrimental to public interest or service. Communications may be oral or in writing. The confidence reposed may be expressed or implied. Section 124 is not confined to unpublished record as in Section 123. Privilege extends only to a communication on the subject with respect to which the privilege extends and the privilege can be claimed in exercise of the right or safe-guard of the interest which creates the privilege.

7. A large number of cases were cited by Mr. Paranjape but in my opinion, it is unnecessary to refer to each one of them, because the principles which govern the case are fully crystallised by more than one decision of the Supreme Court. Suffice it for the present purpose if reference is made to the decision of the Supreme Court in the case of State of Punjab v. S.S. Singh : [1961]2SCR371 . In that case a question arose whether privilege can be claimed in respect of documents embodying minutes of meetings of Council of Ministers and report of Public Service Commission tendered under Article 320(3)(c) of the Constitution of India. While considering this question the Supreme Court had occasion to consider the scope and ambit of Section 123 of the Evidence Act. The Supreme Court considered which type of disputes can be regarded as relating to any affairs of State. At page 501 it is observed:.What are the affairs of State under Section 123? In the latter half of the Nineteenth Century affairs of State may have had a comparatively narrow content. Having regard to the notion about governmental functions and duties which then obtained, affairs of State would have meant matters of political or administrative character relating, for instance, to national defence, public peace and security and good neighbourly relations. Thus, if the contents of the documents were such that their disclosure would affect either the national defence or public security or good neighbourly relations they could claim the character of a document relating to affairs of State. There may be another class of documents which could claim the said privilege not by reason of their contents as such but by reason of the fact that, if the said documents were disclosed, they would materially affect the freedom and candour of expression of opinion in the determination and execution of public policies. In this class may legitimately be included notes and minutes made by the respective officers on the relevant files, opinions expressed, or reports made, and gist of official decisions reached in the course of the determination of the said questions of policy. In the efficient administration of public affairs government may reasonably treat such a class of documents as confidential & urge that its disclosure should be prevented on the ground of possible injury to public interest. In other words, if the proper functioning of the public service would be impaired by the disclosure of any document or class of documents such document or such class of documents may also claim the status of documents relating to public affairs.

It may be that when the Act was passed the concept of governmental functions and their extent was limited, and so was the concept of the words 'affairs of State' correspondingly limited; but, as is often said, words are not static vehicles of ideas or concepts. As the content of the ideas or concepts conveyed by respective words expands, so doss the content of the words keep pace with the said expanding content of the ideas or concepts, and that naturally tends to widen the field of public interest which the section wants to protect. The inevitable consequence of the change in the concept of the functions of the State is that the State in pursuit of its welfare activities undertakes to an increasing extent activities which were formerly treated as purely commercial, and documents in relation to such commercial activities undertaken by the State in the pursuit of public policies of social welfare are also apt to claim the privilege of documents relating to the affairs of State.

(Italics ours).

8. It is quite evident from this decision of the Supreme Court that in modern times the expression 'affairs of State' is not to be restricted to the few items to which it related in the Nineteenth century. If a Note or a report is made by a public officer for consideration of the Minister in a pending litigation when the other side approaches the Minister for settlement, efficient administration demands that such document will be treated as confidential and its disclosure will be prevented on the ground of possible injury to public interest. Any other view of the matter will affect the freedom and candour of expression of opinion on the part of a public officer like the Additional Chief Engineer while submitting his report or note to the Minister. In respect of such a document privilege can legitimately be claimed by the State Government both having regard to the provisions of Section 123 and Section 124 of the Evidence Act. Any other view of the matter will seriously prejudice the public interests which are of a paramount nature when controversy or conflict arises between the interest of a private individual and the functions of the State Government. Disclosure of such a document will always dissuade Government hereafter from receiving representations without prejudice from the other side for amicable settlement of the matter pending in a Court of law. It should not be overlooked that this is not a case where any record is made by a public officer like the Additional Chief Engineer contemporaneously with the execution of the contract, but it is an expression of opinion for consideration of the Minister in a pending litigation when the other side has approached the Minister for amicable settlement of the disputes between the parties. In respect of such a document the Government would be justified in claiming privilege both having regard to the provisions of Section 123 and Section 124 of the Evidence Act.

9. That takes me to the preliminary contention urged by Mr. Paranjpe as to whether the Civil Revision Application is competent. Under Section 115 of the Code of Civil Procedure a High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto and if such subordinate Court inter alia appears to have acted in the exercise of its jurisdiction illegally or with material irregularity. The only contention that has been urged by Mr. Paranjpe is that when on an application made by a plaintiff for disclosure of a document privilege is claimed by the State Government any order passed by the trial Court cannot be equated to the case which has been decided by the subordinate Court. The word 'case' is more comprehensive than the word 'suit'. No precise definition has been attempted of the word 'case'. To determine what this word means reference can be had to the decision of the Supreme Court in the case of S.S. Khanna f F.J. Dillon : [1964]4SCR409 . The Supreme Court in that case has taken the view that the power of the High Court under Section 115 is exercisable in respect of 'any case which has been decided'. The expression 'case' is not defined in the Code, nor in the General Clauses Act. It is undoubtedly not restricted to a litigation in the nature of a suit in a civil Court. It includes a proceeding in a civil Court in which the jurisdiction of the Court is invoked for the determination of some claim or right legally enforceable. The meaning of the expression 'case' must be sought in the nature of the jurisdiction conferred by Section 115 and the purpose for which the High Courts were invested with it. The expression 'case' is a word of comprehensive import : it includes civil proceedings other than suits, and is not restricted by anything contained in the section to the entirety of the proceeding in a civil Court. To interpret the expression 'case' as an entire proceeding only and not a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence to which the jurisdiction to issue writs, and the supervisory jurisdiction are not subject, and may result in certain cases in denying relief to an aggrieved litigant where it is most needed, and may result in the perpetration of gross injustice. The expression 'case' includes a suit, but in ascertaining the limits of the jurisdiction of the High Court, there would be no warrant for equating it with a suit alone. Once it is granted that the expression 'case' includes a part of a case, there is no escape from the conclusion that re-visional jurisdiction of the High Court may be exercised irrespective of the question whether an appeal lies from the ultimate decree or order passed in the suit. Any other view would impute to the Legislature an intention to restrict the exercise of this salutary jurisdiction to those comparatively unimportant suits and proceedings in which the appellate jurisdiction of the High Courts is excluded for reasons of public policy. Nor is the expression 'in which no appeal lies thereto' susceptible of the interpretation that it excludes the exercise of the revisional jurisdiction when an appeal may be competent from the final order. The use of the word 'in' is not intended to distinguish orders passed in proceedings not subject to appeal from the final adjudication, from those from which no appeal lies. If an appeal lies against the adjudication directly to the High Court, or to another Court from the decision of which an appeal lies to the High Court, it has no power to exercise its revisional jurisdiction, but where the decision itself is not appealable to the High Court directly or indirectly, exercise of the revisional jurisdiction by the High Court would not be deemed excluded.

10. In a later decision in the case of Baldevdas v. Filmistan Distributors : [1970]1SCR435 , after referring to the judgment in S.S. Khanna's case the Supreme Court pointed out that a case may be said to be decided if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy. Every order in the suit cannot be regarded as a 'case decided' within the meaning of Section 115 of the Code of Civil Procedure.

11. We are concerned in the present case with a claim of privilege asserted by the State Government, which has been overruled by the trial Court. Such an order is not appealable under any of the provisions of the Code of Civil Procedure. It is undoubtedly true that from the final adjudication of the trial Court when an appeal is preferred by the aggrieved party a question as regards privilege having been wrongly disallowed can be agitated, but the very mischief which is sought to be prevented by the provisions of Sections 123 and 124 of the Evidence Act will be frustrated if a body like the State Government has to wait till the final appeal comes up for hearing before the appropriate Court. The object of claiming privilege is to safeguard the public interest and once due to an erroneous order passed by the trial Court the claim of privilege rightly asserted in respect of the document has been erroneously disallowed, disclosure of such a document will cause immense harm to public interest and even reversal of such a finding in a final appeal will not be able to minimise the damage to public interest which has been done. In such a case so far as the claim of privilege made by the State Government is concerned, the ruling of the trial Court disallowing such claim is a 'case decided' within the meaning of Section 115 of the Code and if such order is passed illegally or with material irregularity, then it will be always open to the High Court in exercise of revisional powers to interfere with such an order. Thus it is not possible for me to accept the preliminary contention of Mr. Paranjpe that a revision application against the impugned order is not competent.

12. In the result, the revision application is allowed. The Rule is made absolute. The impugned order passed by the trial Court is set aside and the claim made by the State Government in respect of privilege of a Note or report prepared by the Additional Chief Engineer on October 19, 1974 for consideration of the Minister is upheld and it is held that neither the State Government nor any of its public officers can be permitted or compelled to disclose this Note or the report made by the Additional Chief Engineer. So far as the costs of this Revision Application are concerned, the same will be costs in the suit before the trial Court.


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