Input:
297 of 1951.
Petition under article 32 of the Constitution of India for enforcement of fundamental rights by quashing the orders of the Deputy Commissioner and House Rent Controller, Banga lore, allotting the petitioner 's house to the 3rd respondent and for taking forcible possession of the same.
S.K. Venkataranga Iyengar for the petitioner.
A.R. Somanatha Iyer, Advocate General of Mysore, (R. Ganapathy Iyer, with him) for the respondent No. 1.
K. Ramaseshayya Chowdhury for the respondent No. 2. 1952.
May 26 The Judgment of the Court was delivered by 746 CHANDRASEKHARA AIYAR J.
This is an application under article 32 of the Constitution for quashing the orders of the Deputy Commissioner and House Rent Controller, Banga lore, (2nd respondent) allotting house No. 291, Fifth Main Road, Gandhi Nagar, Bangalore City, for the use of Sri Aswathanarayana Rao (3rd respondent) and taking forcible possession of the same.
The State of Mysore has been im pleaded as the first respondent, The facts are these.
The petitioner D.K. Nabhirajiah is a merchant and is the owner of the premises aforesaid.
After lengthy litigation, the previous tenant of the premises vacated it on 1st September, 1949.
On 2nd Septem ber, 1949, the petitioner notified the vacancy to the 2nd respondent as required by law but added that he wanted the premises for his own use to set up one.of his grown up sons in a business in electrical goods.
The third respondent Aswathanarayana Rao however wanted the house for a chil dren 's school which he was running under the name of Bala Mandir and so he not only applied to the Rent Controller for allotting to him that house but also moved the Minister for Law and 'Labour for the same purpose.
The second respondent made an order on 13th September, 1949, in the following terms: "With reference to your vacancy report in respect the above place you are informed under clause 3 (2) of the Mysore House Rent and Accommodation Control Order, 1948 that the building is required for the occupation of Balamandira Home for the children and for residential use of the Direc tor.
You are therefore directed under clause 3 (4) of the Mysore House Rent and Accommodation Control Order, 1948 to hand over possession of the above house to the said Sri Aswathanarayana Rao, Director, Balamandira.
" By an order dated 20th September, 1949, made on an appli cation by the petitioner dated 16th September, 1949, the Deputy Commissioner refused to reconsider the allotment and required the petitioner to give effect to the same at once and deliver possession to the allottee, 747 The petitioner preferred an appeal to the Commissioner of Labour who is the House Rent Control Appellate Authority and obtained a stay, but the appeal was eventually dismissed and the said order vacated on 28th December.
He filed a Revision Petition No. 97 of 1949 50 before the Government of Mysore but without success and the Government declined to interfere by their order dated 14th March, 1950.
He then resorted to the High Court of Mysore by means of a petition under section 45 of the Mysore Specific Relief Act.
This again was dismissed on the ground that the party who seeks to obtain an order under the said section cannot do so on the allegation that the statute which enjoins the doing or for bearing of the act is itself illegal or ultra vires.
Applications moved under article 226 of the Constitution in the course of the same proceedings also failed.
This was on 5th January, 1951.
Some intermediate steps may now be set out.
The third respondent complained that he had not been given possession.
On this complaint, the second respondent passed an order on the 20th March, 1950, to the following effect : "Sri Aswathanarayana Rao, the allottee of the above house, has reported that you have not handed over possession of the house to him.
You are required to show cause immedi ately why you should not be prosecuted for failure t0 obey the order.
Please note that if the house is not handed over to the allottee, action will be taken under clause 3 (6) to take forcible possession of the house through police.
" The petitioner lodged a protest against this order pointing out that the House Rent Accommodation Control Order did not vest the Controller with jurisdiction to allot the house, but on 23rd March, 1950, he received the following reply: "Your letters under reference have been examined care fully.
It is not correct to say that allotment of a house to any party (private)is illegal.
Clause 3 of 97 748 the Mysore House Rent Control Order, 1948, is amended to include any person also.
I do not find any other reason except that you are evading to give possession to the allot tee.
You are hereby finally warned that if possession is not given to the allottee action will be taken to prosecute you and take forcible possession of the house.
" On 11th April, 1950, the second respondent made the following order: "Whereas premises No. 291, Fifth Main Road, Gandhi Nagar was allotted to Sri Aswathanarayana Rao of Balamandira The owner 's appeal before the Labour Commissioner and Government having been rejected the owner filed a petition before the High Court of Mysore who passed an interim order and which was vacated by the order referred to above.
A subsequent appeal before the Labour Commissioner has also been reject ed and stay vacated in Endorsement in H.R.C. 1/1940 50 dated 10th April, 1950.
I therefore direct the owner Sri D. K Nabhirajiah to hand over possession of the said house to Sri Aswathanarayana Rao at once, failing which, I authorise the Superintendent of Police, Bangalore City or any other offi cer empowered by him in his behalf to take possession of the house and hand over to the allottee, Sri Aswathanarayana Rao." As this order was not obeyed by the petitioner, forcible possession was taken of the house with police help and the third respondent was given possession.
The petitioner seeks to quash the above mentioned orders of the second respondent dated 20th September, 1949, 20th March, 1950, 23rd March, 1950, and 11th April, 1950.
The prayer in the petition is thus worded: "for quashing the orders of the second respondent No. 522 Acc.
(b) 49 dated 20th September, 1949, confirmed by Appellate Authority in H.R.C. Appeal No. 117 of 1949 1950 dated 28th December, 1949, and by the Government of Mysore in H.R.C. Revision Petition No. 97 of 1949 1950 dated 14th March 749 1950, and also the subsequent orders of the second respondent No. 562 Acc.
(b) 50 dated 20th March, 1950, 23rd March, 1950, and 11th April, 1950, respectively allotting and taking over forcible possession of the property No. 291, Fifth Main Road.
Gandhi Nagar, Bangalore City, for the use of a private individual, the third re spondent, and for costs.
" The contention of the petitioner is a threefold one, namely : (1) The order allotting the premises to the third re spondent contravenes the provisions of article 31, sub clause (2) and article 19 (1} (f) of the Constitution.
(2) The order is discriminatory and offends article 14 of the Constitution.
(3) Under the Defence of India Rules under which the Accommodation Control Order was made, the allotment can only be of houses available for letting.
It will be convenient here to set out the relevant legis lative provisions.
The Mysore House Rent and Accommodation Control Order, 1948, (hereinafter referred to for the sake of convenience as the Control Order) was made in exercise of the powers conferred by clause (bb) of sub rule (2) of Rule 81 of the Defence of India Rules as applied to Mysore, and it came into force with effect from 1st July, 1948.
Clause 3 of the Control Order provides, subject to two exceptions, for notice being given by the landlord to the Controller within seven days after a house becomes vacant.
Subclause (2), as it originally stood, was in the following terms : "(2) If within ten days of the receipt by the Controller of a notice under sub clause (1), the Controller does not intimate the landlord in writing that the house is required for the purposes of the Government of Mysore, or of the Central Government, or of the Government of an Indian Prov ince or State, or of any local authority or public body, or of any educational or other public institution for the occupation of any 750 officer of any such Government authority, body or institu tion, the landlord shall be at liberty to let the house to any tenant, or if the Controller, on application made by the landlord permits the landlord to do so, to occupy the house himself.
" By a notification dated 4th May, 1949, the words: "or for the occupation of any individual" were added after the words "body or institution" in the said sub section.
The sub clause as amended runs thus: "(2) If within ten days of the receipt by the Controller of a notice under sub clause (1), the Controller does not intimate the landlord in writing that the house is required for the purposes of the Government of Mysore, or of the Central Government, or of the Government of an Indian Prov ince or State, or of any local authority or public body, or of any educational or other public institution, or for the occupation of any officer of any such Government authority.
body or institution or for the occupation of any individual, the landlord shall be at liberty to let the house to any tenant, or if the Controller on application made by the landlord, permits the landlord to do so, to occupy the house himself.
" Sub clause (8) says : "The landlord shall not let the house to a tenant or occupy it himself, before the expiry of the period of ten days specified in sub clause (2), unless he has received intima tion that the house is not required for the purposes re ferred to in that sub clause or the permission referred to therein, earlier." To this sub clause, a proviso was added by a notification to the following effect: "Provided that the Controller, before requiring the house for any of the purposes stated above, shall take into consideration such representation, if any, as may be made by the owner regarding his bona fide requirements for personal occupation.
" Then comes sub clause (4) which reads as follows : "(4) If the house is required for any of the purposes or for the occupation by any of the officers 751 specified in sub clause (2)the landlord shall deliver pos session of the house to the Government authority, body or institution concerned and such Government authority or body or institution shall be deemed to be the tenant of the landlord, with retrospective effect from the date on which the Controller received notice under sub clause (1), the terms of the tenancy being such as may be agreed upon be tween the landlord and, the tenant: Provided that the rent payable shall not exceed the fair rent which may be payable for the house under the provisions of this Order.
" The Mysore House Rent and Accommodation Control Order of 1948 was repealed by the Mysore House Rent and Accommodation Control Act XXX of 1951.
But what is relevant and material for disposal of this petition is the earlier Control Order as all the proceedings now in question were taken under it.
If the allotment had been made under the Control Order prior to the date of its amendment on 4th May, 1949, the petitioner would have had a good case to urge.
Sub clause (2) as it then stood spoke of the house being required for certain specified purposes or for any educational or other public institution, or for the occupation of an officer of any Government authority, body or institution;and the house could not have been required for the occupation of a private individual.
But the amendment has enlarged the scope of the power of the Controller by providing that the requirement may also be for the occupation of any individu al.
The answer to the first contention based on article 31 (2) or article 19(1) (I) of the Constitution is a short one.
The Constitution came into force on the 26th January, 1950, after the impugned orders were made and at a time when there was nothing like a chapter of Fundamental Rights.
The argu ment that the requisition in the present case was not for any public purpose and the restriction on the respondent to hold property must be in the interests of the general public presupposes that the Constitution governs the case.
This 752 assumption, however, is not well founded.
The order of allotment was made before the Constitution came into force and at a time when the Control Order provided, validly, that a house could be taken for the occupation of a private individual.
During the period of 10 days specified in sub clause (2), the landlord could not let the house or occupy it himself, and on allotment, he was bound to deliver up possession to the allottee.
His rights as landlord were thus at an end so far as possession was concerned.
Whether retrospective effect could be given to article 13 (1) of the Constitution arose for decision in Keshavan Madhava Menon vs The State of Bombay(1).
Dealing with the argument that the said article rendered voidab initio and for all purposes an earlier law which was inconsistent with fundamental rights, it was laid down by this Court in that case "that such laws existed for all past transactions and for enforcing all rights and liabilities accrued before the date of the Constitution." (Per Das J., at page 234).
Mr. Justice Mahajan observed at pages 249 and 250: "It is admitted that after the 26th January, 1950, there has been no infringement of the appellant 's right of freedom of speech or expression.
In September, 1949, he did not enjoy either complete freedom of speech or full freedom of expression.
It is in relation to the freedom guaranteed in article 19 (1) of the Constitution to the citizen that the provisions of article 13 (1) come into play.
the article does not declare any law void independ ently of the existence of the freedoms guaranteed by Part III.
A citizen must be possessed of a fundamental right before he can ask the court to declare a law which is incon sistent with it void; but if a citizen is not possessed of the right, he cannot claim this relief.
" These remarks have application here.
The learned Advocate for the petitioner sought to get over this difficulty by pointing out that the (1) ; 753 dispossession took 'place on 11 4 1950.
This, however, is no answer.
The dispossession was a mere consequence which followed under clause '3, sub clause (6) of the Control Order.
The right to possession was lost earlier and the landlord merely held on to the property.
Article31 (2)does not apply for another reason.
There was no acquisition by the State of the house.
The taking of possession can only be from a person who is entitled to possession.
The petitioner landlord lost his right to possession by reason of the Controller 's order.
As soon as the allotment is made, the allottee becomes a tenant and the owner becomes the landlord by reason of sub clause (4)of the Control Order and the learned Advocate General of the Mysore State contended that a statutory tenancy was thereby created.
It is no doubt true that it is provided by sub clause (4) that the terms of the tenancy may be such as may be agreed upon between the landlord and the tenant, and there is no provision, as found in the later Act, as to what is to happen in the event of there being no agreement.
If it is correct that a tenancy is brought into existence by the operation of the statute, it is possible that in case the terms are not the subject of any agreement between the landlord and the tenant, the ordinary law of landlord and tenant will apply in the absence of any provision for the fixation of terms by the Controller.
But the point does not arise for decision in this case and nothing.
further need be said about it.
The applicability of sub clause (4) of the Control Order was sought to be avoided in another manner.
It was pointed out that sub clause (2) referred in its first part "to the purposes of the Government of Mysore" etc., and in its later part "for the occupation of any officer or any such Govern ment authority, body or corporation, or for the occupation of an individual", but that when we come to sub clause (4), the two categories are kept distinct or separate and in referring to the second category the Control Order 754 speaks only of the requirement of the house for the occupa tion by any of the officers and nothing is said about the occupation of any individual.
The amending Act did not introduce the words "or for the occupation of any individu al" into sub clause (4).
Therefore, it was urged that the whole basis of the Advocate General 's contention about a statutory tenancy being created fell to the ground.
At first sight, there seems to be something in the point.
But if sub clause (2) is read as a whole, having in 'view the object sought to be achieved by the legislation, it is fairly clear that there is no such necessary antithesis between the two categories or clauses and that the words "for the purposes" can be so read as to include "occupation" also. 'the omission of the words "for the purposes" in the latter part of sub clause (2) was perhaps to avoid inartis tic phraseology.
"For the occupation" certainly reads better than "for the purposes of the occupation".
Ground No. 2 regarding discrimination was not pressed.
Then, we come to ground No 3.
Clause (bb) of sub clause (2) of Rule 81 of the Defence of India Rules is in these terms: "(bb) for regulating the letting and sub letting of any accommodation or class of accommodation, whether residential or non residential, whether furnished or unfurnished and whether with or without board, and in particular, (i) for controlling the rents for such accommodation (either generally or when let to specified persons or classes of persons or in specified circumstances); ((ii) for preventing the eviction of tenants and sub tenants from such 'accommodation in specified circumstances and); (iii) for requiring such accommodation to be let either generally, or to specified persons or classes of persons, or in specified circumstances; . ," 755 It was urged that the power conferred under this sub clause applied only to those cases where the house was available for letting or sub letting and not to eases where a house was not so available, in other words, if the land lord of any premises said that they were required for his own occupation, the Government had no power to requisition the same, Emphasis was laid on the word "regulating".
This, however, is an obviously unsound interpretation to be placed upon the words.
They mean that the Government might provide for and regulate the letting and sub letting etc., and that such is the scope is clear from the words in sub clause (2) "may by order provide".
The argument for the petitioner, if accepted, would render the powers entirely nugatory, as it would then be open to every landlord to say that the prem ises are required for self occupation, or even that he has already let it out to another and that therefore it is not available for being let.
There was no requisition of property in this case under section 75 (A) of the Defence of India Rules.
The Control Order was promulgated under rule 81 (2) (bb) which provides for the regulation of letting and sub letting houses.
It is rather the exercise of a police power of regulation in public interest than anything done in the exercise of a power of eminent domain, in which case alone questions relating to compensation and public purpose will arise.
In the course of the arguments, it was suggested that the amendment notification of 4th May, 1949, introducing the words "or for the occupation of any individual" was invalid because the regulation of letting and sub letting under clause (bb) could only be for the Defence of British India or for the efficient prosecution of the war, or for main taining supplies and services essential to the life of the community, and that the taking of property for the occupa tion of a private individual was outside the scope of the power.
Apart from the fact that no such ground has been taken in the petition, it has also to be noted that 98 756 the Control Order purports to have been made not only under clause (bb) of sub rule (2) of rule 81 of the Defence of India Rules, but also under the Supplies, Services and Miscellaneous Provisions (Temporary Powers) Act of 1947.
We have not got this Act before us and it was not even referred to in the course of the arguments.
Hence no decision is called for on this point.
The petition fails and is dismissed without any order as to costs.
Petition dismissed.
Agent for the petitioner: K.R. Krishnaswarny.

Output:
A house belonging to the petitioner in the Bangalore City fell vacant on the 1st September, 1949, and on the 13th September, 1949, an order was passed by the Rent Con troller 745 under the Mysore House Rent and Accommodation Control Order, 1948, allotting the house to another person and directing the petitioner to deliver possession to the lat ter.
The petitioner protested and took various steps to get the order vacated but he was unsuccessful and forcible possession was taken from him under an order made on the 11th April, 1950.
He applied to the Supreme Court under article 32 of the Constitution for quashing the order allotting the house and the subsequent orders made to enforce that order, on the ground, infer alia, that these orders contravened the provisions of articles 31 (2) and 19 (1) (f) of the Consti tution: Held, (i) that as the order of allotment was made before the Constitution came into force and at a time when the Control Order provided, validly, that a house could be taken for the occupation of a private individual, the order could not be impugned on the ground that it contravened article 31 (2) or 19 (1)(f) of the Constitution: (ii) the fact that possession was actually taken only in pursuance of an order made on the 11th April, 1950, was immaterial as the peti tioner 's right to possession was lost earlier; (iii) article 31 (2) was inapplicable for another reason also, namely, that there was no acquisition of the house by the State, as taking of possession can only be from a person who is enti tled to possession and the landlord lost his right to pos session by reason of the Controller 's order.
Held also, that the power conferred by cl.
(bb) of sub cl.
(2) of Rule 81 of the Defence of India Rules (under which the Control Order was made) was not confined to cases where the house was available for letting or subletting in the sense that the landlord did not require the house for his own use or had not let it to another himself.


Input:
Appeal No. 650 of 1957.
Appeal from the judgment dated July 13, 1956, of the Patna High Court in Miscellaneous Judicial Case No. 665 of 1954.
R. Ganapathy Iyer and R. H. Dhebar, for the appellant.
A. V. Viswanatha Sastri and R. C. Prasad, for the respondent.
November 29.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
This is an appeal by the Commissioner of Income tax with a certificate against the judgment and order of the High Court at Patna answering two questions of law referred to it under section 66(1) of the Income tax Act by the Tribunal, in the negative.
Those questions were: "(1) Whether in the circumstances of the case assessment proceedings were validly initiated under section 34 of the Indian Income tax Act? (2) If so, whether in the circumstances of the case the amount received from interest on arrears of agricultural rent was rightly included in the income of the assessee ?" The assessee, the Maharaja Pratapsingh Bahadur of Gidhaur, had agricultural income from his zamindari for the four assessment years 1944 45 to 1947 48.
In assessing his income to income tax, the authorities did not include in his assessable income interest received by him on arrears of rent.
This was presumably so in view of the decision of the Patna High Court.
When the Privy Council reversed the view of law taken by the Patna High Court in Commissioner of Income tax vs Kamakhya Narayan Singh (1), the Income tax Officer issued notices under section 34 of the (1) 762 Indian Income tax Act for assessing the escaped income.
These notices were issued on August 8, 1948.
The assessments after the returns were filed, were completed on August 26, 1948.
Before the notices were issued, the Income tax Officer had not put the matter before the Commissioner for his approval, as the section then did not require it, and the assessments were completed on those notices.
Section 34 was amended by the Income tax and Business Profits Tax (Amendment) Act, 1948 (No. 48 of 1948), which received the assent of the Governor General on Sep tember 8, 1948.
The appeals filed by the assessee were disposed of on September 14 and 15, 1951, by the Appellate Assistant Commissioner, before whom no question as regards the validity of the notices under section 34 was raised.
The question of the validity of the notices without the approval of the Commissioner appears to have been raised before the Tribunal for the first time.
In that appeal, the Accountant Member and the Judicial Member differed, one holding that the notices were invalid and the other, to the contrary.
The President agreed with the Accountant 'Member that the notices were invalid, and the assessments were ordered to be set aside.
The Tribunal then stated a case and raised and referred the two questions, which have been quoted above.
The High Court agreed with the conclusions of the majority, and the present appeal has been filed on a certificate granted by the High Court.
Section 34, as it stood prior to the amendment Act No. 48 of 1948, did not lay any duty upon the Income tax Officer to seek the approval of the Commissioner before issuing a notice under section 34.
The amending Act by its first section made sections 3 to 12 of the amending Act retrospective by providing "sections 3 to 12 shall be deemed to have come into force on the 30th day of March, 1948. .
Section 8 of the amending Act substituted a new section in place of section 34, and in addition to textual changes with which we are not concerned, also added a proviso to the following effect : "Provided that 763 (1) the Income tax Officer shall not issue a notice under this sub section unless he has recorded his reasons for doing so and the Commissioner is satisfied on such reasons that it is a fit case for the issue of such notice.
" The question is whether the notices which were issued were rendered void by the operation of this proviso. ' The Commissioner contends that section 6 of the , particularly cls.
(b) and (c) saved the assessments as well as the notices.
He relies upon a decision of the Privy Council in Lemm vs Mitchell (1), Eyre vs Wynn Mackenzie (2) and Butcher vs Henderson (3) in support of his proposition.
The last two cases have no bearing upon this matter; but strong reliance is placed upon the Privy Council case.
In that case, the earlier, action which had been commenced when the Ordinance had abrogated the right of action for criminal conversation, had already ended in favour of the defendant and no appeal therefrom was pending, and it was held that the revival of the right of action for criminal conversation did not invest the plaintiff with a right to begin an action again and thus expose the defendant to a double jeopardy for the same act, unless the statute expressly and by definite words gave him that right.
The Privy Council case is thus entirely different.
No doubt, under section 6 of the it is provided that where any Act repeals any enactment, then unless a different intention appears, the repeal shall not affect the previous operation of any enactment so repealed or anything duly done thereunder or affect any right, obligation or liability acquired, accrued or incurred under any enactment so repealed.
It further provides that any legal proceedings may be continued or enforced as if the repealing Act had not been passed.
Now, if the amending Act had repealed the original section 34, and merely enacted a new section in its place, the repeal might not have affected the operation of the original section by virtue of section 6.
But the amending Act goes further than this.
It (1) ; (2) (3) 764 repeals the original section 34, not from the day on which the Act received the assent of the Governor General but from a stated day, viz., March 30, 1948, and substitutes in its place another section containing the proviso above mentioned.
The amending Act provides that the amending section shall be deemed to have come into force on March 30, 1948, and thus by this retrospectivity, indicates a different intention which excludes the application of section 6.
It is to be noticed that the notices were all issued on August 8, 1948, when on the statute book must be deemed to be existing an enactment enjoining a duty upon the Income tax Officer to obtain prior approval of the Commissioner, and unless that approval was obstained, the notices could not be issued The notice were thus invalid.
, The principle which was applied by this Court in Venkatachalam vs Bombay Dyeing & Mfg. Co. Ltd. (1) is equally applicable here.
No question of law was raised before us, as it could not be in view of the decision of this Court in Narayana Chetty vs Income tax Officer (2), that the proviso was not mandatory in character.
Indeed, there was time enough for fresh notices to have been issued, and we fail to see why the old notices were not recalled and fresh ones issued.
For these reasons, we are in agreement with the High, Court in the answers given, and dismiss this appeal with costs.
A appeal dismissed.

Output:
The appellant who had agricultural income from his Zamindari was assessed to income tax for the four assessment years, 1944 45, to 1947 48.
The income tax authorities did not include in his assessable income, interest received by him on arrears of rent, in view of a decision of the Patna High Court, but subsequently this view of law was reversed by the Privy Council.
On August 8, 1948, the Income tax Officer issued notices under section 34of the Indian Income tax Act, 1922, for assessing the escaped income.
Before the notices were issued the Income tax Officer had not put the matter before the Commissioner for his approval as the section then did not require it and the assessments were completed on those notices.
In the meantime, certain amendments were made to the Indian Income tax Act by Act 48 of 1948, which received the assent of the Governor General on September 8, 1948.
The Amending Act substituted a new section in place of section 34, which among other changes, added a proviso to the effect that "the Income tax Officer shall not issue a notice. unless he has recorded his reasons for doing so and the Commissioner is satisfied on such reasons that it is a fit case for the issue of such notice", and also made it retrospective by providing that the new section "shall be deemed to have come into force on the 30th day of March, 1948".
The question was whether the notices issued by the Income tax Officer on August 8, 1948, without the approval of the Commissioner, were rendered void by reason of the operation of the amended section 34.
The Commissioner claimed that section 6 of the , saved the assessments as well as the notices.
Held, that section 6 of the , was in applicable as the Amending Act of 1948 indicated a different intention within the meaning of that section, inasmuch as the amended section 34 of the Indian Income tax Act, 1922, provided that it shall be deemed to have come into force on March 30, 1948.
Lemm vs Mitchell, ; , distinguished, 761 Held, further, that the notices issued by the Income tax Officer on August 8, 1948, and the assessments based on them were invalid.
Venkatachalam vs Bombay Dyeing & Mfg. Co., Ltd., ; , applied.


Input:
ivil Appeal No. 871 of 1986 etc.
From the Judgment and Order dated 29.1.1986 of the Patna High Court in Misc.
Judicial Case No. 356 of 1985.
K.K. Venugopal, Jaya Narain, R.P. Singh, M.P. Jha, B.P. Singh, Ranjit Kumar, Ranjan Dwivedi and P.P. Singh for the appearing parties.
The Judgment of the Court was delivered by KHALID, J.
These appeals are directed against the Judg ment of a Division Bench of Patna High Court in Misc.
case No. 356 of 1985.
Appeal No. 871 of 1986 is by the State of Bihar, Appeal No. 916 5 jointly by Srideo Mishra, Judicial Commissioner, Ranchi (at the relevant time, Secretary cum Legal Remembrancer, Depart ment of Law, Government of Bihar, Patna) and Mrs. Radha Singh, Commissioner, Ranchi Division, Ranchi (at the rele vant time Additional Irrigation Commissioner.
, Patna), Appeal No. 933 by Subh Chandra, Jha, Public Relation Offi cer, Irrigation Department, Government of Bihar, Patna and Appeal No. 1178 by Birkeshwar Prasad Singh, now Professor and Head of Department Political Science, Magadh University (Member, Bihar Public Service Commission, Patna at the relevant time).
The appellants have been convicted by the High Court for contempt of its order and have been sentenced to a fine of Rs.50 in default to suffer simple imprisonment for two weeks.
The High Court had issued contempt notice against some others also.
Those notices were discharged against them.
The background facts necessary can be now stated in brief as follows: In the Irrigation Department of the State of Bihar, there existed a post of Public Officer.
This post became vacant some time in 1979.
One Arun Kumar Verma was appointed to that post for six months.
At that time one Kripalu Shan ker was discharging the functions of Public Relation Offi cer.
He laid claim to that post.
He did not succeed.
The Secretary to the Department did not accede to his request.
Therefore, he filed C.W.J.C. No. 3632 of 1979.
When the case came up for hearing, it was represented on behalf of the State that Shri Verma was appointed only on ad hoc basis for a period of six months and that after the expiry of six months, the matter would be referred to the Public Service Commission for consideration and at that stage the case of Kripalu Shankar also will be considered.
It is submitted that on this assurance by the State, the petition was al lowed to be withdrawn as per order dated 19.12.1979.
It appears that this assurance was not respected, no reference was made to the Public Service Commission for regular ap pointment and the matter was kept in abeyance for a long time.
It is stated that in April, 1983, by which time Dr. Jagannath Mishra had become Chief Minister, the State Gov ernment appointed Subh Chandra Jha as P.R.O. again on ad hoc basis.
This gave rise to the filing of petition No. 1534 of 1983 which was disposed of on 4.5.83.
It was contended that this appointment was made without any advertisement and without consultation with the Public Service Commission.
The learned Advocate General informed the Court when the matter came up for heating that the appointment of Jha was only ad hoc giving an impression that regular appointment would be made after the expiry of six months.
On this representation the following order was passed by the Court: 6 "In the circumstances we direct that the post of Public Relations Officer in the Irrigation Department on which respondent 3 has been appointed on ad hoc basis should be filled up in a regular way.
In case the appointment is not made within the period of six months, the ad hoc appointment shah stand terminated.
We further direct that the fact that the respond ent No. 3 has worked on the post on ad hoc basis will not be taken to be a qualification for the purpose of any appointment through regular method on the post of Public Relations Officer.
" The six months ' period, according to the above order, was to expire on 17.10.1983.
The case of the State is that the Irrigation Department had as early as 4.4.1983 written to the Public Service Commission to give concurrence to the appointment of Shri Jha, since his post was an ex cadre post and since he was selected by a Selection Committee.
Concur rence was given on 2.4.85.
The Government thereafter exam ined the matter in consultation with the Personnel (Adminis trative) Reforms Department, with reference to the provi sions of the Rules governing reservations.
The Government took a decision to send a requisition to the Bihar Public Service Commission for advertising the post.
The Commission finally advertised the post on 12.5.1985, setting out the eligibility and criterion for selection.
Another Writ Petition was filed in the High Court as C.W.J.C. No. 2354/85 with the allegations that the adver tisement was specially drafted to suit only Subh Chandra Jha.
The matter was listed for admission on 13.6.1985.
During the hearing of this petition the High Court felt on going through the records including the notes file summoned for production by the Court that its direction in C.W.J.C. No. 1534/83 was disregarded and, therefore, rule was issued upon the respondents to show cause why they should not be punished for contempt of the Court for ignoring its order dated 4.5.1983, in the above mentioned writ petition.
The State of Bihar and the Commissioner cum Secretary, Irrigation Department who were respondent nos.
1 & 2 before the High Court expressed regret but at the same time con tended that no contempt had been committed by them for the reason that expression of views in the notings made on the files whether they were right or wrong did not amount to contempt of court and that no order was passed appointing Subh Chandra Jha after 17.10.1983 to invite any contempt action.
The third respondent also pleaded similarly and expressed regret for any omission on his part.
The Bihar Service Commission and its Executive Officer stated that they had not 7 committed any contempt, that Subh Chandra Jha 's appointment from 18.10.1983 should be treated as a fresh appointment, that they did not know about the order passed in petition No. 1534 of 1983, that though concurrence was given, it was withdrawn when the correct facts were made known to them and that the withdrawal of the concurrence was duly communicat ed.
The other respondents also adopted similar stand in the returns filed by the end.
Arguments in the contempt matter were heard for some time, and they were concluded on 12.8.1985 and the case was posted for Judgment.
The Court went through the Government files and the files of the Bihar Public Service Commission.
From the noting in the file, the High Court discovered that Mrs. Radha Singh, the then Additional Irrigation Commission er and Birkeshwar Prasad Singh, Member Bihar Public Service Commission and Sanjeevan Sharma, Section Officer, Bihar Public Service Commission, had also a part in the matter.
Notices were, therefore, directed to be issued to them as well.
They appeared and were heard on 25.9.1985.
The High Court considered the question of contempt on the following facts, which accord ing to it were undisputed: (i) The ad hoc appointment of S.C. Jha must be terminated on 17.10.1983 as per its order.
(ii) He was still working as P.R.O. with the acquiescence of the concerned officers.
(iii) Concurrence of the Public Service Commission was sought, for his fresh ad hoc appointment.
(iv) The Public Service Commissioner gave concurrence to the ad hoc appointment from October, 1983, by its order in May, 1985.
The High Court expressed itself, of what it felt about the disobedience of its order in para 4 of the Judgment as follows: "The State Government has ignored the order of the High Court.
It had, therefore, to be made party.
The Irrigation Commissioner cum Secre tary is responsible for every act of his Department.
It was, therefore, but natural that the proceeding should be drawn up against him also.
Shrideo Mishra, Legal Remembrancer was proceeded against, as he advised the State Government on 10.10.1983 to seek concurrence from the Commission in the fresh ad hoc ap pointment of Subh Chandra Jha knowing ball well the dictate of 8 this Court that services of Subh Chandra Jha must be terminated after the expirty of six months.
Incidentally, it may be stated once again that the six months period had expired on 17.10.1983.
The Public Service Commission and the Special Executive Officer thereof have been proceeded against for granting concur rence to the Ad hoc appointment of Subh Chan dra Jha.
Subh Chandra Jha himself has been proceeded against for master minding the whole affair.
Proceeding is against him too on that score.
The proceeding was initiated against A.U. Sharma on the footing that he was the Irrigation Commissioner in October, 1983 when the service of Subh Chandra Jha had to be terminated.
That is how the contemners have been proceeded against.
" The High Court found the officers guilty for the reasons given below in Paragraph 22 of the Judgment, which we read so that the approach of the High Court could be properly appreciated.
"It is necessary to consider the submission urged by learned Advocate General on behalf of the officers of the State and the public service commission.
The General submission was, that notings did not represent the con cluded decision of the Government, and there fore, the officers were not liable for con tempt of court.
The proposition advanced by learned Advocate General is rather too wide.
A Government file is not an individual 's private property.
It is public property.
The opinions expressed therein are liable to reduce the credibility and the binding nature of the orders passed by the High Court, and that would amount to denigration of the State Judiciary.
No officer has the right to abuse the High Court or to ignore the orders passed by the High Court.
I do not for a moment contend that for every noting in the file contrary to the view taken by the High Court will amount to contempt of court.
It will depend upon the nature of the view noted in the file and whether the nothings are intended to set the High Court 's order at nought mali ciously.
In the present case, the order of the High Court was explicit.
The Advocate General had advised explicitly that taking any steps to appoint Subh Chandra Jha ad hoc would amount to contempt of court and yet the offi cers were busy trying to find out how to ignore the High Court order.
When the High Court 's direction was to make the regular appointment through the 9 B.P.S.C. where was the occasion for seeking concurrence of ad hoc appointment of Subh Chandra Jha.
The whole file gives the impres sion that the officers in the state were not reconciled to the orders passed by the High Court.
I am, therefore, unable to hold that some of the officers were not liable for contempt of court." After considering the factual matrix before the Court, the Court held that there was no disobedience of its order by the Government and that the Government had taken a deci sion not to continue the ad hoc appointment but observed as follows: "The State of Bihar as a jurisdic person has certainly not committed contempt.
Because their Chief Minister Shri Chandresekhar Singh wrote on 8.1.
1984 that the High Court order must be obeyed.
On 10.3.
1984, the Chief Secretary noted that Shri Jha should not be granted ad hoc appointment . the State of Bihar therefore cannot be held to be guilty of contempt of this Hon 'ble Court . " After this finding, the High Court held some of the officers of the Government guilty solely on the basis of the views expressed by them in the files, which were not, in fact, accepted by the Government and which were only at the stage of suggestions and views.
Shri K.K. Venugopal, the learned counsel for the State contended that it would be unsafe to initiate action in contempt merely on the strength of notings by officials on the files, expressing their views and to do so would imperil the working of various depart ments in a Government in a democracy and would have far reaching consequences.
Some times a view expressed by an officer may be incorrect.
The view so expressed passes through various hands and gets translated into action only at the ultimate stage.
The views so expressed are only for internal use.
Such views may indicate the line of thinking of a particular officer.
Until the views so expressed culmi nate into an executable order, the question of disobedience of Court 's order does not arise.
Though the State Government have been found not guilty, the State has filed the appeal to protect its officers from independent and fearless ex pression of opinion and to see that the order under appeal does not affect the proper functioning of the Government.
It cannot be disputed that the appeal raises an impor tant question of law bearing upon the proper functioning of a democratic Government.
A Government functions by taking decisions on the strength of views and suggestions expressed by the various officers at different levels, ultimately getting finality at the hands of the Minister 10 concerned.
Till then, conflicting opinions, views and sug gestions would have emanated from various officers at the lower level.
There should not be any fetter on the fearless and independent expression of opinions by officers on mat ters coming before them through the files.
This is so even when they consider orders of courts.
Officers of the Govern ment are often times confronted with orders of courts, impossible of immediate compliance for various reasons.
They may find it difficult to meekly submit to such orders.
On such occasions they will necessarily have to note in the files, the reasons why the orders cannot be complied with and also indicate that the courts would not have passed these orders if full facts were placed before them.
The expression of opinion by the officers in the internal files are for the use of the department and not for outside expo sure or for publicity.
To find the officers guilty for expressing their independent opinion, even against orders of courts in deserving cases, would cause impediments in the smooth working and functioning of the Government.
These internal notings, in fact, are privileged documents.
Notings made by the officers in the files cannot, in our view, be made the basis of contempt action against each such officer who makes the notings.
If the ultimate action does not constitute contempt, the intermediary suggestions and views expressed in the notings, which may sometimes even amount ex facie disobedience of the courts orders, will nor amount to contempt of court.
These notings are not meant for publi cation.
In our considered view the internal notes file of the Government, maintained according to the vales of business, is a privilege document.
if the Government claims privilege or quasi privilege regarding the notes file we will not be justified in rejecting the claim outright.
In this case, the notes file was brought to the Court not voluntarily by the Government.
It was summoned for by the Court.
The Court can always look into it.
The right of the Court to look into any files, can never be denied.
The contents of the notes file brought to Court got communicated to the Court because the Court looks into it.
It would be dangerous to find an action for contempt, for the views expressed in the notes file, on the discovery of unpleasant or unsavory notes, on a perusal of the notes file by the Court, after getting them summoned.
This would impair the independent functioning of the civil service essential to democracy.
This would cause impediments in the fearless expression of opinion by the officers of the Government.
The notings on files differ from officer to officer.
It may well be that the notes made by a particular officer, in some cases, technically speaking is in disobedi ence in an order of the Court or may be in violation of such order but a more experienced officer sitting above him can always correct him.
To rely upon the notings in a file for the purpose of initiat 11 ing contempt, in our view, therefore, would be to put the functioning of the Government out of gear.
We must guard against being over sensitive, when we come across, objec tionable notings made by officers, sometimes out of inexpe rience, sometimes out of over zealousness and sometimes out of ignorance of the nuances of the question of law involved.
Now, the functioning of Government in a State is gov erned by Article 166 of the Constitution, which lays down that there shall be a council of ministers with the Chief Minister at the head, to aid and advise the Governor in the exercise of his functions except where he is required to exercise his functions under the Constitution, in his dis cretion.
Article 166 provides for the conduct of Government business.
It is useful to quote this Article: "166.
(1) All executive action of the Govern ment of a State shall be expressed to be taken in the name of the Governor.
(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Gover nor, and the validity of an order or instru ment which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.
(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.
" Articles 166(1)requires that all executive action of the State Government shall be expressed to be taken in the name of the Governor.
This clause relates to cases where the executive action has to be expressed in the shape of a formal order or notification.
It prescribes the mode in which an executive action has to be expressed.
Noting by an official in the departmental file will not, therefore, come within this Article nor even noting by a Minister.
Every executive decision need not be as laid down under Article 166(1) but when it takes the form of an order it has to comply with Article 166(1).
Article 166(2) states that orders and other instruments made and executed under Article 166(1), shall be authenticated in the manner prescribed.
While clause (1) relates to the mode of expression, clause (2) lays down the manner in 12 which the order is to be authenticated and clause (3) re lates to the making of the rules by the Governor for the more convenient transaction of the business of the Govern ment.
A study of this Article, therefore, makes it clear that the notings in a file get culminated into an order affecting right of parties only when it reaches the head of the department and is expressed in the name of the Governor, authenticated in the manner provided in Article 166(2).
Viewed in this light, can it be said that what is con tained in a notes file can ever be made the basis of an action either in contempt or in defamation.
The notings in a notes file do not have behind them the sanction of law as an effective order.
It is only an expression of a feeling by the concerned officer on the subject under review.
To exam ine whether contempt is committed or not, what has to be looked into is the ultimate order.
A mere expression of a view in notes file cannot be the sole basis for action in contempt.
Business of a State is not done by a single offi cer.
It involves a complicated process.
In a democratic set up it is conducted through the agency of a large number of officers.
That being so, the noting by one officer, will not afford a valid ground to initiate action in contempt.
We have thus no hesitation to hold that the expression of opinion in notes file at different levels by concerned officers will not constitute criminal contempt.
It would not, in our view, constitute civil contempt either for the same reason as above since mere expression of a view or suggestion will not bring it within the vice of sub section (c) of Section 2 of the , which defines civil contempt.
Expression of a view is only a part of the thinking process preceding Government action.
In the case of Bachhittar Singh vs The State of Punjab, [1962] Suppl.
3 SCR 713 a Constitution Bench of this Court had to consider the effect of an order passed by a Minister on a file.
which order was not communicated.
This Court, relying upon Article 166(1) of the Constitution, held that the order of the Revenue Minister, PEPSU could not amount to an order by the State Government unless it was expressed in the name of Rajpramukh as required by the said Article and was then communicated to the party concerned.
This is how this Court dealt with the effect of the noting by a Minister on the file: "The question, therefore, is whether he did in fact make such an order.
Merely writing some thing on the file does not amount to an order.
Before something amounts to an order of the State Government two things are necessary.
The order has to be expressed in the name of the Governor 13 as required by clause (1) of Article 166 and then if has to be communicated.
As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made.
Until such an order is drawn up the State Government cannot, in our opinion, be regarded as bound by what was stated in the file.
As long as the matter rested with him the Revenue Minister could well score out his remarks or minutes on the file and write fresh ones.
" This Court observed in this Judgment that business of State is a complicated one and has necessarily to be con ducted through the agency of a large number of official and authorities.
Before action is taken by the authority con cerned in the name of the Rajpramukh which formality is a Constitutional necessity, nothing done would amount to an order creating rights or casting liabilities on third par ties.
It is possible, observed this Court, that after ex pressing one opinion about a particular matter at a particu lar stage a Minister or Council of Ministers may express quite a different opinion which may be opposed to the earli er opinion.
In such cases, which of the two opinions can be regarded as the order of the State Government.
It was held that an opinion becomes a decision of the Government only when it must be communicated to the person concerned and that this is the essence of the matter.
We seek support from these observations for our purpose that notings in a notes file, not only of officers but even that of a Minister will not constitute an order to affect others unless it is done in accordance with Article 166(1) and (2) and communicated to the person concerned.
In England, absolute privilege is given to statements made by one officer of a State to another and such state ments are protected in the context of law of defamation.
Section 123 of the Evidence Act deals with privilege.
We have already stated that State communications or acts of State in Public interest, enjoy privilege and if that be so, disclosure in such communications made to the court will not constitute either contempt or defamation.
In any case such internal communications enjoy quasi privilege and a disclo sure in such communications cannot be made the basis of an action in contempt.
We have seen how the High Court approached the whole question from paragraph 22 extracted early in the Judgment.
It is clear that the High Court based its conclusion purely on the notings in the file.
The High Court felt that the officers of the Govern 14 ment did not like the orders passed by it and this, accord ing to the High Court, was evident from the files before it.
The High Court summed up its conclusion as follows in para graph 24 of the Judgment: "To sum up, contempt of this Court has been committed by Shri Deo Mishra, Legal Remem brancer, Mrs. Radha Sinha, I.A.S. then working as Additional Commissioner, Irrigation Depart ment and now working as Additional Finance Commissioner, Dr. Birkeshwar Prasad Singh, Sanjeewan Sharma and Subh Chandra Jha and I convict them accordingly.
In regard to sen tence, I am clearly of the view that there was motivation for it.
The hand of the moving spirit has, however, remained concealed.
It appears that the feeling amongst high officers of this state is that the High Court will not punish them for contempt of the High Court, as they are high officers and that all that the High Court will do in case of contempt of court is to give lectures and at times rant at them.
To remove this misconception it is essential to impose upon them a fine of Rs.50 (Rupees fifty) each on all the five persons mentioned above, in default to suffer simple imprisonment for two weeks.
The rule issued against J.C. Kundra, A.K.M. Nassan.
A.U. Sharma and Arjun Prasad is discharged.
" We see that the High Court felt that there was an at tempt on the part of the officers to disobey its orders.
The officers had tendered apology.
This was not accepted.
We are concerned more than anyone in upholding the dignity and prestige of the High Court, but we have a duty at the same time to lay down the law correctly.
We feel that the convic tion entered by the High Court purely on the basis of the notes file cannot be justified.
The High Court was under the impression that all the officers acted in unison to help the 5th respondent.
We now deal with his case separately.
He is described by the High Court as the Kingpin of the whole drama and according to the High Court everybody concerned acted for his benefit.
There is a veiled suggestion that he would not have achieved what he wanted except with the help of political forces and that there is an un seen hand behind what he achieved.
He was found guilty of abetting the contempt.
According to him he has been made a scape goat, that his is an unfortunate case of a journalist, appointed as Public Relation Officer on ad hoc basis for six months as recom mended by a selection commit 15 tee at an interview held along with seven other candidates.
He joined service after such a selection on 18 4 1983.
As per the order of the High Court, the period of six months for making the regular appointment to his post was to expire on 17 10 1983.
Long before this date, the Irrigation Depart ment had written to the Public Service Commission stating that the post held by the appellant was an ex cadre post and that concurrence may be accorded for his appointment.
This was an internal letter.
The Government sent a requisition to the Public Service Commission for advertising the post on 10 8 1984.
The Commission ultimately made the publication on 12 5 1985 stating the eligibility and criteria for selec tion.
It was this publication that promoted the filing of the writ petition in question in which the order that gave rise to the contempt proceeding was passed.
Regular appoint ment pursuant to the advertisement was stayed.
The appellant thus continued at the post.
According to him he has not disregarded the order of the High Court.
The Bihar Public Service Commission gave concur rence for his appointment for six months.
The post of P.R.O. being an ex cadre post since its creation in 1955, the post could not be filled up by giving promotion to anyone working in the department.
It was constituted to interview candi dates and to recommend a suitable person.
The appellant continues to function on the strength of the orders passed in his favour and he cannot be held to have committed con tempt of the High Court 's order.
He has stated that he had no notice in the writ petition filed by Kripalu Shankar or the writ petition from which the present contempt arise.
Though he was made a party no notice was ever issued to him and no direction was given to him by the High Court.
Accord ing to him, apart from a general observation that he abetted in disregarding the order of the High Court nothing specific has been attributed to him.
His unqualified apology was also not accepted by the High Court.
He also relies upon the fact that he was not paid salary from 18 10 1983 to date in re inforcement of his submission that he has not committed any contempt.
With respect to the learned Judges, we find it difficult to agree wholly with them regarding the finding that the appellant was guilty of contempt.
We do not have sufficient materials before us to conclude that the appellant exercised political clout to further his interest in utter disregard of the orders of the Court.
Although it may be said that the conduct of the appellant is in some measure suspect, we do not find sufficient justification to enter a finding that he is guilty of contempt and that he acted in utter disregard of the High Court 's order.
It is useful to remember that apart from the notes file, there is no indepen 16 dent material before us to held that the appellant had committed contempt.
The Government pleader and the Advocate General had clearly advised the Government to act in accord ance with the directions given by the High Court.
The Minis ter who is the ultimate authority also acted in obedience to the orders of the High Court.
That being so, we find it difficult to agree with the finding that he is guilty of criminal contempt.
The High Court felt that his was not a fit case to accept the unqualified apology tendered.
Howev er, we find, that on materials placed before us, it is not proved beyond doubt that he had committed contempt.
We would, therefore, give him benefit of doubt and purge him of the contempt found against him.
We would like to outline the general principle on which confidentiality of State documents should be protected.
The general principle is that if a person is involved in litiga tion, the Courts can order him to produce all the documents he has which relate to the issues in the case.
Even if they are confidential, the Court can direct them to be produced when the party in possession does not produce them, for the other side to see or at any rate for the Court to see.
When the Court directs production of those documents there is an implied understanding that they will not be used for any other purpose.
The production of these documents in ordinary cases is imposed with a limitation that the side for whose purpose documents are summoned by the Court cannot use them for any purpose other than the one relating to the case involved.
Miss Harman 's case Home office vs Harman, may give some assistance for this aspect of our discus sion.
The facts are as follows: Miss Harman, a Solicitor, acted for a criminal, Michael Williams who was in prison serving a long sentence for robbery of the bank.
He complained that he was subjected to cruel and unusual punishments while in prison contrary to the Bill of Rights and accordingly brought an action for damages against the Home Office.
Miss Harman acted for him as a legal aid counsel.
Miss Harman got an order for discov ery against the Home Office.
The Home Office did not raise any objection regarding the production of the documents.
However, it objected the use of the documents by the Group, called "The National Council for Civil Liberties".
Accord ingly the documents were brought to Court and they were read out in open Court.
Miss Harman passed the bundles of the documents to a journalist and a write up appeared in 'The Guardian ' which was highly critical of the Home Office.
The Home 17 Office took proceedings against Miss Harman for contempt of Court.
She was held guilty for contempt by the High Court and was confirmed by the Court of Appeal and by the House of Lords.
In the Court of Appeal, Lord Denning, despite his liberal views, while upholding the right of the Court to read documents relating to cases while conceding also the liberty to those present in Court to listen when those documents were read and the reporter to take down what was read, did not extend to the press a right to any further use of the confidential documents or any further dissemination of their contents without the consent of the owner.
It is of no use to plead the freedom of the press, he said, that freedom is itself subject to restriction.
Public confiden tial documents, it was said, should be kept confidential in the public interest and should not be exposed to the ravages of outsiders.
When the House of Lords ' decision in Harman vs Secretary of State for the Home Department, upholding the Court of Appeals was rendered, there was great hue and cry that the ruling meant "a black day for press freedom . ".
Even so, Lord Denning regretted that the Court ever ordered disclosure of the documents and observed that the "legal milestone will have to be taken up and set back a bit." In Bachittar Singh 's case (supra), privilege was claimed regarding the production of which was sought, embodied the minutes of the meetings of the Council of Ministers showing the advice which the Council ultimately give to the Rajpra mukh.
This Court held that these documents fell within the category of documents relating to the affairs of State within the meaning of Section 123 of the Evidence Act and were protected under the said Section.
Though the ratio of this decision outlines the conservative view in the law relating to privilege, we are not unmindful of the fact that the doctrine of privilege received a shock treatment against the State at the hands of this Court in the Judges ' case, S.P. Gupta & Ors.
vs Union of India and others etc.
etc., [1982] 2 SCR 365.
May we say that the legal milestone in Gupta 's case, also needs a retreat, a bit.
Before parting with this case we would like to observe the need for restraint and care in dealing with the internal files of the Government.
We have already indicated its privileged position and limited areas where exposure is permissible of the notings in the file.
This is not to say that absolute privilege can be claimed of its exposure and protection from the view of Courts.
But what is to be borne in mind is that the notings in the departmental files by the hierarchy of officials are meant for the independent dis charge of official duties and not for exposure outside.
In a democracy, it is absolutely necessary that its steel frame in the form of civil service is permitted to express itself 18 freely uninfluenced by extraneous considerations.
It might well be that even orders of Court come in for adverse re marks by officers dealing with them, confronted with diffi cult situations to straight away obey such orders.
Notings made on such occasions are only for the benefit of the officers concerned.
When a subordinate official commits a mistake higher official will always correct it.
It is neces sary for Courts also to view such notings in the proper perspective.
In this case, the Court, after looking into the notes file could have passed appropriate orders giving relief to the affected party and expressing its displeasure at the manner in which its order was implemented instead of initiating action on the notings made in the file.
That way the Court would have enhanced its prestige.
It will not serve either the healthy working of the civil service, public interest or democratic norms to pro ceed in contempt against officials solely on the basis of minutes in the internal files, notings which might even be unsavory or even derogatory to an order of the Court, but which get ultimately corrected by the head of the depart ment, ending with an order under Article 166(1) and (2) in the name of the Governor in the proper form.
We are con scious of the fact that the learned Judges felt that there was a deliberate attempt to act against their order.
We are not unmindful of the indignation shown by them at the not ings in the file.
The only reason why we feel constrained to disagree with the High Court 's order is our anxiety to delineate the limits of judicial power while dealing with files of the Government and also of the Public Service Commission, a high Constitutional authority.
It is necessary to have mutual respect among the various wings of the admin istration, in the process of disposal of justice.
We allow these appeals and discharge the contempt orders passed by the High Court with utmost reluctance in view of the far reaching consequences that would flow if the judg ment was allowed to stand.
We are happy that the appellants have tendered their regret and apology to the High Court and have reiterated their regret in this Court also.
H.L.C. Appeals allowed.

Output:
The first Respondent who was discharging the functions of a Public Relations Officer in the Bihar Irrigation De partment when that post fell vacant in 1979, filed a writ petition claiming the post for himself when another person was appointed to that post for six months.
At the time of hearing, it was represented on behalf of the State that the other person had been appointed only on ad hoc basis for a period of six months and that after the expiry of that period, the matter would be referred to the Public Service Commission and that, at that stage, the case of the first Respondent would also be considered.
On this assurance, the petition was allowed to be withdrawn on 19th December, 1979.
However, the assurance was not respected and no reference was made to the Public Service Commission for making a regular appointment to the post, and, in April, 1983, yet another person was appointed to the post, again on ad hoc basis, and the same was challenged by 'another writ peti tion.
When that petition was heard, the Advocate General informed the High Court that the appointment was only ad hoc and gave the impression that a regular appointment would be made after the expiry of six months and, on that representa tion, the High Court disposed of the petition on May 4, 1983, directing inter alia, that the post should be filled up in a regular way, and that, in case the appointment was not made within a period of six months, the ad hoc appoint ment shall stand terminated.
The six months ' period was to expire on October 17, 1983, and according to the State Government, the Irrigation Department had written to the Public Service Commission on April 4, 1983 to give concur rence to the appointment of the ad hoc incumbent since it was an ex cadre post and he had been selected by a Selection Committee but that the concurrence was given only on.
April 2, 1985 and thereafter the matter was further examined with reference to the provisions of the Rules governing reserva tions and a decision was taken to send a requisition to the Public Service Commission for advertising the post.
Accord ingly, the post was advertised on May 12, 1985, setting out the eligibility criteria for selection to the post.
The 2 advertisement was challenged by yet another petition on the ground that the eligibility criteria had been so drafted as to suit only the ad hoc incumbent of the post.
The High Court, which summoned the relevant records from the Govern ment, felt, on their examination, that the direction given by it while disposing of the earlier writ petition on May 4, 1983 had been disregarded, and, issued notices to the appel lants calling upon them to show cause why they should not be punished for contempt for ignoring the order dated May 4, 1983.
The appellants expressed regret but contended that no contempt had been committed by them for the reason that expression of views in the notings made on the files, wheth er they were right or wrong, did not amount to contempt of Court, as no order had been passed appointing the ad hoc incumbent after October 17, 1983.
The officials of the Public Service Commission pleaded that the appointment of the ad hoc incumbent from October 18, 1983 should be treated as a fresh appointment, that they did not know about the order passed by the High Court, and that though concurrence was given, it had been withdrawn when the correct facts were made known to them.
The High Court, after going through the relevant files of the State Government and the Public Service Commission came to the conclusion that, although the State of Bihar as a juristic person was not liable for contempt for the reason that the Chief Minister had minuted that its order must be obeyed and the Chief Secretary had noted that the ad hoc incumbent should not be granted further ad hoc appointment, the appellants, inspire of the advice of the Advocate Gener al that taking any step to appoint the ad hoc incumbent would amount to contempt of Court, were busy trying to find out how to ignore its earlier order.
The High Court further observed that when its earlier direction was that regular appointment should be made through the Public Service Com mission, there was no occasion for seeking the concurrence of the latter for the appointment of the ad hoc incumbent.
According to the High Court, the whole file gave the impres sion that the appellant Officers were not reconciled to the orders passed by it earlier.
In these premises, the High Court convicted the appellants for contempt and the ad hoc incumbent of the post for abetting contempt sentencing each of them to a fine of Rs.50 in default to suffer simple imprisonment for two weeks.
Allowing the appeals and discharging the contempt orders passed by the High Court, HELD: Notings made by officers in the files cannot be made the basis of contempt action against each such officer who makes the notings.
[10D] 3 (i) A government functions by taking decisions on the strength of views and suggestions expressed by the various officers at different levels, ultimately getting finality at the hands of the Minister concerned.
Till then, conflicting opinions, views and suggestions would have emanated from various officers at the lower level.
There should not be any fetter on the fearless and independent expression of opin ions by officers on matters coming before them through the files.
The expression of opinion in internal files are for the use of the department and not for outside exposure or for publicity.
To find officers guilty for expressing their independent opinion, even against orders of courts in de serving cases, would cause impediments in the smooth func tioning of the Government.
[9H; 10A C] (ii) Officers of the Government are often confronted with orders of courts which are impossible of immediate compliance for various reasons.
They may find it difficult to meekly submit to such orders.
On such occasions, they will necessarily have to note in the files, the reasons why the orders cannot be complied with and also indicate that the Court would not have passed those orders if full facts were placed before them.
The notings differ from officer to officer.
It may well be that the notes made by a particular officer, technically speaking, is in disobedience of an order of the Court or may be in violation of such order, but a more experienced officer sitting above him can always correct him.
We must guard against being over sensitive, when we come across objectionable notings made by officers, some times out of inexperience, some times out of over zealousness and some times out of ignorance of the nuances of the question of law involved.
[11A B] (iii) The functioning of the Government in a State is governed by article 166 of the Constitution.
A study of this Article makes it clear that the notings in a file get culmi nated into an order affecting rights of parties only when it reaches the head of the department and is expressed in the name of the Governor and authenticated in the manner provid ed in article 166(2).
Viewed in this light, it cannot be said that what is contained in a notes file can ever be made the basis of an action either in contempt or in defamation.
The notings in a notes file do not have behind them the sanction of law as an effective order.
It is only an expression of a feeling by the concerned officer on the subject under re view.
To examine whether contempt is committed or not, what has to be looked into is the ultimate order.
The expression of opinion in notes file at different levels by concerned officers will not constitute Criminal Contempt; it would not constitute Civil Contempt either, for the reason that mere expression of a view or suggestion will not bring it within the vice of sub section
(c) ors.
2 of the , [12A E] 4 Bachhittar Singh vs State of Punjab, [1961] Supp.
3 S.C.R. 713, relied on.
(iv) The internal notes file of the Government, main tained according to the Rule of Business, enjoys quasi privilege and a disclosure in such communications cannot be made the basis of an action in contempt.
The general princi ple on which confidentiality of State documents should be protected is that if a person is involved in litigation, the Courts can order him to produce all the documents he has which relate to the issues in the case.
Even if they are confidential, the Court can direct them to be produced when the party in possession does not produce them, for the other side to see, or, at any rate, for the Court to see.
When the Court directs production of these documents there is an implied understanding that they will not be used for any other purpose.
The production of these documents in ordinary cases is imposed with a limitation that the side for whose purpose documents are summoned by the Court cannot use them for any purpose other than the one relating to the case involved.
[10E F] Home Office vs Harman, ; Harman vs Secretary of State for the Home Department, and S.P. Gupta ' vs Union of India, [1982] 2 S.C.R. 365, referred to.
(v) In this case, the Court, after looking into the notes file could have passed appropriate orders giving relief to the affected party and expressing its displeasure at the manner in which its order was implemented instead of initiating action on the notings made in the file.
That way the Court would have enhanced its prestige.
[18B C]