Monopolies and Restrictive Trade Practices Commission
Registrar Of Restrictive Trade ... vs Baroda Rayon Corporation Ltd. And Ors. on 5 December, 1974
Equivalent citations: [1976]46COMPCAS192(NULL)
ORDER
1. On 7th December, 1973, the respondent applied for an order for discovery and inspection against the applicant, namely, Registrar of Restrictive Trade Agreements. On 2nd September, 1974, the Commission made an order to the effect that "the Registrar will make an affidavit of documents within two weeks from today and furnish a copy thereof to the respondents. Inspection to follow forthwith". Pursuant to the above order, the Registrar made and filed an affidavit of documents dated 13th September, 1974. In Part II of the Schedule to the said affidavit, the Registrar has disclosed the following four documents and claimed privilege regarding the said documents on the ground, inter alia, that their disclosure will not be in the public interest. The said documents are :
1. Views of one of the actual users of viscose filament yarn.
2. Secret letter from the Ministry of Foreign Trade to the Registrar of Restrictive Trade Agreements, New Delhi, regarding the agreement between viscose filament yarn spinners and actual users.
3. Letter from the office of the Textile Commissioner, Bombay, to the Registrar of Restrictive Trade Agreements, New Delhi, regarding textile industry.
4. Letter from the Director of Handloom and Textiles, Madras, to the Registrar of Restrictive Trade Agreements, New Delhi, regarding agreement between viscose spinners and actual users.
2. On 12th November, 1974, the respondents made the application with which we are dealing now. In the application they have prayed that the applicant be called upon to specify with particulars the four documents referred to by him in Part II of the Schedule to his affidavit dated 13th September, 1974, with a view to identifying the documents mentioned therein. Secondly, the respondents have prayed that the applicant be called upon to produce the said documents for inspection of the respondents. The Registrar has resisted the application on various grounds. The grounds of objection to the production of the said documents are not fully set out in the affidavit of documents. All that the affidavit states is "that their disclosure will not be in the public interest". We have permitted the Registrar to file two more affidavits--one dated 22nd November, 1974, and the other dated 28th November, 1974. In the affidavit dated 22nd November, 1974, the Registrar has stated that he had put the documents in Part II of the Schedule to his affidavit in a sealed bundle marked "X" for the purpose of identification. He has also stated that item No. 1 in Part II bears no date and he has not mentioned the dates of the other documents to maintain their secrecy. He has further stated that he had applied his mind to the contents of the said documents and has formed an opinion that the disclosure of those documents would be injurious to public interest. According to him it will not only deter persons confidentially communicating complaints about the existing restrictive trade practices, etc., but will further inhibit collection of necessary information to be able to decide whether or not to initiate a proceeding under Section 10 of the Monopolies and Restrictive Trade Practices Act (hereinafter referred to as "the MRTP Act"), as also for purposes of proper prosecution of the case thereafter. He further states that the said documents do not in any manner advance the case of the respondents nor are they such as to damage the case of the Registrar, and that the Registrar was advised to disclose them merely because they pertained to the case in a general way. The Registrar also states that he was only an advocate of public interest and was not in the position of an ordinary litigant either for the purpose of an order of discovery or for being compelled to produce the documents which he finds in public interest not proper to disclose. In the affidavit dated 28th November, 1974, the Registrar has stated that although item No. 1 bears no date, it was received by the then Registrar on 13th July, 1972, and that the said item was in the hands of the Registrar before the proceedings under Section 10(a)(iii) of the Monopolies and Restrictive Trade Practices Act, 1969, were initiated by the then Registrar by his application dated 23rd September, 1972. With regard to item No. 2, the Registrar has stated that the said letter was marked "SECRET" and was communicated to the Registrar in official confidence. With regard to item Nos. 3 and 4, the Registrar states that he had already written to the departments from whom these letters were received to let the Registrar know if they would permit him to disclose them in case of necessity but no reply had been received up to the date of the affidavit. The Registrar further states that in his opinion public interest would suffer by the disclosure of the said documents.
3. We have gone through all the four items in Part II of the Schedule to the Registrar's affidavit. With regard to the privilege claimed by the Registrar in respect of the several documents, we have to observe as under :
Order XI of the Code of Civil Procedure has been made applicable to the proceedings before the Commission by Regulation 77 of the Monopolies and Restrictive Trade Practices (Commission) Regulations, 1974. Order XI, Rule 13, and Form No. 5 in Appendix C of the Code of Civil Procedure provide that the party making the affidavit of documents shall state the grounds of objection to production of documents. The Code of Civil Procedure does not set out the grounds on which the production of documents may be resisted as of right. In Mulla's Commentary on the Code of Civil Procedure these grounds of objection have been summarised under Order XI, Rule 13, of the Code of Civil Procedure, under three broad heads:
(1) a party is not bound to produce for the inspection of his opponent documents which "of themselves evidence exclusively" the party's own case or title ;
(2) a party is not bound to produce any confidential communications between him and his legal adviser ;
(3) a party is not bound to produce any public official document if its production would be injurious to public interest.
4. It appears that these grounds of objection have been adopted in India from the common law pertaining to civil procedure in England and have partly grown by judicial pronouncements in India. The Registrar has not relied on the first two grounds of objection. He has merely relied on the ground that the production of these documents would be injurious to public interest. Up to 1965, in England, the objection as to the public interest was based on common law. In the Rules of the Supreme Court framed in 1965, for the first time an express provision was made in Order XXIV, Rule 15, R. S. C., which pertains to discovery and inspection of documents, and provides that :
"15. The foregoing provisions of this Order shall be without prejudice to any rule of law which authorises or requires the withholding of any documents on the ground that the disclosure of it would be injurious to the public interest,"
5. We might also mention that Sections 120 to 132 in Chapter IX of Part III of the Evidence Act make provision as to when certain witnesses cannot be compelled to answer questions or when they may not be permitted to give evidence about or disclose certain types of communications. With regard to documents Section 162 of the Evidence Act provides that a witness summoned to produce documents shall, notwithstanding any objection to their production, produce them in court and raise the objection before the court, which objection the court shall adjudicate upon. In determining questions of production of documents for inspection, the court would undoubtedly follow the provisions of Sections 120 to 132 of the Evidence Act. But we are also of the view that these sections are not exhaustive of the grounds of objection to inspection. Several of the grounds of objection listed in Mulla's Commentary on the Code of Civil Procedure referred to above are not covered by the Evidence Act but, as we have observed above, have come to be adopted in India by judicial pronouncements based on English common law. There may, therefore, be cases where the documents may not fall under these sections of the Evidence Act but the court will not compel production or inspection of such documents. For example, the judicial pronouncements are that a party is not bound to produce for inspection by his opponent documents which of themselves evidence exclusively his own case or title. Similarly, there may be cases involving public interest not covered by the above provisions in the Evidence Act. There may be documents, which may not fall under the aforesaid provisions of the Evidence Act but their production may still be injurious to public interest within the meaning of the provisions of Order XI. This is also obvious from the provisions of Rules 15 and 18 of Order XL Rule 15 provides that every party to a suit shall be entitled at any time to give notice to any other party in whose affidavit, reference is made to any document to produce such document for inspection of the party giving such notice or his pleader and any party not complying with such notice shall not afterwards be at liberty to put in such document in evidence on his behalf in such suit unless he shall satisfy the court that such document relates only to his own title--he being the defendant to the suit or that he had some other cause or excuse which the court shall deem sufficient for not complying with such notice, in which case the court may allow the same to be put in evidence on such terms as to costs as the court shall think fit. Rule 18 provides that where a party served with a notice under Rule 15 omits to give inspection or objects to give inspection the court may on the application of the party desiring it make an order for inspection provided that the order shall not be made when and so far as the court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs. It would appear that the court has judicial discretion in the matter of ordering inspection.
6. Mr. A.H. Desai for the respondents contended that the above provisions of the Evidence Act are exhaustive of the grounds of objection to inspection. In view of the above discussion we are afraid we cannot accept the above contention. They are not even exhaustive of the grounds of objection based on public interest.
7. Coming to item No. 1, objected to by the Registrar, his objection is that the disclosure of the document would deter persons from confidentially communicating to the Registrar complaints about the existence of the restrictive trade practices and will inhibit collection of necessary information leading to initiation of proceedings under Section 10. It is true that this information was received by the Registrar prior to his initiating the present proceedings under Section 10(a)(iii) of the Act. There is no provision of the Evidence Act which would protect the disclosure of this document. Even Section 125 of the Evidence Act protects only the source of information as to the commission of an offence with regard to certain matters but not the information itself. This provision would not protect the Registrar from disclosing even the source of his information. But the Registrar has not relied upon Section 125 of the Evidence Act. Mr. Sanghi on his behalf has invited our attention to the case of Rogers v. Gaming Board for Great Britain, [1973] AC 388 (HL) decided by the House of Lords in June, 1972. In that case, Rogers made an application to the Gaming Board of Great Britain for certificates of consent in relation to five gaming clubs. In answer to request from the Board for information the Assistant Chief Constable of the County wrote a letter to the Gaming Board setting out the facts showing that Rogers was not a fit person to get such consent. The application for consent was refused. Rogers commenced proceedings for criminal libel in respect of the letter against the Assistant Chief Constable. A witness summons was issued to the Gaming Board for production of the letter. The Home Secretary applied for an order of certiorari to set aside the two witness summonses, one directed to the Assistant Chief Constable and the other to the Secretary of the Gaming Board to produce certain documents including the letter from the Board to the Assistant Chief Constable requesting for information and the reply of the Assistant Chief Constable. The Board made a similar application in relation to the summons directed to their Secretary. On the Home Secretary's application the Divisional Court ordered that the two witness summonses should be set aside, and made no order on the Board's application. Rogers appealed to the House of Lords where it was held that public interest required that the letters should not be produced since if the information given to the Board was liable to be disclosed, it might be withheld and they would thereby be hampered in the discharge of the duty imposed on them by a statute to identify and exclude persons of dubious character and reputation from the privilege of obtaining a licence to conduct a gaming club. The result was that even on the Board's application, the witness summons against its secretary was set aside. In our opinion, this case applies to the present situation. The Registrar is a public officer appointed under Section 34 of the Monopolies and Restrictive Trade Practices Act for maintaining a register of agreements and for performing the other functions imposed on him by the Act. One of the functions imposed on him by Section 10 of the Act is to make applications to the Commission about the restrictive trade practices. The Registrar has, therefore, to perform certain statutory functions. If the information given to him with regard to restrictive trade practices was liable to be disclosed, it might be withheld and the Registrar would thereby be hampered in the discharge of the duty imposed on him by the statute to make applications to the Commission in respect of restrictive trade practices. There are acute shortages of consumer goods and raw materials in the country and any person furnishing information to the Registrar is liable to be victimised by the producers and suppliers by refusing or withholding supplies from him. In our opinion, public interest requires that the complaints made by such informants should not be produced for inspection if the Registrar does not rely upon such communications as evidence at the hearing. If he produces the complaint in evidence the respondents will certainly be entitled to inspection of it.
8. Our attention was invited to a judgment of the Supreme Court in the case of State of Punjab v. Sodhi Sukkdev Singh, [1961] 2 SCR 371. In this case, the respondent had instituted a suit against the State of Punjab for a declaration that his removal from service on April 7, 1973, was illegal and filed an application under Order XI, Rule 14, Code of Civil Procedure, for production of certain documents. The State of Punjab objected to the production of the said documents claiming privilege under Section 123 of the Evidence Act. The Chief Secretary of the State filed an affidavit giving reasons in support of the claim. The question was whether having regard to the true scope and effect of the provisions of Sections 123 and 162 of the Act, the claim of privilege raised by the State was sustainable. It was held in this case that the considerations in allowing production of documents which might arise when a document is produced in a court under Section 162 of the Evidence Act would be the same as the objection to inspection of documents under Order IX, Rules 15 and 19 of the Code of Civil Procedure. The court observed that the grounds of objection are stated in Chapter IX of Part III of the Evidence Act. In this case, the court was dealing only with objection to production under Section 123 of the Evidence Act. It was neither necessary for the court to hold that there can be no objections to the production of documents beyond those set out in Chapter IX of the Evidence Act nor did the court in fact so hold.
9. As we have observed above, the scope of objections under Order XI is much wider than the provisions of Chapter IX of the Evidence Act and there may be cases which may not fall under that Chapter but nonetheless it would be against public interest to order disclosure of certain documents on the ground of public interest.
10. We might also observe that even the existing judicial pronouncements on instances of public interest cannot be exhaustive. Public interest cannot be treated like an old woman past the age of child bearing. In an ever evolving society new legislation is likely to be passed and judicial pronouncements will keep on deciding new instances of public interest in the circumstances of the new situations arising from time to time. In England also prior to the decision of the House of Lords in Rogers' case, [1973] AC 388 (HL) disclosure and inspection on grounds then existing on the basis of common law could not have been resisted, on the application of Rogers.
11. We are, therefore, of the view that the Registrar is not bound to produce item No. 1 as its production would be injurious to public interest.
12. With regard to item No. 2 we find on inspection of the letter from the Minister of Foreign Trade to the Registrar that this letter is marked "SECRET". On reading the said letter also, we find that the communication was made to the Registrar in official confidence. The Registrar has made an affidavit that he considers that public interest would suffer by the disclosure of the said communication. On this point, his affidavit is conclusive. We are also of the view that the privilege is not claimed unreasonably. We, therefore, cannot allow disclosure of item No. 2.
13. With regard to items Nos. 3 and 4, these letters are not only not marked confidential, but, on going through the letters we find that there is nothing confidential in the subject-matter thereof. The Registrar states in his latest affidavit that he has asked the writers of these letters whether they have any objection to the production of these letters. Even assuming that these officers write stating now that these letters were confidential communications, we are of the opinion that such ex-post facto opinion would not matter. Apart from this, we are of the view that there is nothing of a confidential nature in these communications.
14. In the result, we hold that items Nos. 1 and 2 need not be produced for inspection of the respondents. We further hold that the Registrar do produce items Nos. 3 and 4 for inspection of the respondents. The Registrar will also file in the office of the Commission the dates of items Nos. 3 and 4 and communicate the same to the respondents.
15. In view of the fact that both the parties have partly succeeded, there will be no order as to costs.