TMI Blog1950 (9) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... operty, it is these two orders of requisition acquisition which are being challenged by the pltfs. in this suit. The pltfs'. contention is that they are still the owners of this property free from requisition or acquisition ordered under these two orders. 2. In order to understand appreciate the contentions of the parties, it is necessary to look into the provisions of the law under which these two orders were made. Under Rule 79 (1), which is a rule made under Section 2 (2), Defence of India Act, 1938, power was given to the Central Govt. to requisition property, provided in the opinion of that Govt. ic was necessary or expedient so to do for securing the defence of British India, the public safety, the maintenance of public order, or the efficient prosecution of war, or for maintaining supplies services essential to the life of the community. Under Sub-clause (2) of that rule where land was requisitioned by the Central Govt, the Central Govt. had the power to dispose of use such land in such manner as it thought fit. A notfn. was issued on 26-4-1941, by which the powers which the Central Govt. had under Rule 79 (1) were also conferred upon the Provincial Govt. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fety bhe efficient prosecution of war to requisition the land (the particulars of which are set out) in exercise of the powers conferred by Rule 79, Defence of India Rules read with Govt. of India notfn. dated 4-10-1941, the Collector by that order requisitioned the land from the date of the order. Therefore, it is clear that this order of requisition was issued by the Collector by virtue of the powers delegated to him by bhe Central Govt. under bhe notfn. of 4-10-1941, to which reference has been made. The order of acquisition--strictly it is a notice dated 28-10-1942 --was also issued by bhe Collector of Bombay pursuant to the notfn. of 25-4-1942, by which the power to acquire was delegated to him by the Central govt. These two orders were challenged by the pltfs. on various grounds, these grounds as appear from the plaint were : (1) That the Provincial Govt. has no authority to requisition the land under Section 79; (a) that the requisition was made at the instance of the Govt. of Bombay in support of that it was stated that bhe possession of the land was also taken by the Govt. of Bombay; (3) bhab the Govt. of Bombay did not require bhe land for any purpose mentioned in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovt. of bhe grievance that the subject has to give to Govt. an opportunity be redress that grievance before it is brought to Cb. The section is not intended to be an instrument of oppression against the subject. It is perfectly brue than the P. C. in Bhagchand Dagadusa v. Secretary. of State laid down that Section 80 was express, explicit mandatory admitted of no implications or exceptions. But even so, as pointed out by Sir John Beaumont in Chandulal v. Govt. of Bombay AIR1943Bom138 the section should be construed with some regard to commonsense to the object with which it appears to have been passed. 5. The submission of Mr, Seervai is that the amendment proposed by the pltfs. would insert a new cause of action in the plaint therefore the provisions of Section 80 would be contravened inasmuch as no notice was given with regard to that new cause of action. It is, therefore, necessary to consider what the proposed amendment is what its effect is. The proposed amendment is in the following terms : ''The pltfs. say that the Collector of Bombay made the said orders at the direction under the orders from deft. 2. The pltfs. say that in making the said orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of the order that invalidity according to the pltfs. is due to the fact that the order was made for a collateral purpose was also made mala fide. In the notice it is explicitly stated as one reason why according to the pltfs. the order was not made for the purposes for which the order stated it was made. But the notice goes on to state generally that the order was not made for the purposes for which it was purported to have been made it also generally challenges the order on the ground of want of bona fides. The amendment gives another ground in support of the contention of the pltfs. as to why the order was not made for the purposes for which it was purported to have been made ifc also furnishes another ground why the order was not made bona fide. In my opinion, the amendment does not introduce into the plaint a new or fresh cause of action. The cause of action is the same as alleged in the notice. All that the amendment does is that it gives further grounds in support of the contentions allegations which go to constitute the pltfs'. cause of action. I agree with Mr. Seervai that para. 6 of the plaint does not set out this particular ground which is sought to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the suit, the Ct. must be satisfied that there is a proper compliance with the provisions of Section 80. It cannot be said that the Govt. were not fully aware of what the pltfs. were seeking in the suit on what facts their reliefs were based. The pltfs. reliefs were based mainly entirely on the challenge which they made to the order of requisition acquisition which the Govt. have passed the Govt. knew that they would have to support the validity of the order in order that the pltfs. should not be entitled to the relief which they sought. 7. Mr. Seervai has strongly relied on a decision of the P. C. reported in Mohammad Khalil Khan v. Mahbub Al In that case the P. C. was considering the correct test which should be applied in determining whether in cases falling under Order 2, Rule 2, the claim in a new suit was in fact founded upon a cause of action distinct from that which was the foundation for the former suit. At p. 18 their Lordships laid down the various principles which should guide the Ct. in determining whether the cause of action in one suit was different from the cause of action in another suit, one of the principles on which Mr. Seervai has laid considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int that any fraud was practised upon the pltfs. by the Collector of Bombay. It is clear that when such an allegation is made, the party alleging the fraud is in possession of the particulars of the fraud practised upon him. Fraud in such a case is an objective fact known to the party complaining of it, in such a case the law requires that particulars of such an objective fact must be given. Similar is the oase with breach of trust, wilful default, or undue influence or misrepresentation, all covered by the provisions of Order 6, Rule 4. But when a party is complaining of a state of mind of the other party making a grievance of that state of mind, it is impossible to expect that party to give particulars of something which is subjective as far as the other party is concerned, the law has taken notice of this difficulty has provided it by Order 6, Rule 10, that wherever it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred. Therefore, both in alleging mala fides attacking the order on the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... altering the printed form certain confusion has been caused because all the alterations have not been made to fit in with the particular case contemplated by this agreement. The agreement provides that the Govt. shall pay the owner shall accept receive under protest a sum of ₹ 22,29,770 on account of the compensation for the land structures. Therefore it is clear that the pltfs. did not accept the sum of ₹ 22,29,770 in full in respect of the acquisition of their land. The sum was received by them on account under protest the protest clearly indicating that their rights were not concluded as regards the amount of compensation by their acceptance of ₹ 22,29,770. Clause 6 of the agreement further provides that should there be any dispute or difference concerning the subject-matter of these presents, the dispute should be referred to an arbitrator to be appointed by Govt. the decision of such arbitrator should be conclusive binding on the parties. These ₹ 22,29,770 were paid by Govt. a receipt was passed in this receipt the pltfs. clearly stated that the two amounts aggregating to ₹ 22,29,770 were received by them under protest without pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doubts disputes arrive at a certain payment on the basis of such settlement, if such settlement is arrived at, it would not be open to either party to raise legal disputes which have already been settled. That as an academic proposition is perfectly sound, but unfortunately that proposition has no bearing on the facts of this case. Mr. Seervai relies on a power of attorney which was given by the pltfs. on 7-8-1943, to Nagindas Purshottamdas Patel Manibhai Hathibhai Patel with regard to this very property, among the powers given to the attorneys was to lodge objections to the said orders of requisition acquisition to prosecute the said objections according to law. Mr. Seervai says that the attorneys who entered into the agreement had the power to object to the orders of requisition acquisition, having the power they gave it up arrived at a settlement which included the giving up of any rights that the pltfs might have had to challenge the two orders. The mere fact that the attorneys under the power of attorney had the power to object to the two orders does not lead one to the conclusion that in fact before the agreement was entered into any objection was lodged o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly enacted under Rule 75A as subsequently enacted, the two conditions which have to be satisfied before jurisdiction could be exercised by the Collector to requisition any property were that the requisitioning had to be for securing the defence of British India, the public safety, the maintenance of public order, or the efficient prosecution of war or .for maintaining supplies services essential to the life of the community, an opinion had to be formed by the requisitioning authority that it was necessary or expedient so to do. There was no power in the Collector or the other requisitioning authority mentioned in the rules to requisition property except on the satisfaction of these two conditions. Therefore, if the pltfs could establish that the property was not required for the purposes mentioned in the rules, or that the Collector did not form his own opinion, then there would be no power in the Collector to requisition the property. It would not be a case of irregular exercise of a power or of jurisdiction but an exercise of jurisdiction or power which the requisitioning authority did not possess. The absence of these two conditions would not be merely the failure to carry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty was for the purpose of its utilisation after the present war by the Govt. of Bombay for police accommodation. It is true that no evidence was led by the pltfs. to substantiate this case, but, as I shall presently point out, as the suit will have to be remanded for certain purposes, we would give an opportunity to the pltfs. to prove this case if they can do so by any evidence they can lead at the hearing. 14. The orders were also challenged on the ground that the object of these orders was to deprive the pltfs. of the 15 per cent. which they were entitled to under the Land Acquisition Act on the fair market value the Govt). instead of acquiring the land under the Land Acquisition Act deliberately did so under the Defence of India Rules for this purpose. I agree with the learned Judge that if in law it was open to the Govt. to acquire the land under the Defence of India Rules if there was no liability upon them to pay the 15 per cent., then there was no obligation on Govt. neces sarily to acquire the land under the Land Acquisition Act. The very purpose of the Defence of India Rules was that property which was required for the war should be acquired for a smaller amount t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there must be an adjudication that the documents in respect of which privilege is claimed are official records relating to affairs of State. The principle of the section is that it is not all records relating to the affairs of State that are privileged, but only those the disclosure of which would result in an injury being caused to public interests. The section gives effect to the principle that public interests must be paramount private interests must give way when there is any conflict between public private interests. Section 162, Evidence Act, deals with production of documents it makes it incumbent upon a witness summoned to produce a document, if it is in his possession or power to bring it into Ct. notwithstanding any objection which there may be to its production or to its admissibility. He may even put forward his objection the validity of such objection has to be decided by the Ct. Then the section gives the power to the Ct. to inspect the document or tu take other evidence to enable it to determine on its admissibility .But the section precludes the Ct. from inspecting any document which refers to matters of State. Therefore, again, under this section the validi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has fully satisfied himself that the document whose disclosure is being resisted is really a document relating to the affairs of State whose disclosure will result in injury to public interests. The scales are always weighed against the subject who fights against Govt., Govt. should be loath to throw against him more weight in the scales by refusing disclosure of documents which are relevant to the issues in the suit. Govt. should always bear in mind that it is incumbent upon it to see that there is a fair trial between itself the subject who is fighting the Govt. It should also realise that refusal to disclose material documents makes it difficult or impossible for the subject to make good his allegations against the Govt. Govt. should also bear in mind that the loyalty of its officers to the cause of Govt. should not prevail to the extent of injustice being done to the subject. Even if disclosure of a document may result in the subject succeeding or in getting beavy damages or compensation against the Govt. that is no reason why a material document should not be disclosed. The only loyalty which the section contemplates which must undoubtedly prevail over private intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supporting the case against Govt., that of itself should be a compelling reason for its production only to be over-borne by the gravest considerations of State policy or security. Then their Lordships confirm the view of Griffiths C. J. in Marconi's Wireless Telegraph Co. v. The Commonwealth 16 C. L. R. 178, that the Ct. has in these cases always had in reserve the power to inquire into the nature of the document for which protection is sought, to require some indication of the nature of the injury to the State which would follow its production. Then at p. 718 dealing with the opinion that the Minister or the head has to form with regard to the nature of the document they say that the statement opinion of the Minister, which the Ct. is asked to accept, is one that has not been expressed inadvisedly or lightly or as a matter of mere departmental routine, but is one put forward with the solemnity necessarily attaching to a sworn statement, in this particular case their Lordships thought that the minute made by the Attorney-General with regard to this document that the disclosure of the document was contrary to public policy that the public service public interest wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s himself have formed the view that on grounds of public interest they ought not to be produced, either because of their actual contents or because of the class of documents, e. g., departmental minutes, to which they belong. But he is at pains to point out that a statement on affidavit is only for convenience, if the Ct. is not satisfied, it is always open to the Ct. to request the Minister's personal attendance. Then he deals with the second question he quotes with approval the observations of Pollock C. B. in the case of Beatson v. Skene (1860) 5 H. N. 838 : 29 L. J. Ex. 430 : We are of opinion that, if the production of a State paper would be injurious to the public service, the general public interest must be considered paramount to the individual interest of a suitor in a Ct. of justice ; and the question then arises, how is this to be determined ? It is manifest it must be determined either by the presiding Judge, or by the responsible servant of the Crown in whose custody the paper is. The Judge would be unable to determine it without ascertaining what the document was, why the publication of it would be injurious to the public service--an inqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to good diplomatic relations, or where the practice of keeping a class of documents secret is necessary for the proper functioning of the public service. And the learned Lord Chancellor ends up with these eloquent words (p. 643) : After all, the public interest is also the interest of every subject of the realm, while in these exceptional cases, the private citizen may seem to be denied what is to his immediate advantage, he, like the rest of us, would suffer if the needs of protecting the interests of the country as a whole were not ranked as a prior obligation. 20. Now, Mr. Seervai has relied on this decision in order to urge that the earlier decision of the P. C. has been disapproved by the House of Lords we should accept the House of Lords as laying down the correct law on the question of privilege claimed by the State. The disapproval of the P. C. is to be found in the judgment of the learned Lord Chancellor at p. 641, , in my opinion, that disapproval is restricted to the conclusion arrived at by the P. C. that in Australia under the relevant rule the Ct. was competent to inspect a document in respect of which privilege was claimed by the State on the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i has also emphasised the fact that according to Viscount Simon an objection taken by a Minister or a head of the department is conclusive the Ct. cannot go behind that objection. I do not read the House of Lords' judgment to lay down any such wide proposition. At various places Viscount Simon has emphasised the fact that the objection is conclusive provided it is validly taken. It is, therefore, for the Ct. to determine whether the objection has been validly taken, it is only if the Ct. comes to the conclusion that the objection taken is valid, that the opinion of the Minister or the head of the department becomes conclusive as to the nature of the document. My brother Bhagwati J. had to consider a similar question in Ghamarbaghwalla v. Y. R. Parpia,: AIR1950Bom230 . In a careful judgment he has considered both the decision of the P. C. of the House of Lords he has taken the view that the law was correctly laid down by the P. C. that it was for the Ct. to decide whether a document fell within the category of unpublished official records relating to the affairs of the State, that in doing so the Ct. could have regard to all the circumstances, barring the inspection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as a class, and the privilege is claimed on the ground that disclosure of this class of documents would affect the proper functioning of public service. It is pointed out by Mr. Desai that Govt. has already disclosed documents which are communications between heads of departments and it is, therefore, impossible to believe that other similar communications could fall in a class of documents, the disclosure of which would result in the proper functioning of public service being interfered with. It is pointed out that a document has been disclosed by Government dated 31-3-1942, Ex. c, and an identical document Ex. E, one being a draft of the other, which purports to be an order of the Secretary to the Govt. of Bombay, Revenue Department, communicated to the Collector of Bombay, and which order recites that Govt. had decided that the Old Petit Mill site at Tardeo should be requisitioned immediately and the Collector was requested to take the necessary action. In this order, a reference is made to the correspondence ending with a letter dated 4-8-1942. It is clear that this document constitutes a decision arrived at by Govt. as a result of correspondence which ended with the letter o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the case of the pltfs. and Mr. Desai has in all solemnity made an application before ua that he should be permitted to prove this document and that for that purpose if necessary additional evidence should be taken by this Court. Mr. Desai forgets that if privilege is claimed) by Govt. with regard to the letter of 20-4-1942, as indeed it has claimed, we are precluded from looking at the document or considering: Us contents. The position of the pltfs. does not improve by reason of the fact that they have got hold of a copy of this document by, very likely, some unworthy method. If the original of the document is privileged, surely that privilege cannot be got over by litigants getting hold of copies surreptitiously of the document from the Secretariat and asking the Court to look at the secondary evidence of the document. Parties are sometimes apt to overlook the fact in their, what seems to them, justified indignation that the whole doctrine of privilege is based, as I pointed out earlier, upon public interest, and we must assume, unleaa contrary is shown, that privilege is claimed on that ground. The indignation of the party who may feel that his oauae is being lost by the refusa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department should be disclosed by deft. 1. With regard to item No. 2 there is an oath which must be conclusive that these documents are not in existence. Item No. 3 has not been pressed by Mr. Desai. With regard to item No. 4, although an oath has been taken that these documents are not in existence, there is a document on the record which clearly shows that there must be some documents relating to item No. 4 which must be or must have been in possession of the Govt. of India. On the reverse Ex. E there is a draft of a letter to the Controller of Supplies, Bombay, from the Collector of Bombay. Therefore, it is clear that there was correspondence with regard to this land between the Controller of Supplies and the Collector of Bombay. Therefore deft. 1 must disclose all documents relevant to the suit which fall in item No. 4. With regard to item No. 5 deft 1 will also disclose all documents and all entries in respect of rent paid by deft, l to deft. 2 for the occupation of the premises in suit for the purpose of supplies. Defendant 1 will make an affidavit of documents in the usual form disclosing documents which are is their possession, and if the documents are not in their possess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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