Greater Cochin Development Authority v. V.G. Jeji and State Information Commission

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY, THE 21ST DAY OF NOVEMBER 2016/30TH KARTHIKA, 1938** **WP(C).No. 11525 of 2008 (V)** **----------------------------** **PETITIONER(S): -------------** **GREATER COCHIN DEVELOPMENT AUTHORITY (GCDA), REPRESENTED BY ITS SECRETARY, KADAVANTHRA, KOCHI-682 020.** **BY ADV. SRI.S.B.PREMACHANDRA PRABHU** **RESPONDENT(S):** **--------------** **1. V.G.JEJI, VADEKEDATH HOUSE, CORREYA ROAD, PACHALAM, KOCHI-12.** **2. THE STATE INFORMATION COMMISSION, REPRESENTED BY ITS SECRETARY, PUTHAN ROAD,, THIRUVANANTHAPURAM-695 039.** **R1 BY ADVS. SRI.ASHIM.M.V. SRI.P.VIJAYAKUMAR R2 BY ADV. SRI.M.AJAY, SC,** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MLG** ## **WP(C).No. 11525 of 2008 (V)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1 TRUE COPY OF THE STATEMENT OF OBJECTIONS FILED BY THE GCDA IN COMPLAINT NO.882/06 BEFORE THE LOK AYUKTA, THIRUVANANTHAPURAM EXHIBIT P2 TRUE COPY OF THE APPLICATION DATED 27/1/2007 FILED BY THE FIRST RESPONDENT UNDER THE RTI ACT 2005 EXHIBIT P3 TRUE COPY OF THE REPLY DATED 25/02/07 SENT BY THE PETITIONER. EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 07/01/2008 SENT BY THE 2ND RESPONDENT TO THE PETITIONER EXHIBIT P4(A) TRUE COPY OF THE APPEAL DATED 18/06/07 FILED BY THE 1ST RESPONDENT BEFORE, 2ND RESPONDENT EXHIBIT P5 TRUE COPY OF THE REPORT DATED 15/01/2008 SENT BY THE PETITIONER EXHIBIT P6 TRUE COPY OF THE IMPUGNED ORDER DATED 08/02/2008 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P7 TRUE COPY OF THE COMPLIANCE REPORT DATED 12/03/2008 SENT BY THE PETITIONER** **RESPONDENT(S)' EXHIBITS NIL -----------------------** **//TRUE COPY//** **P.S TO JUDGE** **MLG** ## **P.V.ASHA, J.** ## **W.P.(C) No.11525 of 2008** ## **Dated this the 21[st] day of November, 2016** ## **JUDGMENT** The petitioner challenges Ext.P6 order to the extent it was directed to furnish the documents to the first respondent on the ground that under section 8(1)(e) of Right to Information Act, 2005 ('the Information Act' for short) the said information was not liable to be furnished. 2. The first respondent submitted an application before the Public Information Officer on 27.1.2007 as per Ext.P2 under the Information Act seeking the following: _1. One copy of statement of facts of the Secretary of GCDA (Shri.Manuel Vivera) if any given to the standing counsel for preparing counter affidavit for 1[st] , 2[nd] , 3[rd] and 4[th] respondents in complaint No.8822006 pending before the Hon'ble Lok ayuktha, Thiruvananthapuram._ _2. One copy of Master plan of CMDS_ 3. By Ext.P3 the first respondent was informed that the statement of facts furnished to the concerned Advocate for conducting case in the court is not a record duly catalogued and indexed or maintained as per rules so as to facilitate the Information Act and hence it does not come under the purview of the Information Act. The discussion with the lawyer and the outcome of the discussion so as to enable him to file written statement is no way part of the particular W.P.(C) No.11525 of 2008 **==> picture [14 x 9] intentionally omitted <==** records which are legally bound to be maintained as the part of the particular records. It was further informed that in the event Lokayuktha requires the entire officially maintained records, the authority must be ready to make available all those records for a fair determination. Regarding the request for a copy of the master plan it was stated that the original was not available with the authority and hence copy could not be given to the petitioner. The first respondent approached the second respondent-State Information Commission, with an appeal AP No.632/2007/SIC as against Ext.P3 reply. The appeal submitted before the appellate authority under the GCDA also was rejected. 4. As against that the first respondent submitted Ext.P4(a) appeal before the State Information Commission. On receipt of notice in respect of the appeal, the petitioner submitted Ext.P5, stating that the information sought by the first respondent under serial No.1 was not liable to be furnished in the light of section 8(1)(b) of the Right to Information Act and the appeal was rejected after obtaining the legal advice from the standing counsel of the petitioner. Regarding the 2[nd] request, it was stated that the original master plan was not available with the petitioner and therefore it was impossible to furnish a copy. W.P.(C) No.11525 of 2008 **==> picture [14 x 9] intentionally omitted <==** However, the second respondent issued Ext.P6 order directing the petitioner to furnish both the information he sought in Ext.P2 application. It was stated that the information sought by the first respondent was the information as provided under section 2(f). It was further stated that while rejecting the application under section 8, the petitioner had not stated under which subsection the application was rejected and that pendency of a case before the Lokayuktha cannot be a reason sufficient for rejecting the application for furnishing the written statement given to the standing counsel of the GCDA. Rejection of the copy of the plan was also found not in accordance with rules. 5. The petitioner approached this court mainly as against the direction to furnish the statement of facts requested by the first respondent in Ext.P2 application for preparing the counter affidavit for respondents 1 to 4 in complaint No.882/2006. Learned counsel for the petitioner submits that the information sought by the first respondent will come under section 8(1)(e) of the Information Act. According to which there shall be no obligation to give any citizen, information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants W.P.(C) No.11525 of 2008 **==> picture [14 x 9] intentionally omitted <==** the disclosure of such information. The petitioner also submitted that the statement of facts furnished to the standing counsel is not a record to be maintained by the petitioner. 6. I heard the learned Counsel for the petitioner and the learned Government Pleader. There is no appearance for the 1[st] respondent. 7. Section 4(1)(a) of the Information Act provides that every public authority shall maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated. Records are defined under section 2(i) of the Right to Information Act, according to which record includes (i) any documents, manuscript and file; (ii) any microfilm, microfiche and facsimile copy of a document; (iii) any reproduction of image or images embodied in such microfilm (whether enlarged or not); and (iv) any other material produced by a computer or any other device. In the judgment in _**Louis Mathew Vs. State Information Commissioner** [2016 (1) KLT 461]_ relied on by the learned counsel W.P.(C) No.11525 of 2008 **==> picture [14 x 9] intentionally omitted <==** for the petitioner, this court after referring to _**Central Board of Secondary Education and another vs. Aditya Bandovathvyay**_ _**and others** [(2011) 8 SCC 497]_ held that an authority is bound to furnish information in respect of only those records which are required to be maintained under section 4(1)(a). When the statement of facts is not not one liable to be catalogued or indexed as provided in section 4(1)(a), then it was not liable to be divulged or furnished to the first respondent. When the statement of facts does not come under the purview of records, it is not necessary to furnish any formation sought with respect to that. At any rate the 2[nd] respondent has not gone into any of these aspects while directing the petitioner to issue the copy of the statement of facts. 8. It is relevant to note that the applicant wanted copy of the statement of facts at a time when the counsel for the petitioner had already filed a written statement and at a time when the written statement was very much available before the Lokayuktha. At the moment the statement of facts is furnished to its counsel, the nature and character of the document attains the privilege of confidentiality. Once it reaches the hands of the counsel it is completely within the domain of the counsel and thereafter the statement of facts can no W.P.(C) No.11525 of 2008 **==> picture [14 x 9] intentionally omitted <==** longer be given to anybody even assuming that it is a record as defined under the Right to Information Act. Hence the applicant cannot have any right to get the copy of such a record and the authorities are not right in directing to furnish such a document. 9. As rightly contended by the learned counsel for the petitioner the action of the petitioner is justified in the light of the provisions contained in section 126 and 129 of the Indian Evidence Act, 1872 also, which provides 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 illegal purpose,_ _(2)act 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, 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 ceased._ _129.Confidential communications with legal advisers. —No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others._ W.P.(C) No.11525 of 2008 **==> picture [14 x 9] intentionally omitted <==** 10. In the light of the aforesaid provisions read with Section 8(1) (e) of the Act, which takes in these provisions, the direction to furnish the statement of facts which the petitioner had already entrusted to their lawyer in order to defend the case, is not proper or correct or legal. In these circumstances the order Ext.P5 to the extent it directs to furnish copy of the statement of facts i.e the information sought for by the applicant in serial No.1 in Ext.P2 is hence set aside. The writ petition is disposed of accordingly. Sd/- **P.V.ASHA JUDGE** rkc