V.D. Misra, J.
(1) The plaintiff had summoned file No. E/15 from defendant No. 2 Along with other documents. Public Witness . 9, an assistant in the record room of the Dda brought the file in a sealed cover and claimed privilege. Affidavit of Mr. Jagmohan, Vice Chairman of the D.D.A., was filed. The relevant portion is :
'THATI have carefully read and seen the documents placed in the said file and have come to the conclusion that these are unpublished official records relating to affairs of State and their disclosure will cause injury to the public interest for the reasons : (a)-documents are office nothings...reports of officers... opinions... and records pertaining to public policy, (b) That documents in said file are privileged U/S 123 of Evidence Act as these relate to affairs of State...'
(2) The plaintiff filed an application (I. A. No. 1189/72) opposing privilege claim and prayed for cross examination of Mr. Jagmohan. This application was opposed by Defendant no. 2 who inter alias stated that the privilege claim is to be decided on the basis of affidavit on record. It appears that nobody pressed for the decision of this application because thereafter the plaintiff made application I. A. No. 515/73. The plaintiff while opposing the privilege claim submitted that the file in question has been seen by one Mr. Vishal Chand whose affidavit was annexed to the application. Prayer was also made to serve interrogatories on Mr. Jagmohan. This application was decided by Avadh Behari, J. on 25.9.73 who held that it was not necessary to call upon Mr. Jagmohan to answer interrogatories and that interest of justice could be served if Mr. Jag Mohan made a further affidavit in opposition to Vishal Chand's affidavit. The result was that Mr. Jagmohan swore an affidavit on 7.2.74.
(3) During the course of arguments Mr. Keshav Dayal, counsel for defendant no. 2 stated that the claim of privilege made by Mr. Jagmohan by his first affidavit was U/S 123 as well as U/S 124 of Evidence Act. The phraseology used in the affidavit is that pri- vilege is claimed U/S 123 only. This is further clear by the last line where specifically Mr. Jagmohan stated that he was withholding permission U/S 123 of the Evidence Act. In other words Mr. Jagmohan was not at any time claiming privilege U/S 124 of Evidence Act and thus I have to decide the question U/S 123 only.
(4) The ambit of S. 123 of the Evidence Act was decided by the Supreme Court in State of Punjab Vs . Sodhi Sukhdev Singh : 2SCR371 . Gajendergadkar, J. speaking for the majority held 'that the Court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in respect of which the privilege is claimed U/S 123. That is a matter for the authority concerned to decide ; but the Court is competent, and, indeed is bound, to hold a preliminary enquiry and determine the validity of its objections to its production, and that necessarily involves an enquiry into the question as to whether the evidence relates to an affair of State U/S 123. In this enquiry the court has to determine the character or class of the document. If it comes to the conclusion that the document does not relate to affairs of State then it should reject the claim for privilege and direct its production.'
(5) While discussing the ambit of expression 'affairs of State' the definition given by Khosia, J, in Governor General v. H. Peer Mohd. Air 1950. E. Pun. 228, was found unsatisfactory and it was observed. 'The inevitable consequence of the change in the concept of the function 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 relating to such activities undertaken by the State in pursuit of public policy of social welfare are also apt to claim the privilege of documents relating to affairs of State.' Keeping in view these observations I have thus to hold an enquiry, which is my duty, to find out whether the file in question relates to affairs of State.
(6) The first affidavit of Mr. Jagmohan does not give an inkling about the public policy to which the documents are stated to relate. The affidavit of Vishal Chand shows that he inspected the file in question while he was making a search of old records of property in suit. It has been suggested by Mr. Keshav Dayal that no details of inspection were given in the affidavit and no details were available with the office, so nothing could be said about this aspect. It is thus suggested that Vishal Chand might have surreptiously seen the records or might have come to know of the contents of this file through some source. I will thus not pay much attention to the fact of this inspection. However in answer to the allegations made by Vishal Chand about the contents of that file, it was stated by Mr. Jagmohan that the file contains 12 pages and includes some nothings and expressions of opinions Along with a letter from Mr. H. Will Cock, the then Superintending Engineer. This letter is dt. 3-9-1932, and it makes a reference to the Building line of a plan which is not now on this file. Mr. Jagmohan further states that this is the last letter on the file. Whereas Mr. Vishal Chand in his affidavit categorically states that there is no reference to any matter or affairs of State in the entire file but it relates to particulars of properties which were owned by the Government. Mr. Jagmohan, while generally denying the averments of Vishal Chand, asserts specifically that the notes and correspondence passed between the Government Officers is an unpublished record the disclosure of which would be against the public interest etc He does not give any idea about the public policy which was involved. Thus I am left with a bald statement of Mr. Jagmohan that the file relates to affairs of State relating to some public policy. During the course of arguments I had suggested to the parties whether I should not summon Mr. Jagmohan for cross examination to find out the nature of public policy with which this file deals. Mr. Keshav Dayal suggested that it was not necessary to do so since he relies entirely on the affidavits which are on record in this case.
(7) Though the Government is entitled to claim privilege U/S 123 of Evidence Act, it is their duty to make out a case for privilege before it can be upheld. Whether disclosure of documents is against public interest or not, is within the sole discretion of the Government and the Courts cannot decide that question. However the question whether any document relates to affairs of State or any public policy which amounts to an affair of State has to be decided by the Court by holding an enquiry and the last word is not with the Government It is the duty of the Government to give indication of the public policy which is claimed to be an affair of State in order to enable the Court to decide whether it amounts to an affair of State in terms of S. 123 of Evidence Act. Mr. Jagmohan for reasons best known to him has chosen not to disclose the public policy which may be said to relate to affairs of State and thus I have to hold that no case of privilege U/S 123 is made out. Claim disallowed.