Nimish Mahendra Kapadia vs The Dy. Secretary, Gujarat ...
2023 Latest Caselaw 1436 Guj

    C/SCA/14733/2020                             JUDGMENT DATED: 13/02/2023




                 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 14733 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                   NIMISH MAHENDRA KAPADIA
                             Versus
      THE DY. SECRETARY, GUJARAT INFORMATION COMMISSION
==========================================================
Appearance:
MR R N KAPADIA(11245) for the Petitioner(s) No. 1
MS JAHNVI N KAPADIA(10987) for the Petitioner(s) No. 1
NISARG S SHAH(8886) for the Petitioner(s) No. 1
MR.ROHAN SHAH, AGP for the Respondent(s) No. 3
MR SHIVANG M SHAH(5916) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 13/02/2023

                            ORAL JUDGMENT

1. Heard Mr.Nisarg Shah learned advocate for

C/SCA/14733/2020 JUDGMENT DATED: 13/02/2023

Mr.R.N.Kapadia learned advocate for the

petitioner, Mr.Shivang Shah learned advocate for

respondent nos.1 and 2 and Mr.Rohan Shah

learned advocate for respondent no.3.

2. This petition under Article 226 of the

Constitution of India, initially was filed against

the order dated 10.09.2020 in Second Appeal

No.340 of 2020 passed by the respondent no.1.

By the aforesaid order, the Gujarat Information

Commission had in context of the information

sought by the petitioner remanded the

proceedings to the First Appellate Authority to

decide the matter afresh. Pending the petition,

on remand, the Deputy Collector (PIO) has

rejected the application for providing information

sought for by the petitioner.

3. The petitioner is a practicing advocate in this

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Court and therefore the orders impugned in this

petition have to be seen in light of this fact in

particular. In context of proceedings before this

Court in Special Civil Application No.7605 of

2010, where, the petitioner herein was the

counsel for the petitioner therein, as it appears

from the papers on record, the petition was

allowed by a coordinate bench of this Court by a

judgement and order dated 23.06.2016.

Aggrieved by this order, the State went in appeal

and filed Letters Patent Appeal before this Court.

Apparently, there was a delay in filing the appeal

and therefore a Civil Application for condonation

of delay was filed by the State.

4. The petitioner, an advocate for the respondent in

the appeal, approached the Public Information

Officer/Collector, Athwalines, Surat, together

with a status report of the Letters Patent Appeal

C/SCA/14733/2020 JUDGMENT DATED: 13/02/2023

and the application for condonation of delay filed

in this Court. In the application under the Right

to Information Act, the petitioner asked for

details of the correspondence with the parties to

the appeal i.e. the office of the Mamlatdar, the

legal department and the Revenue Department

had entered into with the Government Pleader's

office and that instructions that were passed on

in context of the Civil Application for

condonation of delay and the Letters Patent

Appeal. The Principal Information Officer,

Collector, District:Surat, by an order dated

08.09.2019, opined that the details shall be

produced before the Court. It was also pointed

out that one of the applicants viz. Pravin K.

Gajjar, a party to the appeal had already sought

information earlier which was rejected on

06.02.2018.

C/SCA/14733/2020 JUDGMENT DATED: 13/02/2023

5. Aggrieved by the order, the petitioner herein had

filed a First Appeal before the Appellate

Authority. The Appellate Authority too by an

order dated 17.12.2019, opined that since the

parties were arrayed against each-other in the

Court proceedings, no further information need

to be provided. The petitioner then approached

the Second Appellate Authority i.e. G.I.C..

Initially the impugned order under challenge was

that of remand. Pending the petition, as is now

part of the amended petition, challenge is also to

the order of the PIO on remand invoking Section

8(1)(B) of the RTI Act whereof the application

was rejected.

6. Mr.Nisarg Shah learned counsel for the

petitioner would submit that the impugned

communication is bad inasmuch as;

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(I) The petitioner was entitled to seek details of

the correspondences between the parties so as to

know the reasons why there was delay in filing

the appeal before this Court.

(II) Inviting the Court's attention to the

provisions of Section 18A, he would submit that

certainly it was not a case where information or

such disclosure would endanger the sovereignty

and integrity of the State or any of the

contingencies arising under Section 8(1)(a) of

the Act.

(III) Mr.Shah would further submit that the

application that was sought for ought to have

been given to the petitioner as none of the

contingencies arising under Section 8 of the RTI

Act were existing. The correspondence between

the parties would in fact reveal the reasons why

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the State had gone in appeal before this Court

and supply of such information would have

facilitated the petitioner from arguing the case

before this Court in the appeal filed by the State.

7. Mr.Shivang Shah and Mr.Rohan Shah learned

counsels appearing for the Commission and the

State would submit that essentially, a wrong

provision through oversight was mentioned by

the authority on remand and what in fact was

invoked was clause (e) of section 8(1) of the RTI

Act which exempted the authorities to disclose

information available to a person in his fiduciary

relationship. Even the Civil Application for

condonation of delay was though granted, the

Letters Patent Appeal of the State has now been

dismissed on merits by judgment and order dated

24.11.2021.

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8. Mr.Nisarg Shah learned counsel for the

petitioner would submit that the information

would support the petitioner as the State

contemplates challenging the order before the

Supreme Court.

9. Considering the submissions made by the

learned counsel for the petitioner as stated out in

the earlier part of this order, a glaring fact that

needs to be observed is that this is not a fit case

where an ordinary litigant litigating in Court is

seeking information under the provisions of the

Right to Information Act. An advocate,

practicing at the bar of this Court seeks

information in a case which he contests for the

respondents who are appellants before the Court

in an appeal against the order of a single judge

where the present petitioner advocate has

succeeded on behalf of the petitioner and is a

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respondent in the appeal. He represents the

party respondent in the State appeal.

10. The request made by the petitioner

therefore has to be viewed in that context.

Reading the application under the RTI Act would

indicate that as an advocate appearing for the

party respondent in proceedings before this

Court, the petitioner has asked for details of the

correspondence that the advocate for the

government entered into between the various

offices before filing an appeal and/or application

for condonation of delay.

11. Without getting into the motive of the

learned counsel-the petitioner himself, it can be

safely inferred that it was open for the petitioner

as an advocate to contest the application filed

before this Court on merits and not use the

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provisions of the RTI Act for reasons to support

his professional pursuit before this Court where

he would appear as an advocate. This is

particularly when reading of the orders

impugned indicate that an earlier application

was made by one of the parties to the litigation,

which was rejected by the information

authorities.

12. The judicial proceedings before this Court in the

Civil Application for condonation of delay were at

large and could have been contested by the

petitioner herein in his professional capacity as a

lawyer and the attempt to seek details under the

Right to Information Act of the correspondence

between the Government Pleader's office and the

State was essentially an attempt to subvert the

judicial proceedings which could have been

contested on merits by the counsel, the

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petitioner himself.

13. Even otherwise, as rightly pointed out by

Mr.Shivang Shah learned counsel appearing for

the Information Commission by relying on a

decision of the Delhi High Court in case of

Union of India v. R.K.Jain rendered in Letters

Patent Appeal No.168 of 2015 and C.M. No.5470

of 2015, considering the provisions of Section

8(1)(e) of the Right to Information Act and the

provisions of Section 126 of the Evidence Act, it

is clear that communications between the office

of the Government Pleader and the State in

respect to judicial proceedings were professional

communications as defined under Section 126 of

the Evidence Act and therefore would squarely

fall within the exemption under Section 8(1)(e) of

the Right to Information Act. Paras 22 to 24 of

this decision read as under:

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"22. Reference in this context may be had to Section 126 of the Evidence Act which reads as follows:-

126. Professional communications.--No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment:

Provided that nothing in this section shall protect from disclosure--

(1) Any such communication made in furtherance of any 1[illegal] purpose; 2[illegal] purpose;"

(2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment. It is immaterial whether the attention of such barrister, 2[pleader], attorney or vakil was or was not directed to such fact by or on behalf of his client. Explanation.--The obligation stated in this section continues after the employment has

C/SCA/14733/2020 JUDGMENT DATED: 13/02/2023

ceased.

23. In a catena of judgments, the Supreme Court has reiterated that a lawyer acts in a fiduciary capacity with his client. Reference maybe had to the judgment of the Supreme Court in the case of Central Board of Secondary Education & Anr. vs. Aditya Bandopadhyay & Ors., (2011) 8 SCC

497. That was a case where the petitioner in the writ petition had made an application for inspection and re-evaluation of the answer book. While dealing with the contention of the CBSE that the examining body holds the evaluated answer books in a fiduciary relationship, the Supreme Court held as follows:-

41. In a philosophical and very wide sense, examining bodies can be said to act in a fiduciary capacity, with reference to students who participate in an examination, as a government does while governing its citizens or as the present generation does with reference to the future generation while preserving the environment. But the words 'information available to a person in his fiduciary relationship' are used in Section 8(1)(e) of RTI Act in its normal and well recognized sense, that is to refer to persons who act in a fiduciary capacity, with reference to a specific beneficiary or beneficiaries who are to be expected to be protected or benefited by the actions of the fiduciary - a trustee with reference to the beneficiary of the trust, a guardian with reference to a minor/physically/infirm/mentally

C/SCA/14733/2020 JUDGMENT DATED: 13/02/2023

challenged, a parent with reference to a child, a lawyer or a chartered accountant with reference to a client, a doctor or nurse with reference to a patient, an agent with reference to a principal, a partner with reference to another partner, a director of a company with reference to a share-holder, an executor with reference to a legatee, a receiver with reference to the parties to a lis, an employer with reference to the confidential information relating to the employee, and an employee with reference to business dealings/transaction of the employer. We do not find that kind of fiduciary relationship between the examining body and the examinee, with reference to the evaluated answer-books, that come into the custody of the examining body.

24. Similarly in the case of Kokkanda B. Poondacha & Ors. vs. K.D.Ganapathi & Anr., (2011) 12 SCC 600 the Supreme Court held as follows:-

12. At this stage, we may also advert to the nature of relationship between a lawyer and his client, which is solely founded on trust and confidence. A lawyer cannot pass on the confidential information to anyone else. This is so because he is a fiduciary of his client, who reposes trust and confidence in the lawyer. Therefore, he has a duty to fulfil all his obligations towards his client with care and act in good faith.

Since the client entrusts the whole

C/SCA/14733/2020 JUDGMENT DATED: 13/02/2023

obligation of handling legal proceedings to an advocate, he has to act according to the principles of uberrima fides, i.e., the utmost good faith, integrity, fairness and loyalty."

14. For the aforesaid reasons, the petition is

dismissed.

(BIREN VAISHNAV, J) ANKIT SHAH