N.Jothi Vs. the Secretary, Department of Home, Government of Tamil Nadu and Others - Court Judgment

Excerpt:
indian evidence act, 1872 - section 123 and section 124 -(this miscellaneous petition is filed under article 226 of the constitution of india, praying for a direction to the respondents herein to produce the records relating to the security coverage provided to the petitioner from its inception till date.) pending disposal of the main writ petition seeking a mandamus to enhance the security cover given to the petitioner and to his residential house, the petitioner has come up with the above miscellaneous petition, seeking a direction to the respondents to produce the records relating to the security coverage provided to the petitioner from its inception till date. 2. i have heard mr.n.jothi, petitioner appearing in person and mr.a. navaneethakrishnan, learned advocate general, assisted by mr.m.c.swamy, learned special government pleader appearing for the respondents. 3. the petitioner is an advocate. he was also a member of parliament during the period from 2002-2008. 4. according to the petitioner, he was informed by a high ranking police official in the year 2003 that there was a threat perception to his life and that therefore, the state would provide personal security officers. accordingly, he was provided security officers from the year 2003-2006. according to the petitioner, the security cover was withdrawn in the year 2006. 5. challenging the withdrawal of the security cover, the petitioner filed a writ petition in w.p.no.14926 of 2006. the said writ petition was dismissed by an order dated 5.10.2006. the said order attained finality. 6. it is the case of the petitioner that he was a member of one political party from which he came out in the year 2008. it appears that in the year 2009, he was again provided security cover. the security cover was withdrawn in a meeting of the security review committee held on 20.5.2011. therefore the petitioner came up with the above writ petition seeking a mandamus to direct the respondents to enhance the security cover from 'y' category to 'y+' category. the writ petition was moved during the summer recess of the year 2011 on 26.5.2011. while ordering notice, this court passed an interim order, directing the respondents to continue to provide security under 'y' category. 7. thereafter, the writ petition was admitted in october 2011 and the respondents filed a counter affidavit to the main writ petition. the petitioner then filed a reply to the counter. 8. subsequently, when the respondents came up with an application in m.p.no.1 of 2012 to vacate the interim order, the petitioner filed the above miscellaneous petition, seeking a direction to the respondents to furnish the records relating to the security cover provided to the petitioner from the beginning viz., 2004 till date. in the above application, a counter affidavit was filed by the additional secretary to government, home department, seeking privilege. therefore, the petitioner filed a reply, to the counter affidavit filed by the respondents in the above miscellaneous petition. 9. thereafter, the petitioner as well as the learned advocate general argued the above miscellaneous petition, since the arguments in the main writ petition would depend upon the fate of the above miscellaneous petition. 10. in the light of the facts detailed above, the question that arises for consideration is as to whether the claim of privilege made by the respondents should be sustained or not. 11. in the counter affidavit filed by one mr.p.seetharaman, additional secretary to government, home department, privilege is claimed in terms of sections 123 and 124 of the indian evidence act, 1872. the petitioner made a similar prayer for production of records even in his previous writ petition w.p.no.14926 of 2006, by filing a miscellaneous petition in w.p.m.p.no.17754 of 2006. but by a final order dated 5.10.2006, k.chandru, j., dismissed not only the miscellaneous petition, but also the main writ petition. therefore, the respondents not only claim privilege in terms of sections 123 and 124, but also claim that the issue is already covered by the earlier order, rejecting a similar prayer. 12. however, the petitioner contends, in his reply affidavit, that the claim for privilege made by the respondents, cannot be sustained for the following reasons:- (i) section 123 can be raised only when the records relate to the affairs of the state and only when the head of the department had taken a decision not to produce the records on the ground that their production will be against the public interest. but in this case, the head of the department has not filed the affidavit. it is only the additional secretary to the government, who has filed the affidavit. (ii) section 124 has no relevance to the case on hand, since it relates to communications in official capacity. the order passed in the previous writ petition sustaining the claim of privilege raised by the respondents, cannot prevent the petitioner from opposing the claim of privilege in the present writ petition, since there have been change of circumstances. after the dismissal of the first writ petition (and after the petitioner joined the then ruling party), the state provided security to the petitioner from 2009. again after the change of government in may 2011, the security cover was withdrawn. therefore, due to these change of circumstances and due to the frequent shift in the position taken by the respondents, mr.n.jothi contends that the order in the first writ petition would not prevent me from having a fresh look at the issue. his question in short is as to how the state perceives a threat to his life, whenever he is in the ruling party and how such threat perception disappears when he goes out of the ruling party. 13. i have carefully considered the pleadings and the contentions. 14. it is true that the petitioner made a similar prayer in w.p.m.p.no.17754 of 2006 in his previous writ petition w.p.no.14926 of 2006. the respondents claimed privilege. in paragraph 18 of the final order passed in the writ petition on 5.10.2006, k.chandru, j., framed 4 issues for consideration. the first issue was as to whether the petitioner is entitled to the documents sought for in the miscellaneous petition. the second issue raised was as to whether the claim of privilege raised by the state can be sustained or not. 15. the discussion with regard to both these issues are found in the decision from paragraph 19.1 to 19.6. in paragraph 19.6, the learned judge sustained the claim of privilege made by the state. 16. it must be pointed out that even in that case, it was only the deputy secretary who filed the affidavit claiming privilege. but after considering the decisions of the supreme court in (i) peoples union of civil liberties vs. union of india {2004 (2) scc 476} (ii) r.k.jain vs. union of india {1993 (4) scc 119 and (iii) s.p.gupta vs. union of india {1981 supp. scc 87}, the learned judge came to the conclusion that the claim of privilege has to be sustained. therefore, prima facie, it appears that the petitioner is bound by the said order and he cannot re-litigate the same issue. 17. but i cannot also lose sight of the fact that after the dismissal of the first writ petition, the petitioner claims to have joined the then ruling party. thereafter, he was provided security cover in the year 2009, which he continued to enjoy till the said party lost power in 2011. therefore, it would certainly be baffling to the petitioner as to how the state perceives a threat to his life whenever he is in the ruling party, just as it may be baffling to some, as to why he switched loyalty from one political party to another. hence, in view of the subsequent developments pleaded by the petitioner, i would choose to examine the issue afresh, despite the fact that the issue is already considered by k.chandru, j., in the first writ petition. since the issue relates to the life of an individual, it would be better to examine the issue once again rather than shutting the door for the petitioner. 18. in order to find an answer to the question raised here, it is necessary to take note of sections 123 and 124 of the indian evidence act, 1872 and the law laid down in the various decisions of the supreme court. section 123 of the evidence act, mandates that no one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of state, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit. in order to satisfy the requirements of section 123, two things have to be satisfied viz., (i) the record concerned must be an unpublished official record and (ii) it must relate to any affairs of state. the person competent to give permission to give evidence from such record is also indicated to be the officer at the head of the department. therefore, to test the applicability of section 123, two expressions are of significance viz., (i) affairs of state and (ii) officer at the head of the department. 19. under section 124, no public officer can be compelled to disclose the communications made to him in official confidence when he considers that public interest would suffer by the disclosure. therefore, to claim privilege under section 124, it is enough if the public officer satisfies the court that the record in his possession is in official confidence and that he considers that public interest would suffer by the disclosure. in other words, to invoke the privilege under section 124, it is enough if the officer concerned is a public officer and not the head of the department. similarly, it is enough if he considers that public interest would suffer by the disclosure, even if it does not concern the affairs of the state. 20. the scope of the expression "affairs of the state" appearing in section 123 was examined by a constitution bench of the supreme court in state of punjab vs. sodhi sukh dev singh {air 1961 sc 493}. interestingly, the said case arose out of a civil suit praying for a declaration that the removal from service of a district and sessions judge, was illegal, null and void. in the suit, an application was taken out under order xiv, rule 4 of the code of civil procedure for production of certain documents. the chief secretary claimed privilege under section 123. the claim for privilege was upheld by the trial court. but in a revision under section 115 of the code of civil procedure and article 227 of the constitution, a division bench of the punjab high court reversed the order of the trial court and directed production of the documents. the state of punjab obtained leave and the matter was referred to a constitution bench. pointing out that the expression "affairs of the state" in the later half of the 19th century may have had a comparatively narrow content, p.b. gajendragadkar, j., indicated, in paragraph 15, that the documents in respect of which privilege is claimed may fall under different categories. one set of documents may relate to matters of political or administrative character such as national defence, public peace, security and good neighbourly relations. another set of documents may not be so sensitive in terms of their contents, but they may, if disclosed, materially affect the freedom and candour of expression of opinion in the determination and execution of public policies. notes and minutes made by the respective officers on the relevant file, opinion of experts or reports made and the gist of official decisions reached in the course of determination of questions of policy would fall under this category. these categories of documents, it was pointed out by the court, if disclosed, would impair the proper functioning of the public service. it was also pointed out in paragraph 17 of the said decision that when the legislature has advisedly refrained from defining the expression "affairs of the state" it would be in-expedient for judicial decisions to put the expression in a straight jacket definition. 21. after referring to section 162, the court pointed out in paragraph 21 of the decision that the expression "matters of state" referred to in second clause of section 162 is identical with the expression "affairs of state" in section 123. on the question as to how such privilege should be claimed, the court held in paragraph 23 that privilege should be claimed generally by the minister in-charge, who is the political head of the department and if not, by the secretary of the department. the claim should always be made in the form of an affidavit. eventually, in paragraphs 25 and 26, the court summarised its conclusions as follows:- "25. thus our conclusion is that reading sections 123 and 162 together the court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in question. that is a matter for the authority concerned to decide; but the court is competent, and indeed is bound, to hold a preliminary enquiry and determine the validity of the objections to its production, and that necessarily involves an enquiry into the question as to whether the evidence relates to an affair of state under section 123 or not. 26. in this enquiry the court has to determine the character or class of the document. if it comes to the conclusion that the document does not relate to affairs of state then it should reject the claim for privilege and direct its production. if it comes to the conclusion that the document relates to the affairs of state it should leave it to the head of the department to decide whether he should permit its production or not. we are not impressed by mr.seervai's argument that the act could not have intended that the head of the department would permit the production of a document which belongs to the noxious class. in our opinion, it is quite conceivable that even in regard to a document falling within the class of documents relating to affairs of state the head of the department may legitimately take the view that its disclosure would not cause injury to public interest. take for instance the case of a document which came into existence quite some time before its production is called for in litigation; it is not unlikely that the head of the department may feel that though the character of the document may theoretically justify his refusing to permit its production, at the time when its production is claimed no public injury is likely to be caused. it is also possible that the head of the department may feel that the injury to public interest which the disclosure of the document may cause is minor or insignificant, indirect or remote; and having regard to the wider extent of the direct injury to the cause of justice which may result from its non-production he may decide to permit its production. in exercising his discretion under section 123 in many cases the head of the department may have to weigh the pros and cons of the problem and objectively determine the nature and extent of the injury to public interest as against the injury to the administration of justice. that is why we think it is not unreasonable to hold that section 123 gives discretion to the head of the department to permit the production of a document even though its production may theoretically lead to some kind of injury to public interest. while construing sections 123 and 162, it would be irrelevant to consider why the enquiry as to injury to public interest should not be within the jurisdiction of the court, for that clearly is a matter of policy on which the court does not and should not generally express any opinion." 22. interestingly, j.l.kapur and k.subba rao, j.j., concurred with p.b.gajendragadkar, j., in so far as the fundamental principles of law are concerned. but j.l.kapur, j., struck a note of dissent on the question on the extent to which the court can go in examining the documents. k.subba rao, j., disagreed with both of them in so far as one of the documents on which claim of privilege was made. eventually by a majority, the appeal of the state was allowed and the claim of privilege was sustained. 23. in amar chand butail vs. union of india {air 1964 sc 1658}, another constitution bench of the supreme court, reiterated the principles laid down in sodhi sukh dev singh. the decision in sodhi sukh dev singh, was read in amar chand butail to lay down two principles of law. they are:- (i) though the court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in question, the court is competent to hold a preliminary enquiry and determine the validity of the objection to its production. it necessarily involves an enquiry into the question as to whether the documents relate to affairs of state under section 123. since section 123 confers wide powers on the heads of the department, they should act with scrupulous care in exercising their right. they should never claim privilege mainly on the ground that the disclosure of the document may defeat the defence raised by the state. (ii) the claim of privilege has to be made in a specific manner. it should be made either by the minister in-charge, who is the political head of the department or by the person, who is the head of the department. the affidavit should disclose that the deponent is satisfied with respect to each document that its disclosure would lead to public injury. 24. in the sub divisional officer vs. raja srinivasa prasad singh {air 1966 sc 1164}, yet another constitution bench reiterated the principles laid down in sodhi sukh dev singh and amar chand butail and held that the heads of departments should file necessary affidavits for claiming privilege. 25. next came the famous case of state of u.p. vs. raj narain {1975 (4) scc 428}. raj narain filed an election petition on the file of the high court of allahabad, challenging the election of smt.indira gandhi. in the election petition, raj narain took out an application for summoning certain witnesses along with certain documents. when summons were issued to the witnesses, an under secretary appeared in court, claiming privilege in respect of 3 documents, one of which was known as the 'blue book', containing the rules and instructions for the protection of the prime minister when on tour or in travel. the allahabad high court held that privilege was not claimed in a proper manner, in the sense that there was no affidavit and that the witness came along with the blue book, without even putting it in a sealed cover. an affidavit filed at a later point of time by the chief secretary was not accepted by the high court. the high court also held that it is not an unpublished official record, since the blue book was quoted by a member of parliament. when the state of up took the matter by way of appeal to the supreme court, the supreme court laid down the following propositions:- (i) public interest which demands that evidence be withheld, is to be weighed against public interest in the administration of justice which requires courts to have the fullest possible access to all relevant materials. when public interest of the former nature outweighs the public interest of the latter type, then the evidence cannot be admitted. (ii) an objection to the production of document can be raised by an affidavit affirmed by the head of the department. the court may also require a minister to affirm an affidavit. that will arise in the course of an enquiry by the court as to whether the document should be withheld from disclosure. (iii) if the court is satisfied with the affidavit evidence that the document should be protected in public interest from production, the matter ends there. if the court would yet like to satisfy itself, the court may see the document. this will be by the inspection of the document by the court. (iv) where no affidavit is filed, the court can direct an affidavit to be filed. if an affidavit is defective, an opportunity can be given to file a better affidavit. even a further affidavit can be directed to be filed in that behalf. 26. in raj narain, k.k.mathew j., delivered a separate but concurring judgment. but even in his opinion, he pointed out that if the averments in the affidavit are not full or complete, the court will be at liberty to call for further affidavits. if on the basis of the averments in the affidavits, the court is satisfied that the document is entitled to protection, no further question would arise. in such a case, the question of inspection of that document by court, will not arise. however, if the court is satisfied that the document does not belong to that class and that the available material is not sufficient to conclude that the disclosure will injure public interest, it will be open to the court to inspect the document and examine whether it relates to affairs of state and whether its disclosure will injure public interest. after laying down the above propositions, k.k.mathew, j., held in paragraph 87 that if the court holds, after inspection, that any part of the document does not relate to the affairs of state and that its disclosure would not injure public interest, the court will be free to disclose that part and uphold the objection as regards the rest, provided it will not give a misleading impression. 27. after the case of raj narain, came the decision in s.p.gupta vs. union of india {1981 supp. scc 87}. the question that arose in that case was whether the correspondence exchanged between the chief justice of the high court and the chief justice of india, on consultation, form part of the advise protected under article 74(2) of the constitution. tracing the entire evolution of law, p.n.bhagwati j., pointed out that the meaning and content of section 123, cannot remain static and that it must be interpreted, keeping in view our new democratic society wedded to the basic values enshrined in the constitution. in paragraph 67 of the judgment, p.n.bhagwati j., pointed out that disclosure of information in regard to the functioning of the government must be the rule and secrecy an exception, justified only where the strictest requirement of the public interest so demands. he further pointed out that "the approach of the court must be to attenuate the area of secrecy as much as possible consistently with the requirement of public interest, bearing in mind all the time that disclosure also serves an important aspect of public interest". he further pointed out that the court is not bound by the assertions made by a minister or the head of the department and that a court retains the power to balance the injury to the state or the public service against the risk of injustice, before reaching the decision. 28. five learned judges on the bench (gupta j., tulzapurkar j., d.a.desai j., pathak j., and e.s.venkataramiah j.), concurred with the views expressed by p.n.bhagwati j, but murtaza fazal ali j., stuck a note of dissent. while expressing his concurrence, d.a.desai j., noted that section 123 is a century old provision, enacted to some extent keeping in view the needs of empire builders and that it should change in the context of republican government and the open society that we have set up. similarly, r.s.pathak j., pointed out that the law in this regard had to be taken forward from the position enunciated in sodhi sukh dev singh. venkataramiah, j., also pointed out that the tendency in all democratic countries in recent times, is to liberalise the restrictions and that the emphasis now is more on the right of a citizen to know than on his need to know. 29. the significance of the decision in raj narain is that it sought to strike a balance between public interest favouring secrecy vis-a-vis public interest in the administration of justice favouring fullest possible access for the courts, to all documents. the significance of s.p.gupta is two-fold namely (i) that it recognised that disclosure, just as secrecy, also serves an important aspect of public interest and (ii) that to some extent, it shifted the focus from the need to know, to the right to know. the iron curtains built by section 123 around official documents, was melted by s.p.gupta, to some extent, so that these curtains could be raised at the drop of the judicial hammer. 30. after s.p.gupta came the decision in state of bihar vs. kripalu shankar {1987 (3) scc 34}., there, the supreme court, while holding that notings made by the officers in the files cannot be made the basis of contempt action, also held that the internal notings are privileged documents. in paragraph 13 of the decision, the court held that the internal notes file of the government, maintained according to the rules of business, is a privileged document and that if the government claims privilege or quasi privilege regarding notes file, the court will not be justified in rejecting the claim outright. though the court also held that it had the right to look into any file, the court held that the contents of the notes file, cannot be communicated. 31. in r.k.jain vs. union of india {air 1993 sc 1769}, the supreme court reiterated the principles of law evolved in raj narain and s.p.gupta. but in peoples union of civil liberties vs. union of india {2004 (2) scc 476}, the court examined the question of privilege enunciated in section 123 of the evidence act, in the context of the right to information arising out of the fundamental right guaranteed under article 19(1)(a) of the constitution and the reasonable restrictions that the state is entitled to impose upon such fundamental right, under article 19(2). the court clarified in paragraph 61 that the decisions of the constitution bench both in raj narain and in s.p.gupta, were silent on the relationship between the restrictions which should be placed on the right to know and the restrictions existing under article 19(1)(a) of the constitution. after taking up for consideration, the criteria for determining the question of privilege from paragraph 68 onwards, the supreme court held that the court is obliged to pose two questions for determining the issue when a claim of privilege is made. the questions are:- (i) whether the document in respect of which privilege is claimed, is really a document relating to any affairs of state and (ii) whether a disclosure of the contents of the document would be against public interest ? 32. in paragraph 71, the court pointed out that when any claim of privilege is made by the state in respect of any document, the question whether the document belongs to the privileged class, has first to be decided by the court. but the court cannot hold an enquiry into the possible injury to public interest, which may result from the disclosure of the document in question. taking clue from section 162 of the evidence act, the court held that the preliminary question whether the document relates to any affairs of state, has to be decided by the court. eventually, the court reiterated the need to strike a balance, that was emphasised in s.p.gupta. 33. from a survey of the journey that section 123 undertook in the past 50 years, it is clear that i must first examine whether the document sought for by the petitioner relates to any affairs of the state. as seen from the affidavit in support of the above miscellaneous petition, the document sought for by the petitioner relates to the security coverage provided to the petitioner from 2004 onwards. in technical terms, what is sought for by the petitioner are the proceedings of the security review committee meetings. 34. in the counter affidavit filed by the additional secretary to government, it is stated that the security review committee comprises of the following officers:- (i) the secretary to government, home department. (ii) the director general of police. (iii) the commissioner of police, chennai. (iv) additional director general of police/inspector general of police (intelligence). (v) the deputy director/joint director, subsidiary intelligence bureau. (vi) the deputy commissioner of police, security, chennai. 35. in paragraph 11 of the counter affidavit filed to the main writ petition, the respondents have stated that in a meeting of the security review committee held on 20.5.2011, the security provided to various individuals was reviewed and that it was decided to withdraw the "y" scale of security provided to the petitioner. it is further stated, in the same paragraph, that the case of the petitioner was not an isolated one. in the same meeting, the protection given to 34 others was also decided to be withdrawn. 36. therefore, it is clear that what is actually required by the petitioner is the production of the minutes of the meeting dated 20.5.2011 of the security review committee. there is no reason for me to doubt the stand taken by the respondents that the case of the petitioner was considered along with that of other people, including 34 persons, in the same meeting. therefore, the document, whose production is now sought by the petitioner, contains the minutes of the meeting of the security review committee relating to the security of scores of people apart from the petitioner. 37. interestingly, in the affidavit in support of m.p.no.2 of 2012, the petitioner submitted in paragraph 4 that he is not interested to know the details with regard to other persons to whom security cover was given or withdrawn and that he is interested only in knowing the reasons for the withdrawal of security cover to him alone. but after having said so in the affidavit in support of the petition m.p.no.2 of 2012, the petitioner came up with a reply to the counter affidavit filed by the respondents. he also filed a reply to the counter in the main writ petition. in paragraph 15 of the reply to the counter in the main writ petition, which is also extracted in paragraph 9 of the reply to the counter in the above miscellaneous petition, the petitioner has raised the following questions:- (i) when the agenda for the security review committee meeting was circulated to the members of the committee ? (ii) at which place the committee meeting was held on 20.5.2011 ? (iii) how many members attended the meeting ? (iv) when the meeting commenced and when it got concluded ? (v) what is the duration of the meeting ? (vi) what are the names of 34 other persons, for whom the security cover was withdrawn ? (vii) how many of them are non-aiadmk party ? (viii) what is the political colour of persons to whom the security was continued ? (ix) what is the political colour of persons to whom the security is provided afresh ? 38. from the above list of questions raised by the petitioner, it is clear that the petitioner seeks the production of the minutes of the meeting of the security review committee for the purpose of conducting a roving enquiry. it is needless to point out that such an exercise cannot be allowed. 39. at any rate, the safety and security of the citizens of the country, cannot be said to fall outside the scope of the expression "affairs of the state". internal security is certainly a matter with which the state is definitely concerned. the expression "matters of state" appearing in the second clause of section 162, has been held by the supreme court in sodhi sukh dev singh case, to be identical to the expression "affairs of state" appearing in section 123. therefore, the safety and security of all persons, including that of the petitioner, whose cases were taken up for review on 20.5.2011 by the security review committee, would fall within the meaning of the expression "affairs of state". hence the first question to be addressed by this court, as per paragraph 70 of the decision of the supreme court in peoples union of civil liberties, has to be answered in favour of the respondents. in other words, the document in respect of which privilege is claimed, is an unpublished official record relating to the affairs of state. 40. once an answer is found to the first question, it is not very difficult to find an answer to the next question as to whether the disclosure of the contents would be against public interest. as seen from the counter affidavit filed by the respondents, the security review committee had chosen to withdraw the security cover provided to the petitioner as well as to 34 others. if any of those persons is actually facing a threat to his life or property, the disclosure of the fact that his security cover had been withdrawn, would only expose such a person to a greater risk. in other words, the exposure of any one of the persons covered by the minutes of the meeting of the security review committee to any kind of danger, would certainly be against public interest. every crime is against public interest. therefore, the second question should also be answered in favour of the respondents. 41. the fact that the affidavit had been sworn to only by the additional secretary to government, who is not the head of the department, is hardly of any significance. the constitution bench has already held in raj narain that the court can always call upon the head of the department either to file an affidavit for the first time or to call upon the head of the department to file an additional or further affidavit. therefore, the fact that the additional secretary alone has filed the affidavit, will not go to the rescue of the petitioner. 42. in view of the above, i see no justification to deviate from the view taken by k.chandru j., in his decision dated 5.10.2006 in w.p.no.14926 of 2006. hence, the miscellaneous petition is dismissed.

Judgment:

(This miscellaneous petition is filed under Article 226 of the Constitution of India, praying for a direction to the respondents herein to produce the records relating to the security coverage provided to the petitioner from its inception till date.)

Pending disposal of the main writ petition seeking a Mandamus to enhance the security cover given to the petitioner and to his residential house, the petitioner has come up with the above miscellaneous petition, seeking a direction to the respondents to produce the records relating to the security coverage provided to the petitioner from its inception till date.

2. I have heard Mr.N.Jothi, petitioner appearing in person and Mr.A. Navaneethakrishnan, learned Advocate General, assisted by Mr.M.C.Swamy, learned Special Government Pleader appearing for the respondents.

3. The petitioner is an Advocate. He was also a Member of Parliament during the period from 2002-2008.

4. According to the petitioner, he was informed by a high ranking Police Official in the year 2003 that there was a threat perception to his life and that therefore, the State would provide Personal Security Officers. Accordingly, he was provided Security Officers from the year 2003-2006. According to the petitioner, the security cover was withdrawn in the year 2006.

5. Challenging the withdrawal of the security cover, the petitioner filed a writ petition in W.P.No.14926 of 2006. The said writ petition was dismissed by an order dated 5.10.2006. The said order attained finality.

6. It is the case of the petitioner that he was a member of one political party from which he came out in the year 2008. It appears that in the year 2009, he was again provided security cover. The security cover was withdrawn in a meeting of the Security Review Committee held on 20.5.2011. Therefore the petitioner came up with the above writ petition seeking a Mandamus to direct the respondents to enhance the security cover from 'Y' category to 'Y+' category. The writ petition was moved during the summer recess of the year 2011 on 26.5.2011. While ordering notice, this Court passed an interim order, directing the respondents to continue to provide security under 'Y' category.

7. Thereafter, the writ petition was admitted in October 2011 and the respondents filed a counter affidavit to the main writ petition. The petitioner then filed a reply to the counter.

8. Subsequently, when the respondents came up with an application in M.P.No.1 of 2012 to vacate the interim order, the petitioner filed the above miscellaneous petition, seeking a direction to the respondents to furnish the records relating to the security cover provided to the petitioner from the beginning viz., 2004 till date. In the above application, a counter affidavit was filed by the Additional Secretary to Government, Home Department, seeking privilege. Therefore, the petitioner filed a reply, to the counter affidavit filed by the respondents in the above miscellaneous petition.

9. Thereafter, the petitioner as well as the learned Advocate General argued the above miscellaneous petition, since the arguments in the main writ petition would depend upon the fate of the above miscellaneous petition.

10. In the light of the facts detailed above, the question that arises for consideration is as to whether the claim of privilege made by the respondents should be sustained or not.

11. In the counter affidavit filed by one Mr.P.Seetharaman, Additional Secretary to Government, Home Department, privilege is claimed in terms of Sections 123 and 124 of the Indian Evidence Act, 1872. The petitioner made a similar prayer for production of records even in his previous writ petition W.P.No.14926 of 2006, by filing a miscellaneous petition in W.P.M.P.No.17754 of 2006. But by a final order dated 5.10.2006, K.Chandru, J., dismissed not only the miscellaneous petition, but also the main writ petition. Therefore, the respondents not only claim privilege in terms of Sections 123 and 124, but also claim that the issue is already covered by the earlier order, rejecting a similar prayer.

12. However, the petitioner contends, in his reply affidavit, that the claim for privilege made by the respondents, cannot be sustained for the following reasons:-

(i) Section 123 can be raised only when the records relate to the affairs of the State and only when the Head of the Department had taken a decision not to produce the records on the ground that their production will be against the public interest. But in this case, the Head of the Department has not filed the affidavit. It is only the Additional Secretary to the Government, who has filed the affidavit.

(ii) Section 124 has no relevance to the case on hand, since it relates to communications in official capacity. The order passed in the previous writ petition sustaining the claim of privilege raised by the respondents, cannot prevent the petitioner from opposing the claim of privilege in the present writ petition, since there have been change of circumstances. After the dismissal of the first writ petition (and after the petitioner joined the then ruling party), the State provided security to the petitioner from 2009. Again after the change of Government in May 2011, the security cover was withdrawn. Therefore, due to these change of circumstances and due to the frequent shift in the position taken by the respondents, Mr.N.Jothi contends that the order in the first writ petition would not prevent me from having a fresh look at the issue. His question in short is as to how the State perceives a threat to his life, whenever he is in the ruling party and how such threat perception disappears when he goes out of the ruling party.

13. I have carefully considered the pleadings and the contentions.

14. It is true that the petitioner made a similar prayer in W.P.M.P.No.17754 of 2006 in his previous writ petition W.P.No.14926 of 2006. The respondents claimed privilege. In paragraph 18 of the final order passed in the writ petition on 5.10.2006, K.Chandru, J., framed 4 issues for consideration. The first issue was as to whether the petitioner is entitled to the documents sought for in the miscellaneous petition. The second issue raised was as to whether the claim of privilege raised by the State can be sustained or not.

15. The discussion with regard to both these issues are found in the decision from paragraph 19.1 to 19.6. In paragraph 19.6, the learned Judge sustained the claim of privilege made by the State.

16. It must be pointed out that even in that case, it was only the Deputy Secretary who filed the affidavit claiming privilege. But after considering the decisions of the Supreme Court in (i) Peoples Union of Civil Liberties vs. Union of India {2004 (2) SCC 476} (ii) R.K.Jain vs. Union of India {1993 (4) SCC 119 and (iii) S.P.Gupta vs. Union of India {1981 Supp. SCC 87}, the learned Judge came to the conclusion that the claim of privilege has to be sustained. Therefore, prima facie, it appears that the petitioner is bound by the said order and he cannot re-litigate the same issue.

17. But I cannot also lose sight of the fact that after the dismissal of the first writ petition, the petitioner claims to have joined the then ruling party. Thereafter, he was provided security cover in the year 2009, which he continued to enjoy till the said party lost power in 2011. Therefore, it would certainly be baffling to the petitioner as to how the State perceives a threat to his life whenever he is in the ruling party, just as it may be baffling to some, as to why he switched loyalty from one political party to another. Hence, in view of the subsequent developments pleaded by the petitioner, I would choose to examine the issue afresh, despite the fact that the issue is already considered by K.Chandru, J., in the first writ petition. Since the issue relates to the life of an individual, it would be better to examine the issue once again rather than shutting the door for the petitioner.

18. In order to find an answer to the question raised here, it is necessary to take note of Sections 123 and 124 of the Indian Evidence Act, 1872 and the law laid down in the various decisions of the Supreme Court. Section 123 of the Evidence Act, mandates that no one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the Officer at the Head of the Department concerned, who shall give or withhold such permission as he thinks fit. In order to satisfy the requirements of Section 123, two things have to be satisfied viz., (i) the record concerned must be an unpublished official record and (ii) it must relate to any affairs of State. The person competent to give permission to give evidence from such record is also indicated to be the Officer at the Head of the Department. Therefore, to test the applicability of Section 123, two expressions are of significance viz., (i) affairs of State and (ii) Officer at the Head of the Department.

19. Under Section 124, no Public Officer can be compelled to disclose the communications made to him in official confidence when he considers that public interest would suffer by the disclosure. Therefore, to claim privilege under Section 124, it is enough if the Public Officer satisfies the Court that the record in his possession is in official confidence and that he considers that public interest would suffer by the disclosure. In other words, to invoke the privilege under Section 124, it is enough if the Officer concerned is a Public Officer and not the Head of the Department. Similarly, it is enough if he considers that public interest would suffer by the disclosure, even if it does not concern the affairs of the State.

20. The scope of the expression "affairs of the State" appearing in Section 123 was examined by a Constitution Bench of the Supreme Court in State of Punjab vs. Sodhi Sukh Dev Singh {AIR 1961 SC 493}. Interestingly, the said case arose out of a civil suit praying for a declaration that the removal from service of a District and Sessions Judge, was illegal, null and void. In the suit, an application was taken out under Order XIV, Rule 4 of the Code of Civil Procedure for production of certain documents. The Chief Secretary claimed privilege under Section 123. The claim for privilege was upheld by the trial Court. But in a revision under Section 115 of the Code of Civil Procedure and Article 227 of the Constitution, a Division Bench of the Punjab High Court reversed the order of the trial Court and directed production of the documents. The State of Punjab obtained leave and the matter was referred to a Constitution Bench. Pointing out that the expression "affairs of the State" in the later half of the 19th century may have had a comparatively narrow content, P.B. Gajendragadkar, J., indicated, in paragraph 15, that the documents in respect of which privilege is claimed may fall under different categories. One set of documents may relate to matters of political or administrative character such as National Defence, public peace, security and good neighbourly relations. Another set of documents may not be so sensitive in terms of their contents, but they may, if disclosed, materially affect the freedom and candour of expression of opinion in the determination and execution of public policies. Notes and Minutes made by the respective Officers on the relevant file, opinion of experts or reports made and the gist of official decisions reached in the course of determination of questions of policy would fall under this category. These categories of documents, it was pointed out by the court, if disclosed, would impair the proper functioning of the public service. It was also pointed out in paragraph 17 of the said decision that when the Legislature has advisedly refrained from defining the expression "affairs of the State" it would be in-expedient for judicial decisions to put the expression in a straight jacket definition.

21. After referring to Section 162, the court pointed out in paragraph 21 of the decision that the expression "matters of State" referred to in second clause of Section 162 is identical with the expression "affairs of State" in Section 123. On the question as to how such privilege should be claimed, the Court held in paragraph 23 that privilege should be claimed generally by the Minister in-charge, who is the Political Head of the Department and if not, by the Secretary of the Department. The claim should always be made in the form of an affidavit. Eventually, in paragraphs 25 and 26, the Court summarised its conclusions as follows:-

"25. Thus our conclusion is that reading Sections 123 and 162 together the Court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in question. That is a matter for the authority concerned to decide; but the Court is competent, and indeed is bound, to hold a preliminary enquiry and determine the validity of the objections to its production, and that necessarily involves an enquiry into the question as to whether the evidence relates to an affair of State under Section 123 or not.

26. In this enquiry the Court has to determine the character or class of the document. If it comes to the conclusion that the document does not relate to affairs of State then it should reject the claim for privilege and direct its production. If it comes to the conclusion that the document relates to the affairs of State it should leave it to the head of the department to decide whether he should permit its production or not. We are not impressed by Mr.Seervai's argument that the Act could not have intended that the head of the department would permit the production of a document which belongs to the noxious class. In our opinion, it is quite conceivable that even in regard to a document falling within the class of documents relating to affairs of State the head of the department may legitimately take the view that its disclosure would not cause injury to public interest. Take for instance the case of a document which came into existence quite some time before its production is called for in litigation; it is not unlikely that the head of the department may feel that though the character of the document may theoretically justify his refusing to permit its production, at the time when its production is claimed no public injury is likely to be caused. It is also possible that the head of the department may feel that the injury to public interest which the disclosure of the document may cause is minor or insignificant, indirect or remote; and having regard to the wider extent of the direct injury to the cause of justice which may result from its non-production he may decide to permit its production. In exercising his discretion under Section 123 in many cases the head of the department may have to weigh the pros and cons of the problem and objectively determine the nature and extent of the injury to public interest as against the injury to the administration of justice. That is why we think it is not unreasonable to hold that Section 123 gives discretion to the head of the department to permit the production of a document even though its production may theoretically lead to some kind of injury to public interest. While construing Sections 123 and 162, it would be irrelevant to consider why the enquiry as to injury to public interest should not be within the jurisdiction of the Court, for that clearly is a matter of policy on which the Court does not and should not generally express any opinion."

22. Interestingly, J.L.Kapur and K.Subba Rao, J.J., concurred with P.B.Gajendragadkar, J., in so far as the fundamental principles of law are concerned. But J.L.Kapur, J., struck a note of dissent on the question on the extent to which the Court can go in examining the documents. K.Subba Rao, J., disagreed with both of them in so far as one of the documents on which claim of privilege was made. Eventually by a majority, the appeal of the State was allowed and the claim of privilege was sustained.

23. In Amar Chand Butail vs. Union of India {AIR 1964 SC 1658}, another Constitution Bench of the Supreme Court, reiterated the principles laid down in Sodhi Sukh Dev Singh. The decision in Sodhi Sukh Dev Singh, was read in Amar Chand Butail to lay down two principles of law. They are:-

(i) Though the Court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in question, the Court is competent to hold a preliminary enquiry and determine the validity of the objection to its production. It necessarily involves an enquiry into the question as to whether the documents relate to affairs of State under Section 123. Since Section 123 confers wide powers on the Heads of the Department, they should act with scrupulous care in exercising their right. They should never claim privilege mainly on the ground that the disclosure of the document may defeat the defence raised by the State.

(ii) The claim of privilege has to be made in a specific manner. It should be made either by the Minister in-charge, who is the Political Head of the Department or by the person, who is the Head of the Department. The affidavit should disclose that the deponent is satisfied with respect to each document that its disclosure would lead to public injury.

24. In The Sub Divisional Officer vs. Raja Srinivasa Prasad Singh {AIR 1966 SC 1164}, yet another Constitution Bench reiterated the principles laid down in Sodhi Sukh Dev Singh and Amar Chand Butail and held that the Heads of Departments should file necessary affidavits for claiming privilege.

25. Next came the famous case of State of U.P. vs. Raj Narain {1975 (4) SCC 428}. Raj Narain filed an election petition on the file of the High Court of Allahabad, challenging the election of Smt.Indira Gandhi. In the election petition, Raj Narain took out an application for summoning certain witnesses along with certain documents. When summons were issued to the witnesses, an Under Secretary appeared in Court, claiming privilege in respect of 3 documents, one of which was known as the 'Blue Book', containing the rules and instructions for the protection of the Prime Minister when on tour or in travel. The Allahabad High Court held that privilege was not claimed in a proper manner, in the sense that there was no affidavit and that the witness came along with the Blue Book, without even putting it in a sealed cover. An affidavit filed at a later point of time by the Chief Secretary was not accepted by the High Court. The High Court also held that it is not an unpublished official record, since the Blue Book was quoted by a Member of Parliament. When the State of UP took the matter by way of appeal to the Supreme Court, the Supreme Court laid down the following propositions:-

(i) Public interest which demands that evidence be withheld, is to be weighed against public interest in the administration of justice which requires Courts to have the fullest possible access to all relevant materials. When public interest of the former nature outweighs the public interest of the latter type, then the evidence cannot be admitted.

(ii) An objection to the production of document can be raised by an affidavit affirmed by the Head of the Department. The Court may also require a Minister to affirm an affidavit. That will arise in the course of an enquiry by the Court as to whether the document should be withheld from disclosure.

(iii) If the Court is satisfied with the affidavit evidence that the document should be protected in public interest from production, the matter ends there. If the Court would yet like to satisfy itself, the Court may see the document. This will be by the inspection of the document by the Court.

(iv) Where no affidavit is filed, the Court can direct an affidavit to be filed. If an affidavit is defective, an opportunity can be given to file a better affidavit. Even a further affidavit can be directed to be filed in that behalf.

26. In Raj Narain, K.K.Mathew J., delivered a separate but concurring judgment. But even in his opinion, he pointed out that if the averments in the affidavit are not full or complete, the Court will be at liberty to call for further affidavits. If on the basis of the averments in the affidavits, the Court is satisfied that the document is entitled to protection, no further question would arise. In such a case, the question of inspection of that document by Court, will not arise. However, if the Court is satisfied that the document does not belong to that class and that the available material is not sufficient to conclude that the disclosure will injure public interest, it will be open to the Court to inspect the document and examine whether it relates to affairs of State and whether its disclosure will injure public interest. After laying down the above propositions, K.K.Mathew, J., held in paragraph 87 that if the Court holds, after inspection, that any part of the document does not relate to the affairs of State and that its disclosure would not injure public interest, the Court will be free to disclose that part and uphold the objection as regards the rest, provided it will not give a misleading impression.

27. After the case of Raj Narain, came the decision in S.P.Gupta vs. Union of India {1981 Supp. SCC 87}. The question that arose in that case was whether the correspondence exchanged between the Chief Justice of the High Court and the Chief Justice of India, on consultation, form part of the advise protected under Article 74(2) of the Constitution. Tracing the entire evolution of law, P.N.Bhagwati J., pointed out that the meaning and content of Section 123, cannot remain static and that it must be interpreted, keeping in view our new democratic society wedded to the basic values enshrined in the Constitution. In paragraph 67 of the judgment, P.N.Bhagwati J., pointed out that disclosure of information in regard to the functioning of the Government must be the rule and secrecy an exception, justified only where the strictest requirement of the public interest so demands. He further pointed out that "the approach of the Court must be to attenuate the area of secrecy as much as possible consistently with the requirement of public interest, bearing in mind all the time that disclosure also serves an important aspect of public interest". He further pointed out that the Court is not bound by the assertions made by a Minister or the Head of the Department and that a Court retains the power to balance the injury to the State or the public service against the risk of injustice, before reaching the decision.

28. Five learned Judges on the bench (Gupta J., Tulzapurkar J., D.A.Desai J., Pathak J., and E.S.Venkataramiah J.), concurred with the views expressed by P.N.Bhagwati J, but Murtaza Fazal Ali J., stuck a note of dissent. While expressing his concurrence, D.A.Desai J., noted that Section 123 is a century old provision, enacted to some extent keeping in view the needs of Empire Builders and that it should change in the context of Republican Government and the open society that we have set up. Similarly, R.S.Pathak J., pointed out that the law in this regard had to be taken forward from the position enunciated in Sodhi Sukh Dev Singh. Venkataramiah, J., also pointed out that the tendency in all democratic countries in recent times, is to liberalise the restrictions and that the emphasis now is more on the right of a citizen to know than on his need to know.

29. The significance of the decision in Raj Narain is that it sought to strike a balance between public interest favouring secrecy vis-a-vis public interest in the administration of justice favouring fullest possible access for the courts, to all documents. The significance of S.P.Gupta is two-fold namely (i) that it recognised that disclosure, just as secrecy, also serves an important aspect of public interest and (ii) that to some extent, it shifted the focus from the need to know, to the right to know. The iron curtains built by section 123 around official documents, was melted by S.P.Gupta, to some extent, so that these curtains could be raised at the drop of the judicial hammer.

30. After S.P.Gupta came the decision in State of Bihar vs. Kripalu Shankar {1987 (3) SCC 34}., There, the Supreme Court, while holding that notings made by the Officers in the files cannot be made the basis of contempt action, also held that the internal notings are privileged documents. In paragraph 13 of the decision, the Court held that the internal notes file of the Government, maintained according to the rules of business, is a privileged document and that if the Government claims privilege or quasi privilege regarding notes file, the Court will not be justified in rejecting the claim outright. Though the Court also held that it had the right to look into any file, the Court held that the contents of the notes file, cannot be communicated.

31. In R.K.Jain vs. Union of India {AIR 1993 SC 1769}, the Supreme Court reiterated the principles of law evolved in Raj Narain and S.P.Gupta. But in Peoples Union of Civil Liberties vs. Union of India {2004 (2) SCC 476}, the Court examined the question of privilege enunciated in Section 123 of the Evidence Act, in the context of the right to information arising out of the fundamental right guaranteed under Article 19(1)(a) of the Constitution and the reasonable restrictions that the State is entitled to impose upon such fundamental right, under Article 19(2). The Court clarified in paragraph 61 that the decisions of the Constitution Bench both in Raj Narain and in S.P.Gupta, were silent on the relationship between the restrictions which should be placed on the right to know and the restrictions existing under Article 19(1)(a) of the Constitution. After taking up for consideration, the criteria for determining the question of privilege from paragraph 68 onwards, the Supreme Court held that the Court is obliged to pose two questions for determining the issue when a claim of privilege is made. The questions are:-

(i) Whether the document in respect of which privilege is claimed, is really a document relating to any affairs of State and

(ii) Whether a disclosure of the contents of the document would be against public interest ?

32. In paragraph 71, the Court pointed out that when any claim of privilege is made by the State in respect of any document, the question whether the document belongs to the privileged class, has first to be decided by the Court. But the Court cannot hold an enquiry into the possible injury to public interest, which may result from the disclosure of the document in question. Taking clue from Section 162 of the Evidence Act, the Court held that the preliminary question whether the document relates to any affairs of State, has to be decided by the Court. Eventually, the Court reiterated the need to strike a balance, that was emphasised in S.P.Gupta.

33. From a survey of the journey that Section 123 undertook in the past 50 years, it is clear that I must first examine whether the document sought for by the petitioner relates to any affairs of the State. As seen from the affidavit in support of the above miscellaneous petition, the document sought for by the petitioner relates to the security coverage provided to the petitioner from 2004 onwards. In technical terms, what is sought for by the petitioner are the proceedings of the Security Review Committee meetings.

34. In the counter affidavit filed by the Additional Secretary to Government, it is stated that the Security Review Committee comprises of the following Officers:-

(i) The Secretary to Government, Home Department.

(ii) The Director General of Police.

(iii) The Commissioner of Police, Chennai.

(iv) Additional Director General of Police/Inspector General of Police (Intelligence).

(v) The Deputy Director/Joint Director, Subsidiary Intelligence Bureau.

(vi) The Deputy Commissioner of Police, Security, Chennai.

35. In paragraph 11 of the counter affidavit filed to the main writ petition, the respondents have stated that in a meeting of the Security Review Committee held on 20.5.2011, the security provided to various individuals was reviewed and that it was decided to withdraw the "Y" scale of security provided to the petitioner. It is further stated, in the same paragraph, that the case of the petitioner was not an isolated one. In the same meeting, the protection given to 34 others was also decided to be withdrawn.

36. Therefore, it is clear that what is actually required by the petitioner is the production of the Minutes of the meeting dated 20.5.2011 of the Security Review Committee. There is no reason for me to doubt the stand taken by the respondents that the case of the petitioner was considered along with that of other people, including 34 persons, in the same meeting. Therefore, the document, whose production is now sought by the petitioner, contains the Minutes of the meeting of the Security Review Committee relating to the security of scores of people apart from the petitioner.

37. Interestingly, in the affidavit in support of M.P.No.2 of 2012, the petitioner submitted in paragraph 4 that he is not interested to know the details with regard to other persons to whom security cover was given or withdrawn and that he is interested only in knowing the reasons for the withdrawal of security cover to him alone. But after having said so in the affidavit in support of the petition M.P.No.2 of 2012, the petitioner came up with a reply to the counter affidavit filed by the respondents. He also filed a reply to the counter in the main writ petition. In paragraph 15 of the reply to the counter in the main writ petition, which is also extracted in paragraph 9 of the reply to the counter in the above miscellaneous petition, the petitioner has raised the following questions:-

(i) When the Agenda for the Security Review Committee Meeting was circulated to the Members of the Committee ?

(ii) At which place the Committee meeting was held on 20.5.2011 ?

(iii) How many members attended the meeting ?

(iv) When the meeting commenced and when it got concluded ?

(v) What is the duration of the meeting ?

(vi) What are the names of 34 other persons, for whom the security cover was withdrawn ?

(vii) How many of them are non-AIADMK Party ?

(viii) What is the political colour of persons to whom the security was continued ?

(ix) What is the political colour of persons to whom the security is provided afresh ?

38. From the above list of questions raised by the petitioner, it is clear that the petitioner seeks the production of the Minutes of the meeting of the Security Review Committee for the purpose of conducting a roving enquiry. It is needless to point out that such an exercise cannot be allowed.

39. At any rate, the safety and security of the citizens of the country, cannot be said to fall outside the scope of the expression "affairs of the State". Internal security is certainly a matter with which the State is definitely concerned. The expression "matters of State" appearing in the second clause of Section 162, has been held by the Supreme Court in Sodhi Sukh Dev Singh case, to be identical to the expression "affairs of State" appearing in Section 123. Therefore, the safety and security of all persons, including that of the petitioner, whose cases were taken up for review on 20.5.2011 by the Security Review Committee, would fall within the meaning of the expression "affairs of State". Hence the first question to be addressed by this Court, as per paragraph 70 of the decision of the Supreme Court in Peoples Union of Civil Liberties, has to be answered in favour of the respondents. In other words, the document in respect of which privilege is claimed, is an unpublished official record relating to the affairs of State.

40. Once an answer is found to the first question, it is not very difficult to find an answer to the next question as to whether the disclosure of the contents would be against public interest. As seen from the counter affidavit filed by the respondents, the Security Review Committee had chosen to withdraw the security cover provided to the petitioner as well as to 34 others. If any of those persons is actually facing a threat to his life or property, the disclosure of the fact that his security cover had been withdrawn, would only expose such a person to a greater risk. In other words, the exposure of any one of the persons covered by the Minutes of the meeting of the Security Review Committee to any kind of danger, would certainly be against public interest. Every crime is against public interest. Therefore, the second question should also be answered in favour of the respondents.

41. The fact that the affidavit had been sworn to only by the Additional Secretary to Government, who is not the Head of the Department, is hardly of any significance. The Constitution Bench has already held in Raj Narain that the Court can always call upon the Head of the Department either to file an affidavit for the first time or to call upon the Head of the Department to file an additional or further affidavit. Therefore, the fact that the Additional Secretary alone has filed the affidavit, will not go to the rescue of the petitioner.

42. In view of the above, I see no justification to deviate from the view taken by K.Chandru J., in his decision dated 5.10.2006 in W.P.No.14926 of 2006. Hence, the miscellaneous petition is dismissed.