R.S. Pathak, J.
1. In a suit filed by the petitioner against the State of Uttar Pradeah for an injunction restraining it from realising an amount under a forest contract, the petitioner applied for inspection and production of certain documents in the possession of the State Government and its officers In opposition to the application, the State claimed privilege in res-pect of the documents and two affidavits were filed before the trial court, one by the Conservator of Forests (Annexure 2 to the counter affidavit) and the other by the Chief Conservator of Forest (Annexure 3 to the counter affidavit) The application was rejected by the trial court by its order of March 17, 1962 (Annexure K to the writ petition) by the following order:
Affidavit filed by the defendant, along with this affidavit an application has been made on behalf of the defendant that the plaintiff he not allowed to Inspect the file
A perusal of Section 123 of the Indian Evidence Act makes it clear that it is for the Head of the Department to permit or not to permit giving in evidence any document which are unpublished official record relating to the affairs of the State. The affidavit filed today proves that the documents which are claimed as secret are unpublished official records relating to the affairs of the State. In view of the affidavit the documents cannot be tendered into evidence 282/C2 is therefore allowed.'
2. The petitioner is aggrieved by the order and applies for certiorari
3. The petitioner contends that the trial court did not apply its mind to the application before it and merely accepted the affidavit in which it was claimed that the documents were unpublished official records relating to the affairs of the State It is alleged that the trial court should have determined whether in fact upon the material before it the documents were of the class which could be said to relate to the affairs of the State. There is substance in the contention The law on the point was laid down by the Supreme Court in State of Punjab v Sodhi Sukhdev Singh, AIR 1961 SC 493.
The Supreme Court, after analysing Section 123 of the Evidence Act declared that while it was not open to the Court to hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in question and that that was a matter for the authority concerned to decide, the Court was competent, and indeed was bound, to hold a preliminary enquiry and determine the validity of the objection to its production and that that necessarily involved an enquiry into the question as to whether the evidence related to an affair of the State under Section 123 It is clear that the trial court was bound to consider ob jectively whether the material before it justified the inference that the documents in question related to the affairs of the State That was a matter into which the trial court was bound to enter and to arrive at its own decision. What documents can be said to relate to the affairs of the State was also discussed by the Supreme Court in the aforesaid case and after observing that the affairs of the State would ordinarily refer to matters of political or administrative character whose disclosure would affect the national defence or publicsecurity or good neighbourly relations, it further remarked.
'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.'
It would, therefore seem that if the documents related to questions of public policy, they could be said to relate to the affairs of the State. Now, in the instant rase all that the trial court had before it were the affidavits of the Chief Conservator of Forests and the Conservator of Forests and those affidavits merely said that the file contained several letters written by the Head of the Department to the subordinate officers of the department and vice versa and between that department and other departments and they were, therefore unpublished official records and were secrets of the State They further stated that the account books and audit reports were unpublished official records and were secrets of the State It is difficult to say that these averments in the affidavits constitute material from which it can he inferred that the documents in question refer to affairs of the State, The averments merely came to this that there are several letters on the files which have been written by certain authorities to other authorities Nothing is disclosed as to the character of the letters from which it can be inferred that they relate to affairs of the State. Moreover, the affidavits have not been made bv the Secretary of the Department. The Supreme Court in the aforesaid case expressly pointed out that having regard to the seriousness of the question for determining whether in a given set of circumstances the claim to privilege should he upheld it was necessary that-
'the privilege should be claimed generallyby the Minister in charge who is political headof the department concerned; if not, the Secretary of the department who is the departmental head should make the claim; and the claimshould always be made in the form of an affidavit When the affidavit is made bv theSecretary the Court, may in a proper case, require an affidavit of the Minister himself. Theaffidavit should show that each document inquestion has been carefully read and considered, and the person making the affidavit issatisfied that its disclosure would lead to public injurv If there are a series of documentsincluded in a file it should appear from theaffidavit that each one of the documents, whosedisclosure is objected to has been duly considered bv the authority concerned'
4. It does not appear from the affidavits mentioned above that the several documents onthe files were individually read and considered before the claim to privilege was made. It appears that the claim was made casually, and in my opinion the material before the trial court was inadequate for the purposes of sustaining the inference that the. documents re lated to affairs of the State.
5. Considerable reliance has been placed by learned counsel for the respondents upon the supplementary counter affidavit of M. A. Quralshi, Secretary of the Forest Department, but there is nothing to show that the affidavit was filed before the trial court.
6. In the circumstances, the order of the trial court cannot be sustained.
7. An objection was raised by learned counsel for the respondents to the grant of relief upon this petition It is pointed out that the petitioner should have allowed the suit to proceed to a decree and in case the suit was dismissed the petitioner could have proceeded in appeal and agitated this question in the appeal. Alternatively, it is said, the petitioner could have applied in revision under Section 115 of the Code of Civil Procedure against the order. The question whether relief should be refused on the ground that an alternative remedy exists is a matter resting in the discretion of the Court. It appears to me that the order impugned by the instant petition is ex facie bad. The trial court plainly has not exercised its jurisdiction in accordance with law. The objec-tion raised on behalf of the respondents is rejected.
8. The petition is allowed. A writ in thenature of certiorari shall issue quashing theorder dated March 17, 1962 made by the trialcourt. The trial court will now dispose of theapplication of the petitioner in accordance withlaw. The petitioner is entitled to his costs.