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2009 DIGILAW 918 (GAU)

Binoya Dutta v. State of Meghalaya

2009-12-22

BROJENDRA PRASAD KATAKEY

body2009
JUDGMENT Brojendra Prasad Katakey, J. 1. The Petitioner, who is a practicing advocate and formerly a Govt. Advocate of the State of Meghalaya, by the present petition has challenged the notification dated 21.09.2006 (Annexure-3) issued by the Joint Secretary to the Govt. of Meghalaya, Law (A) Department; communication dated (Annexure-5) issued by the Under Secretary to the Govt. of Meghalaya-cum-Public Information Officer refusing to furnish certain documents sought for by the Petitioner under the Right to Information Act, 2005; order dated 06.03.2007 (Annexure-6) passed by the Appellate Authority cum the Secretary to the Govt. of Meghalaya, Law Department under the Right to Information Act rejecting the appeal preferred by the Petitioner against the decision of the Public Information Officer refusing to furnish certain documents as well as the order dated (Annexure-8) passed by the Chief Information Commissioner (CIC) in the appeal preferred by the Petitioner against the decision of the Appellate Authority in so far as the prayer for furnishing certain documents made by the Petitioner. 2. The facts leading to the filing of the writ petition may be noticed as under: The Petitioner, who is a practicing advocate, was initially appointed as Government panel advocate for the State of Meghalaya on 25.11.1982, then as Addl. Govt. Advocate on 16.03.1987 and thereafter as Govt. Advocate on 14.06.2002. While the Petitioner was discharging her duties in the said capacity, another advocate was appointed as Sr. Govt. Advocate for the State of Meghalaya against which the Petitioner submitted a representation dated 24.01.2006 before the Deputy Chief Minister, Government of Meghalaya, which was sent to the then Advocate General for comment and accordingly comment was given, upon consideration of which the same has been rejected on 17.03.2006. According to the Petitioner the then Advocate General, Meghalaya on 19.08.2006 wrote to the Govt. of Meghalaya, leveling certain allegations against her, which culminated to the issuance of the notification dated 21.09.2006 (Annexure-3) by the Joint Secretary to the Government of Meghalaya, Law(A) Department discontinuing her services as Govt. Advocate with immediate effect. The Petitioner thereafter on 12.10.2006 filed an application before the Public Information Officer, Law Department, Govt. of Meghalaya, leveling certain allegations against her, which culminated to the issuance of the notification dated 21.09.2006 (Annexure-3) by the Joint Secretary to the Government of Meghalaya, Law(A) Department discontinuing her services as Govt. Advocate with immediate effect. The Petitioner thereafter on 12.10.2006 filed an application before the Public Information Officer, Law Department, Govt. of Meghalaya, requesting him to furnish (i) a copy of her letter dated 24.01.2006 addressed to the Deputy Chief Minister, In-Charge Law Department, Meghalaya; (ii) letter dated 10.02.2006 issued by the Law Department to the then Advocate General, Meghalaya seeking comment on the said representation; (iii) the comment of the then Advocate General thereto; (iv) letter dated issued by the then Advocate General to the Chief Secretary to the Govt. of Meghalaya, as well as (v) relevant note sheet processing her case prior to issuance of the notification dated 21.09.2006 discontinuing her service as Govt. Advocate. The Public Information Officer vide communication dated 20.12.2006 (Annexure-5) while furnishing the copy of the representation filed by the Petitioner dated 24.01.2006 addressed to the Deputy Chief Minister, rejected her request to furnish the other documents on the ground that those are confidential and no public purpose would be served by revealing the same. The said order had been challenged by the Petitioner before the Appellate Authority under Section 19(1) of the Right to Information Act, 2005 (in short the Act), which was however dismissed vide order dated by holding that the documents sought for are information available in fiduciary relationship and as such cannot be disclosed in view of the provisions contained in Section 8(1)(e) of the Act. A further appeal under Section 19(3) of the Act was filed by the Petitioner before the State Information Commission, which was disposed of vide order dated 23.07.2007, partly allowing the same, directing the Law Department of Govt. of Meghalaya to furnish the Petitioner the relevant note sheet processing her case prior to issuance of the notification dated 21.09.2006, while rejecting the prayer of the Petitioner for furnishing the copies of the letter dated 10.02.2006 addressed to the then Advocate General, reply made by him and the communication dated 19.08.2006 issued by the then Advocate General to the Chief Secretary to the Govt. of Meghalaya, on the ground that disclosure of the same is exempted under Section 8(1)(e) of the Act, such communication being made in fiduciary capacity. of Meghalaya, on the ground that disclosure of the same is exempted under Section 8(1)(e) of the Act, such communication being made in fiduciary capacity. Hence the present writ petition. 3. I have heard Mr. M.Z. Ahmed, the learned Sr. Counsel for the Petitioner and Mr. R.K. Deb Choudhury, the learned counsel appearing on behalf of Respondent Nos. 1, 3, 4 and 5. None appears for the Respondent No. 2. 4. The learned Sr. Counsel for the Petitioner at the outset has submitted that the Petitioner is aggrieved by the refusal to supply the documents sought for by her under the provisions of the Act, and the Petitioner does not press the prayer made in the writ petition challenging the notification dated 21.09.2006 (Annexure-3). Referring to the object of flaming the Act, it has been submitted by the learned Sr. Counsel that since the Act has been framed recognizing the right of a citizen to get the information so as to maintain transparency in functioning of the Government and their instrumentalities, the request for furnishing information can only be withheld provided it comes within any of the clauses of Section 8(1) of the Act. According to the learned Sr. Counsel, the duties of the Advocate General of a State being to advice the Government upon the legal matters, which are referred or assigned to him by the Governor, under Article 165 of the Constitution of India, the communications issued by the Law Department and the reply submitted by the then learned Advocate General thereto as well the communication issued by the then Advocate General to the Chief Secretary cannot be termed as information available to the Government in fiduciary relationship with the Advocate General, so as to debar disclosure within the meaning of Section 8(1)(e) of the Act, those communications having not been issued pursuant to any reference or assignment by the Governor of the State. It has further been submitted that the relation between the Advocate General and the State is not like an advocate and a client and as such any communication issued to the Advocate General as well as the communication issued by the Advocate General to the State cannot be termed as the information received in fiduciary relationship. The learned Sr. It has further been submitted that the relation between the Advocate General and the State is not like an advocate and a client and as such any communication issued to the Advocate General as well as the communication issued by the Advocate General to the State cannot be termed as the information received in fiduciary relationship. The learned Sr. Counsel, therefore, submits that the necessary directions may be issued to supply the copies of the documents sought for, by setting aside the orders passed by the Public Information Officer as well as the Appellate Authorities constituted under the Act. 5. The learned Counsel appearing for the Respondents on the other hand supporting the order passed by the Chief Information Commissioner (CIC), dated 23.07.2007 has submitted that the Government of Meghalaya has already supplied the note sheet as directed by the CIC in his aforesaid order, while refusing to furnish the other documents, those being the information available to the State in fiduciary relationship with the Advocate General and hence cannot be disclosed, in view of the provisions contained in Section 8(1)(e) of the Act. It has been submitted that the Advocate General of a State may require to furnish certain informations to the State relating to the functioning of the office of the Sr. Govt. Advocate as well as the conduct of the Government Advocates for smooth functioning. Such communications/information furnished by the Advocate General to the Law Department of the State or to the Chief Secretary being in fiduciary capacity the same cannot be disclosed in view of Section 8(1)(e) of the Act. According to the learned Counsel, the information furnished by the Advocate General was for the benefit of the State, with whom he stands in a relation implying and necessitating great confidence and trust on the one part and the high degree of good faith on the other and as such any communication between a department of the State Govt. and the Advocate General is exempted from disclosure under Section 8(1)(e) of the Act. 6. I have considered the submissions of the learned Counsel for the parties and also perused the pleadings as well as the records produced by the State Respondents. 7. The question which requires determination in the present case is whether the relationship between the Advocate General and the State Government is fiduciary within the meaning of Section 8(1)(e) of the Act. I have considered the submissions of the learned Counsel for the parties and also perused the pleadings as well as the records produced by the State Respondents. 7. The question which requires determination in the present case is whether the relationship between the Advocate General and the State Government is fiduciary within the meaning of Section 8(1)(e) of the Act. The said Act has been enacted to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. It is an attempt to promote the democratic norms and the principles. The Act, however, envisaged harmonizing the conflicting interests, i.e. the requirement of informing the citizens and transparency of information relating to the Governmental functioning and the conflict with other public interest as well as preservation of confidentiality of sensitive information, while preserving the paramountcy of the democratic ideal. The object of the Act, therefore, is to enable the citizens to scrutinize all Government acts, except the exempted matters, as provided in the Act, so as to ensure greater accountability and transparency in Governmental functioning. 8. The right to information though a facet of the fundamental right of speech and expression guaranteed under Article 19(1)(a) of the Constitution such fundamental right is subject to reasonable restrictions under Article 19(2) of the Constitution. The Act though recognizes such right, it imposes certain reasonable restrictions in Section 8. The authority is not obliged to furnish information to any citizen, which comes within the purview of Clauses (a) to (j) of Sub-section (1) of Section 8 of the Act. Sub-section (2) of Section 8, however, provides that a public authority may allow access to information, if public interest in disclosure overweighs the harm to the protected interests, notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions as enumerated in sub-section (1) of Section 8 of the Act. Sub-section (3) of Section 8 further stipulates that subject to the provisions of Clauses (a), (c) and (i) of Sub-section (1), any information relating to any occurrence, event or matter, which has taken place, occurred or happened 20 years before the date on which any request is made under Section 6 shall be provided to any person making a request under that Section. Section 10 of the Act mendates the authority to furnish the information relating to that part of the record, which does not contain any information which is exempted from disclosure and which can reasonably be severed from any part that contains exempted information. 9. Having noticed the broad features of the Act, I shall now proceed to deal with the core issue involved in the present writ petition. The information i.e. the communications between the Advocate General and the Law Department as well as the Chief Secretary of the State are withheld from the Petitioner on the ground that those are available to the State in fiduciary relationship with the Advocate General and disclosure of the same is exempted under Section 8(1)(e) of the Act and it would not serve any public purpose. For better appreciation. Section 8(1)(e) of the Act, is reproduced below: 8.(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen. (e) Information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information. 10. The word fiduciary has been defined in Black's Law Dictionary (Seventh Edition) as:- 1. One who owes to another the duties of good faith, trust, confidence and candor the corporate officer is a fiduciary to the shareholders. 2. One who must exercise a high standard of care in managing another money or property the beneficiary sued the fiduciary for investing in speculative securities. According to the Black's Law Dictionary (Seventh Edition) fiduciary duty is a duty of utmost good faith, trust, confidence and candor owed by a fiduciary, such as a lawyer or corporate officer, to beneficiary, such as a lawyer's client or a shareholder; a duty to act with the highest degree of honesty and loyalty towards another person and in the best interests of the other person. Expression the fiduciary relationship has been defined in the said dictionary as under: A relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the relationship. Fiduciary relationships, such as trustee-beneficiary, guardian-ward, agent-principal, and attorney-client, require the highest duty of care. Expression the fiduciary relationship has been defined in the said dictionary as under: A relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the relationship. Fiduciary relationships, such as trustee-beneficiary, guardian-ward, agent-principal, and attorney-client, require the highest duty of care. Fiduciary relationships is arise in one of four situations: (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another , (3) when one person has a duty to act for or give advice to another on matters falling the scope of the relationship, or (4) when there is a specific relationship that has traditionally been recognized as involving fiduciary duties, as with a lawyer and a client or a stockbroker and a customer. 11. The term fiduciary relation connotes a relation of trust as the basis of obligation of one and of security for the other and involves the idea of trust and confidence. Such relation may exist under a great variety of circumstances; it exists in all cases where there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith, and with due regard to the interest of the one reposing the confidence; or whenever trust and confidence are reposed by one person in the integrity and fidelity of another or where one person reposes special confidence on another, or where special duty exists on the part of one person to protect the interests of another or when there is a reposing of faith, confidence, and trust, and the placing of reliance by one person on the judgment and advise of another. A person in a fiduciary relation to another is under a duty to act for the benefit of the other as to the matters within the scope of the relation. (Corpus Juris Secundum) 12. Article 165 of the Constitution of India provides for appointment of the Advocate General of the State. A person in a fiduciary relation to another is under a duty to act for the benefit of the other as to the matters within the scope of the relation. (Corpus Juris Secundum) 12. Article 165 of the Constitution of India provides for appointment of the Advocate General of the State. It also imposes a duty on the Advocate General to give advice to the Government of the State upon such legal matters, and to perform such other duties of legal character, as may from time to time be referred or assigned to him by the Governor, and to discharge the functions conferred on him by or under the Constitution or any other law for the time being in force. The Constitution, imposes a duty on the Advocate General to advise the Government of a State on the legal matters referred or assigned to him by the Governor. The Advocate General can also express his opinion or issue a communication to a department in the legal matters and also relating to the functioning of his office or the office of the Sr. Govt. Advocate, even in the absence of reference or assignment made to him by the Governor in that respect. While Article 165(2) of the Constitution of India imposes the duty on the Advocate General to advice the Governor, it has not taken away the right of the Advocate General to inform the State Government or its departments about the functioning of either of his office or in the office of the Sr. Govt. Advocate of the State, which naturally amounts to performance of duties of a legal character and not for his own interest or for his own benefit but for the benefit of the State Government. The Advocate General being the Chief Law Advisor to the Government of a State is to act for the benefit of the State. He, whenever necessary, has to keep the Government informed about the functioning of the Govt. Advocates. Such communication between the Advocate General and the State are privileged communication and in discharging his duties of a legal character. 13. The relationship between the Advocate General and the State Government as well as with the departments of the State Government is fiduciary in nature, as it is based on trust and confidence. Advocates. Such communication between the Advocate General and the State are privileged communication and in discharging his duties of a legal character. 13. The relationship between the Advocate General and the State Government as well as with the departments of the State Government is fiduciary in nature, as it is based on trust and confidence. The State Government reposes special confidence on the Advocate General, who is bound to act in good faith with due regard to the interest of the State Government and who is to protect the interest of the State Government. Any communication issued by the Advocate General to protect the interest of the State Government, and which is not for his own interest or benefit but for the benefit of the State Government as to whom he stands in a relation implying and necessitating great confidence and trust on the one part and the high degree of good faith on the other, are the information available to the State Government or its departments in fiduciary relationship with the Advocate General. The Advocate General woes to the State Government the duties of good faith, trust and confidence and he has a duty to act for and give advice to the Government on the matters falls within their relationship. Any communication between the Advocate General and the State or its instrumentalities issued in order to perform the duties of a legal character cannot therefore be disclosed, in view of the exemption enumerated in Section 8(1)(e) of the Act, unless larger public interest warrants the disclosure of such information. It is not the case of the Petitioner that the communications between the Advocate General and the department of the State Government as well as the Chief Secretary of the State though are exempted from disclosure under Section 8(1)(e) of the Act, since disclosure of such informations are required in larger public interest, such disclosure is required to be made. It is also not the case of the Petitioner that part of such informations can be disclosed by invoking the provisions of Section 10 of the Act. Perusal of the communications, which have not been furnished to the Petitioner, reveals that those were issued for the benefit of the State Government and not for personal benefit or interest of anyone. There is also no overriding public interest involved for disclosure of such information. 14. Perusal of the communications, which have not been furnished to the Petitioner, reveals that those were issued for the benefit of the State Government and not for personal benefit or interest of anyone. There is also no overriding public interest involved for disclosure of such information. 14. In view of the aforesaid discussions, I am of the view that the CIC has rightly passed the order dated 23.07.2007, which requires no interference by this Court. 15. The writ petition is, therefore, dismissed being devoid of any merit. No cost. Petition dismissed.