Patna High Court
State Of Bihar vs Kasturbhai Lalbhai And Ors. on 6 December, 1977
Equivalent citations: AIR1978PAT76, AIR 1978 PATNA 76
ORDER C.N. Tiwari, J.
1. This revision application is directed against the order of the Subordinate Judge, Hazaribagh dated 28-4-76, by which he rejected the claim of privilege made by the State of Bihar (defendant No. 7) in respect of documents specified at item Nos. 2, 3, 6 and 7 of the application, dated 30-7-75 filed on behalf of plaintiffs of Title Suit No. 23 of 1968.
2. Opposite party Nos. 10 to 14 are plaintiffs in Title Suit No. 23 of 68. Another Title Suit No. 10 of 67 brought by opposite party Nos. 1 to 9 has been made analogous to Title Suit No. 23 of 68. Opposite party Nos. 1 to 9, who repre- sent the Swetambar Jain Sect are managing Seth Anandji Kalyanji Trust. They brought Title Suit No. 10 of 67 impleading six persons representing the Digambar Jain Sect as defendant Nos. 1 to 6 (two out of them are dead) and the State of Bihar as defendant No. 7 for a decla- ration that the Digambar Jain community has no right to make any construction of temple or Dharamshala etc. on the Parasnath hill and for a permanent Injunction restraining them from making any such construction on the hill and for mandatory injunction for removal of the construction already made. 5 members of the Digambar Jain Sect filed Title Suit No. 23 of 68 against the State of Bihar as defendant Nos. 1 and 9 plaintiffs of Title Suit No. 10 of 67 as remaining defendants challenging the agreement entered into by the State of Bihar with Swetambar Jain Sect in the year 1965 as null and void and not binding on the Digambar Jain Sect.
3. The case of the Swetambar Jain Sect in Title Suit No. 10 of 67 is that the Parasnath hill having an area of 23 sq. miles was purchased by Seth Anandji Kalyanji Trust from the ex-intermediary, the Raja of Palganj in the year 1918. The hill remained in possession of Seth Anandji Kalyanji Trust from 1918 to the year 1953. By notification dated 2-5-53 the proprietary interest of the Anandji Kalyanji Trust vested in the State of Bihar and subsequently the general notification of 1955 covered Hazaribagh district in which village Parasnath lay. On the issue of the notification of 1953 Seth Anandji Kalyanji Trust made several representations to the State of Bihar contending that the whole of the Parasnath hill was a religious institution and therefore, it did not vest in the State. There was an agree- ment dated 5-2-65 between the Trustees of Seth Anandji Kalyanji Trust representing the Swetambar Jain Sect and the State of Bihar by virtue of which an area of half a mile radious round about the temple on the hill was excluded from demarcation of the Forest Depart- ment. Out of the income of the whole of the Forest 40 per cent was to go to the State and the remaining 60 per cent to the Swetambar Jain Sect in lieu of compensation. The Digambar Jain Sect also claims right over the said hill including the right to construct Dharamshala and temples for installation of idols like that of Bhomiyaji and other deities, which the Swetambar Jain Sect does not approve. Hence, the aforesaid two Title Suits were filed by the Swetambar and Digambar Jain Sects respectively.
4. Defendants Nos. 1 to 6 of Title Suit No. 10/67 (Digambars) filed a peti- tion dated 17-5-72 requesting the Sub- ordinate Judge to summon the Secretary, Revenue Department to send entire minutes of discussions in connection with the memorandum submitted by the Jain community of India in respect of the vesting of the Parasnath Hill under the Bihar Land Reforms Act and also to send original letter, dated 7-10-66 written by S. P. Jain, Bharat Varshiya Digambar Jain Tirth Chhetra Committee, Bombay to the Secretary to Government of Bihar, Revenue Department. Another petition dated 1-7-72 was filed by plaintiffs of Title Suit No. 10 of 67 (Swetambar) requesting the Subordinate Judge to summon the head clerk, Revenue De- partment to produce original records of essential feature of the agreement of the year 1965 aforesaid and memorandum sent by Digambar Jain Community to the then Chief Minister of Bihar Sri K. B. Sahay. Both these petitions were disposed of by the Subordinate Judge by his order, 1-7-72, which was to the effect that while summoning the Secretary, Revenue Department to send the records mentioned in the petition dated 17-5-72 direction be given to him to send also the records mentioned in the petition of de- fendants 1 to 6 of Title Suit No. 10 of 1967.
5. The State of Bihar filed the fol- lowing documents in three volumes in pursuance of the aforesaid order dated 1-7-72.
(1) Vol. 1. File No. C/F-17020/57 converted as C. F. 1702/60 containing notes and discussions from July 1947 to De- cember 1960.
No. of pages note sheets 228 (Two hundred twenty eight) corr. Pages 403 (four hundred three) except pages 38 to 42, 108, 146 to 158 and 196 to 213. Loose sheets 114 below (Total pages 745).
(2) Vol. No. II. File No. 17020/64 containing note and discussions from September 1964 to May, 1965 No. of Pages--Note sheets 58 (fifty eight) except pages 32 to 39.
Corr. Pages-144 (one hundred forty four) except pages Nos. 67 and 91 to 99. Loose sheets-1 to 52 below.
(Total pages 254).
(3) Vol. No. III. File No. C/F- 17011/56 containing records, notes and discussion etc. from May 1965 to August 1966.
No. of pages. Note sheets-- 112 (one hundred twelve) Corr. pages 451 (four hundred fifty one).
Loose sheets 5 except pages 90 to 94, 196 to 201 and 254 to 259.
(Total pages 568).
These documents were ordered to be kept with the records vide order, dated 27- 11-73. On 2-3-74 the State of Bihar filed a petition for beeping the aforesaid documents in safe custody. The Subordinate Judge passed order on the same day to the effect that the documents be kept in sealed cover and the cover be sealed by the sheristadar in the pre- sence of the Government pleader and it the Government pleader did not ap-rjear to get the Documents kept in sealed cover, it would be his responsibility. On the same day a petition was filed by defendants Nos. 1 to 6 (Digambar) for permission to inspect the documents which had been ordered to be kept in safe custody. This petition of the Digambar was ordered to be kept on the record. According to defendants 1 to 3 (Digambar) they filed a petition before the Registrar, Civil Court for the inspection of the aforesaid documents and they inspected the same. Those documents appeared to have been kept under sealed cover by the Sheristadar a few days thereafter.
6. On 21-6-75 defendants 1 to 6 (Digambar) filed an application before the Subordinate Judge stating that defendants 1 to 6 of Title Suit No. 10 of 67 inspected the documents filed by the State on 4-3-74 by filing a written inspection slip before the Registrar civil court and it was prayed that those documents should be made available in Court to defendants 1 to 6 for being inspected. By order dated 22-7-75 the Subordinate Judge rejected this petition as it did not fulfil the requirements of Order II, Rule 18 of the Civil Procedure Code with the observation that the defendants might renew their prayer for inspection.
7. On 30-7-75 defendants 1 to 6 of Title Suit No. 10 of 67 filed two petitions one for direction to the State of Bihar to make discovery of the documents mentioned in that petition and another for permission to inspect the documents as per list appended to the petition. By order dated 12-8-75 the Subordinate Judge allowed the prayer for inspection of documents, but rejected their application for discovery of documents.
8. On 1-9-75 the State filed a petition for time to claim privilege in respect of the documents on the ground that the Assistant, who had been sent to Patna in this regard had not returned. On 15-11-75 the State filed a petition stating that in order that privilege may be claimed in respect of the documents, it was essential that the head of the department and the Secretary, Forest De- partment should read and consider those documents and therefore prayer was made for the return of the documents, which had been filed by the State. This petition was rejected vide order 25-11-1975.
9. On 5-11-75 the State filed an ap- plication for inspection of other own documents in court. This prayer was allowed and the Government Pleader inspected the documents. After inspection of the documents a petition was filed on behalf of the State supported by an affidavit sworn by the Secretary. Forest Department to the effect that the documents sought to be inspected are un- published official records relating to tha affairs of the State and their disclosure, i.e. inspection by defendants 1 to 6 will be prejudicial and injurious to public interest for the reasons stated in the affidavit, which is annexure '1' to the revision application. Defendants 1 to 6 filed a rejoinder dated 1-3- 76 to this affidavit sworn by the Secretary, Forest Department.
10. The learned Subordinate Judge, by his order dated 28-4-76 permitted defendants 1 to 6 of Title Suit No. 10 of 1967 to inspect all the documents men- tioned in the list filed along with their petition dated 30-7-75 except the documents at item No. 8, which was not available. It is against this order that this revision application has been filed,
11. This Revision Application was ad- mitted sometime before the Civil Procedure (Amendment) Act, 1976 came into force. Therefore, this revision application will be governed by Section 115 of the Civil Procedure Code as it stood prior to the amendment made by the Amending Act of 1976, One of the contentions raised on behalf of defendants 1 to 6 of Title Suit No. 10 of 1967 before the Subordinate Judge was that the right to claim privilege in respect of the documents was lost because no privilege was claimed by the State in respect of the documents at the time of the filing of the same. This argument was rejected by the learned Subordinate Judge, who observed:
"It has been further submitted on behalf of the defendant Nos. 1 to 6 of T. S. 10/67 that the claim for privilege against the inspection of the documents by them fey the State of Bihar is futile as the documents in question were allowed to be inspected by them and it was not claimed at the early stage of the filing of the documents. But I do not agree with the submission of the lawyer for the defendants Nos. 1 to 6 of T. S. 10/67 that the delay in claiming the privilege against the inspection of the document will disentitle the State of Bihar to claim privilege against the inspection if the documents are privileged documents. In my opinion, if the documents are privileged documents, the right to claim the privilege against their production or disclosure is not lost merely because it has not been done so at the time of filing the same in court or the same were inspected by the opposite party."
No counter-affidavit has been filed on behalf of the opposite party.
12. With regard to the impugned order allowing inspection of documents, it is urged on behalf of the State that this order of the learned Subordinate Judge is based on wrong assumption that no privilege had been claimed and no reason for privilege was stated by the State. It is said that as privilege was claimed in the affidavit (annexure '1') the learned Subordinate Judge acted illegally in rejecting the claim of privilege made by the State Government without seeing the documents concerned. There is force in this contention. With regard to the question whether or not the documents mentioned at sls. 2, 3, 6 and 7 in respect of which privilege has been claimed by the State under Section 123 of the Evidence Act are unpublished official records relating to any affair of the State, the learned Subordinate Judge has observed:
"I have shown above that the State of Bihar defendant No. 7 has not claimed any privilege against the inspection of the documents described in item Nos. 2, 3 and 6 of the list of the petition dated 30-7-75 nor it has given any reason why it is apprehended that their disclosure or inspection by defendant Nos. 1 to 6 of T. S. 10/67 is injurious or detrimental of the public interest. As such the documents against the inspection of which, the privilege has been claimed by the State of Bihar defendant No. 7 of T. S. No. 10/67 are not privileged documents."
Annexure '1' to the Revision application is affidavit sworn by the Secretary of the Government of Bihar, Forest Department claiming privilege in respect of the documents (sls. 2, 3, 6 and 7 of the petition dated 30-7- 75). This is an affidavit objecting to the inspection of the documents at sls. 2, 3, 6 and 7. No privilege has been claimed in respect of some of the documents which are said to have already been exhibited. It seems that the learned Subordinate Judge did not apply his mind to the affidavit sworn by the Secretary of the Forest Department (annexure 18) and committed error of record in observing that the State did not claim any privilege against inspec- tion of documents mentioned at sls. 2, 3 and 6 of the petition dated 30-7-75 filed on behalf of defendants 1 to 6.
13. The documents were filed by the State Government in three bundles. Those three bundles appear to have been described as three volumes in the impugned order. Those three bundles of documents filed by the State contained notes made by the Secretary and other officers of the department as well as the minutes of the Minister on sheets of the file which are commonly known as notesheets. Those bundles also contain papers which are commonly known as correspondence. Note- sheets and correspondence are separately page-marked. The petition filed by defendant Nos. 1 to 6 for inspection of the documents does not clearly state whether the pages of the documents required to be inspected are pages of note-sheets or pages of correspondence Ground No. XI of the Revision application runs thus:
"For that the learned court below was wrong in not applying its mind to the list of documents filed together with the documents contained in the three columns later kept in sealed box wherein the learned lower court could have found that the documents contain page numbers, mainly of two types viz. note- sheets pages and correspondence page's and learned lower court should have held that the petition of the Digambar Jains was not maintainable, in absence of a mention whether the page numbers given in that petition were page numbers of the note-sheet or page numbers of the correspondences made."
14. It is not clear from the impugned order whether the documents to be Inspected, which have been described by page numbers in the application dated 30-7- 75 are note-sheets or correspondences. The learned Subordinate Judge before passing the impugned order should have satisfied himself whether the documents sought to be inspected are the notes or minutes or whether they are correspondences.
15. Section 123 of the Evidence Act lays down:--
"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."
When the legislature has refrained from defining the affairs of the State, it is inexpedient to define this expression. It means matters of a public nature, with which the State is concerned, or the disclosure of which will be prejudicial to the public service, when the State is a party to the litigation and documents relate to commercial or contractual activities of the State privilege can be claimed in respect of such documents but privilege should not be claimed unadvisedly, lightly or capriciously. Law provides for the court to adjudicate on the merits of the claim. In the instant case, as pointed out above, the learned Subordinate Judge has committed error of record in observing that the State has not claimed privilege in respect of the documents mentioned at sls. 2, 3, 6 and 7. Therefore, there is force in the argument of the learned counsel that the learned Subordinate Judge has committed error and material irregularities in adjudicating on the merits of the claim of privilege made by the State Government. In view of the order that I propose to pass, I do not wish to express any opinion on the merit of the claim of privilege made by the State Govt.
16. In State of Uttar Pradesh v. Raj- narain (AIR 1975 SC 865) their Lordships observed (at p. 876):
"If the Court is satisfied with the affidavit evidence that the document should be protected in public interest from production the matter ends there. If the Court would yet like to satisfy itself, the court may see the document. This will be the inspection of the document by the Court. Objection as to production as well as admissibility contemplated Section 162 of the Evidence Act is decided by the Court in the enquiry....."
17. In view of the aforesaid discussions the application is allowed and the impugned order dated 28-4-76 is set aside and the case is sent back to the learned Subordinate Judge for fresh decision in accordance with law in the light of the observations made above.