ORDER
Arun Madan, J.
1. This writ petition has been filed in this court under Article 226 of the Constitution with a prayer for enforcement of petitioner’s fundamental rights under Articles 14 read with 51A, 163 and Schedule 3 of the Constitution of India. The petitioner is a public spirited citizen of India and an Advocate by profession.
2. The facts giving rise to the filing of this petition briefly stated are that the petitioner has placed a reliance upon a newspaper report dated 20th April, 1994 published in Jaipur Edition of Navbharat Times vide Annex. 1 to this writ petition which is in vernacular. The caption of the said news report reads as under :
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As per the aforesaid newspaper report the State Government of Rajasthan had already completed the acquisition proceedings of 200 acres of land known as Rambagh Polo-ground on behalf of Jaipur Development Authority (For short ‘JDA’) for the purpose of constructing residential houses in the suit locality. The aforesaid acquisition proceedings were completed after the decision of the. Apex Court of the country.
3. In lieu of acquisition of the aforesaid 200 acres of land the State Government fixed Rs. 4 crores as compensation payable to Ex-ruler of former Jaipur State Brigadier Bhawani Singh. It is contended in the petition that Shri Bhawani Singh had claimed 350 crores as compensation in appeal which is pending before Hon’ble Supreme Court. It is further stated in the petition that the function was organised by Old Students of Mayo College at Rambagh Polo-ground on 19th April, 1994 where as per news report Shri Bhairon Singh Shekhawat, Hon’ble Cheif Minister was the Chief-Guest. After the prize distribution ceremony was over, Hon’ble Chief Minister was approached by some workers of INTAC along with Mrs. Gayatri Devi Ex. Rajamata of Jaipur who requested Hon’ble Chief Minister to sign the representation containing the signatures of Rajmata, her
son Shri Jagal Singh Ex. Maharaj Kumar Jaisingh, Rashmikant Durlabhji Ex. Ruler of Jodhpur, Maharaj Gajjsingh besides some Army Officers, Industrialists and others. The aforesaid representation containing the signatures of about 400 persons including the Hon’ble Chief Minister was to be presented to the Government of Rajasthan as per Shri Jaisingh, the President of INTAC, Jaipur Chapter. It is further contended in the petition that the aforesaid signatures to the representation have sought cancellation of acquisition proceedings which are already completed so far as the State Government is concerned, with a view to retain the said 200 acres ofland worth above Rs. 500 crores for Polo-ground and Golf Course etc.
4. During the course of hearing Shri Mohan Singh Raghaw, learned counsel for the petitioner, contended that the Hon’ble Chief Minister in the capacity of being the head of council of Ministers, is under a constitutional obligation to discharge his duties enshrined in the Constitution and is bound by the sacred oath of office as provided in Schedule III of the Constitution of India. It was further contended by the learned counsel for the petitioner that the Hon’ble Chief Minister can, in no circumsiances, be allowed to assume the role of the complainant and the Judge by signing a representation for being presented to him. In view of the aforesaid facts and circumstances relating to the acquisition of the aforesaid land which is prime land in Jaipur City, the learned counsel contended that the impugned action of the respondents is highly arbitrary and violative of Article 14 of the Constitution of India. It was further contended by the learned counsel for the petitioner that the Hon’ble Chief Minister (respondent No. 2 in this petition) has violated the sacred principle of collective responsibility by affixing his signatures on the aforesaid representation. The said respondent by signing the aforesaid representation has created reasonable apprehension in the mind of the people regarding future status of the aforesaid 200 acres of acquired land. It was further argued that the impugned action of the respondent is, further likely to result in heavy financial losses to the public ex-chequer
notwithstanding the fact that the said respondent No. 2 being the head of council of Ministers is duty bound to protect and safeguard the interest of the State and more so when this pertains to public finances. It was further contended by the learned counsel that the said respondent has violated the duty cast upon him under Article 51A of the Constitution of India which enjoins on each citizen of India a duty to respect and abide by the Constitution of India and that the said respondent being also a citizen of India has violated the said fundamental duty. In view of the aforesaid facts and circumstances and the contentions advanced by the learned counsel for the petitioner in the prayer clause of the writ petition it has been prayed that this court be pleased to allow this writ petition and issue directions to the State Government prohibiting it from taking any steps for the cancellation of acquisition proceedings pertaining to 200 acres of the land in Rambagh Polo-ground, Jaipur by acts of omission or commission prayed for such appropriate order and directions which this court may deem fit and proper in the circumstances of this case.
5. I have heard arguments advanced by the learned counsel for the petitioner and also perused the record.
6. It will be pertainent to mention the relevant provisions of Articles 163 and 164 of the Constitution of India. Article 163 provides that there shall be a council of ministers with the Chief Minister as its head to aid and advise the Governor in exercise of its functions, except in so far as he is, by or under this Constitution, required to exercise his functions or any of them in his disgetion.
7. Sub-clause (2) of Article 163 of the Constitution provides that if any question arises in respect of any matter which is or not a matter as regarding which the Governor is by or under the Constitution, required to act in his discretion, the decision of the Governor as per his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion. In other words the Constitution of India mandates sole prerogative or discretion of the Governor in the subject matter of the State and that the decision of the Governor shall not be subject to any question before any competent authority, Sub-clause (3) of Article 163 of the Constitution mandates that the question whether any, and if so what, advice was tendered by the Ministers through the Governor shall not be enquired into in any court. In other words in the matter of Cabinet decisions of the State any communication made between Hon’ble Chief Minister and his council of Ministers or in the matter of any advice tendered by the Ministers to the Governor in the official capacity of the Cabinet, shall not be subject to question in any court of law. In certain matters the Governor of the State has special responsibilities under Articles 371(2), 371A(1)(b), 371(c) and 371(f) which the Governor has to discharge according to directions issued by the President of India, and therefore, without the need to consult his council of Ministers. But there are certain functions which cannot possibly be exercised by the Governor on advice of council of Ministers, i.e., reporting to the President under Article 356(1) of the Constitution, reserving consideration of the President under Article 200(1) of the Constitution. Our Constitution has made a system of functioning of the council of Ministers with Chief Minister as its head with powers to Preside Over the council of the Ministers. This however, does not mean that the council of Ministers cannot function independently if the Chief Minister is unable to attend a particular meeting of the council. Under Sub-clause (3) of Article 163 of the Constitution there is specific Bar to the inquiry by a court regarding any question regarding which any advice was tendered by the council of Ministers to the Governor of the State and it shall be deemed to be a privileged communication and shall not be subject to question before any court of law. A legal consequence of this provision is that resolutions or other deliberations at the meetings of the council of Ministers or advice finally tendered in pursuance of said deliberations to the Governor are privileged communications which are exempted from production in a court of law, irrespective of any
provisions of the Evidence Act. This proposition has already been affirmed by the Apex Court of the country in the matter of Slate of Punjab v. Sodi Sukhdev, AIR 1961 SC 493 (pages 512 & 532); wherein the Apex Court held on the question of claim of privilege with reference to Sections 123 and 162 of the Indian Evidence Act (1872) as under :
“This is matter for the authority, concerned to decide — “in this enquiry the court has to determine the character or class of the documents. If it comes to the conclusion that the document does not relate to the affairs of the Stale, then it should reject the claim of privilege and direct its production. If it comes to the conclusion that the document relates to the affairs of the State it should leave it to the head of the department to decide whether he should permil its production or not”. It was further held “But in its discretion, the court will exercise its power only in’ exceptional circumstances when public interest demands, i.e., when the public interest served by the disclosure clearly outweighs that served by the non-disclosure”. One of such instance is whether the public interest served by the administration of justice in a particular case overrides all other aspects of public interesf”.
In my view this is not one of those cases where public interest should be served by directing the production of minutes i.e., the discussions which took place in the cabinet between the Chief Minister and his council of Ministers concerning acquisition of land of the Polo-ground at Jaipur.
8. Notwithstanting the Bar contained, in Article 163(3) of the Constitution, it shall be however, the sole discretion of the Governor concerned to produce the proceedings of the council of Ministers without any objection and without any claim of privilege before any court of law and if this is done by the concerned Governor, there is nothing in Article 163(3) of the Constitution to debar the court from looking into the same. This proposition of law was affirmed by the Apex Court in the matter of Chaudhary v. Government of Bihar, AIR 1980 SC 383 (para 3) overruling the judgment of Patna High Court in AIR
1976 Patna 36 in the matter of Ram Nagina v. Sohni wherein it was held that it was not necessary for the said court to express any opinion on the question whether Article 163(3) of the Constitution bars the court from looking into the proceedings of the Cabinet. It was further observed as under :
“It is one thing to say “the question whether any, and if so, what advice was tendered by the Ministers to the Governor, shall not be enquired into in any Court”, and all together a different thing to say that the proceedings of the council of Ministers cannot be looked into even if produced without objection and without any claim of privilege”.
9. Keeping in view the aforesaid provisions enshrined in Article 163 of the Constitution of India, the question which has been raised in the present writ petition by learned counsel for the petitioner is not tenable in view of the fact that there is statutory Bar under Sub-clause (3) of Article 163 of the Constitution and keeping that aspect primarily, in view, I am of the considered opinion that any communication which was made between the Chief Minister and the Governor of the State concerning the acquisition proceedings of 200
acres of land relating to the Polo-ground, Jaipur is a privileged communication and is
not open to question before this court. Moreover the petitioner has no locus standi in this matter as he has failed to explain as to how his legal righs have been violated. In absence of legal rights there can be no question of any legal injury since the matter concerning the acquisition of land of Polo-ground at Jaipur is inter-se between the State and Ex-ruler of Jaipur State Shri Bhawani Singh. I am further of the view that Article 51A of the Constitution of India enjoins a fundamental duty cast on every citisen of the State to respect and abide by the Constitution and respect its ideal and institutions and if this is so, then it is also the fundamental duty cast upon every citizen of the country to uphold the Constitution in utmost respect and there should be strict observance to the principles enshringed in the Constitution of India.
10. It will also be pertinent to mention here that learned counsel for the petitioner
has himself contended during the course of his arguments that the matter concerning acquisition of the land of the Polo-ground, Jaipur was also taken up in appeal before Hon’ble Supreme Court of India and that the Apex Court has already given its decision in the said matter which, in my view, is obiter under Article 141 of the Constitution. Article 141 of the Constitution deals with binding effect of the judgments or decisions rendered by the Apex Court of the country which provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India. Keeping this aspect also in view, it was not open to the petitioner to agitate any question concerning the acquisition of the aforesaid land known as Rambagh Polo-ground, Jaipur by or on behalf of the J.D.A. for the purpose of construction of residential houses, before this court, since the said question has already been earlier raised before the Apex Court and the Hon’ble Supreme Court has already dealt with the same by giving its valuable decision.
11. Keeping in view the aforesaid facts and circumstances of the case and the legal position and Constitutional provisions, 1 am of the considered view that this writ petition has no force and the contentions advanced by the learned counsel for the petitioner are not tenable and the petition deserves dismissal.
12. Consequently this writ petition fails and is dismissed with no order as to costs.