Central Information Commission
Mr.Pavan Sachdeva vs Cbi on 23 July, 2010
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2009/000495 dated 20.4.2009
Right to Information Act 2005 - Section 19
Appellant - Shri Pavan Sachdeva
Respondent - Central Bureau of Investigation (CBI)
Heard & Decision announced: 23.7.2010
Facts:
By an application of 23.12.08 Shri Pavan Sachdeva of Ekta Enclave, New Delhi applied to the Director, CBI seeking the following information:
"I request your good self to provide me the certified copy of legal opinion provided by Ministry of law & Justice in regard to the case in RC 25(A)/95-Bom registered on 4.4.1995 against SEBI officials, the said opinion was obtained in 1998 on the reference regarding sanction for prosecution of Shri M. D. Patel and two other SEBI officials which was sent by Director, SEBI vide its letter dated 17.10.1997 and the said opinion was forwarded to the director, CBI."
To this, Shri Pavan Sachdeva received a response of 23.1.09 from CPIO Shri Praveen Sulanke, SP, CBI, ACB Mumbai informing him as follows:
"It is informed that the certified copy of legal opinion provided by the Ministry of Law & Justice as requested by you is not available in the branch office."
Shri Sachdeva has then moved an appeal before Ms. Sonali Mishra, DIG CBI ACB Mumbai on 3.2.09 pleading as follows:
"Direct Director, CBI, CGO complex, Lodhi Road, New Delhi and Supdt. Of Police, CBI, ACB, Mumbai to provide certified copy of the requisitioned document-legal opinion provided by the Ministry of Law & Justice to case no. RC 25 (A) (A)/95-Bom registered on 4.4.1995 against SEBI officials to the appellant/ applicant as requested in his application dated 23.12.2008 under RTI Act, 2005."
Upon this, Ms. Sonali Mishra, DIGP, CBI, ACB Mumbai in her letter of 27.2.09 has ordered as follows:
1"In this matter records of CBI Anti-Corruption Branch, Mumbai pertaining to the said case no. RC 25O(A)/1995-Mum was examined and it was found that no such copy of legal opinion was provided by the Ministry of Law & Justice, Govt. of India, New Delhi, is on record and hence CPIO cannot be directed to supply the same.
Therefore, your appeal in the matter is rejected.
However, since it is a third party information u/s 11 of RTI Act, CPIO/SP, CBI, ACB, Mumbai is being directed to send a letter to the CPIO, the Ministry of Law & Justice, Govt. of India, New Delhi, to intimate as to whether they have rendered any opinion in this regard and on receipt of reply from them you will be informed accordingly and your appeal will be disposed off as per the law."
Shri Sachdeva has then moved a second appeal before us with the following prayer:
"(a) Direct the concerned authorities of CBI at New Delhi as well as at Mumbai to provide certified copy of the requisitioned document-legal opinion provided by the Ministry of Law & Justice to case no. RC25 (A)/95-Bom registered on 4.4.1995 against SEBI officials to the appellant as requested in his application dated 23.12.2008 under RTI Act, 2005.
(b) Pass the order summoning the officer(s) responsible for maintaining the records;
(c) Allow personal hearing to the appellant before disposal of this appeal.
(d) Pass an order as to cost as the appellant suffered unnecessarily.'"
In his grounds of appeal, Shri Sachdeva has dwelt upon the need for an RTI but the only argument with regard to the subject at issue in this application, as follows:
"That DIGP, CBI, ACB, Mumbai vide its order dated 27.2.2009 rejected the appellant's appeal stating that as no copy of the legal opinion was provided by the Ministry of Law & Justice, is on record and hence CPIO cannot be directed to supply the same. In the aforesaid order dated 27.2.2009, CBI has stated that a letter has been sent to the CPIO, the Ministry of Law & Justice, New Delhi to intimate as to whether they have rendered any opinion in this regard and on receipt of reply from them, the appellant will be 2 informed accordingly. So far, there has been no response in this regard."
The appeal was heard through videoconference on 23.7.10. The following are present:
Respondents at CIC Studio, New Delhi.
Sh. Jagroop Gusinha, AIG (P), CBI Sh. Bhupal Singh, PA to AIG CBI at NIC Studio, Mumbai Sh. Sudhakar, Dy. Legal Advisor, CBI Shri Praveen Sulanke, DIG (P), CBI Although appellant Sh.Pawan Sachdeva had been informed by Notice dated 7.7.2010 regarding the hearing, he has opted not to be present.
DECISION NOTICE The relationship between a lawyer and a client is fiduciary. In spelling out the details of a fiduciary relationship, I can do no better than Hon'ble Ravinder Bhat J of the Delhi High Court in WP( C) No. 288/2009 - Supreme Court of India vs. S. C. Agrawal & Anr. of 2.9.'09. In this case the learned Justice has held as follows
55. It is necessary to first discern what a fiduciary relationship is, since the term has not been defined in the Act. In Bristol & West Building Society v. Mathew [1998] Ch 1, the term "fiduciary", was described as under: "A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence." Dale & Carrington Invt. (P) Ltd. v. P.K. Prathapan, (2005) 1 SCC 212 and Needle Industries (India) Ltd v. Needle Industries (Newey) India Holding Ltd: 1981 (3) SCC 333 establish that Directors of a company owe fiduciary duties to its shareholders. In P.V. Sankara Kurup v. Leelavathy Nambiar, (1994) 6 SCC 68, the Supreme Court held that an agent and power of attorney holder can be said to owe a fiduciary relationship to the principal.
56. In a recent decision (Mr. Krishna Gopal Kakani v. Bank of Baroda 2008 (13) SCALE 160) the Supreme Court had to decide 3 whether a transaction resulted in a fiduciary relationship. Money was sought to be recovered by the plaintiff, from a bank, who had moved the court for auction of goods imported, and retained the proceeds,; the trail court overruled the objection to maintainability, stating that the bank held the surplus (of the proceeds)in a fiduciary capacity. The High Court upset the trial court's findings, ruling that the bank did not act in a fiduciary capacity. The Supreme Court affirmed the High Court's findings. The court noticed Section 88 of the Trusts Act, which reads as follows: "Section 88.Advantage gained by fiduciary.- Where a trustee, executor, partner, agent, director of a company, legal advisor, or other person bound in a fiduciary character to protect the interests of another person, by availing himself of his character, gains for himself any pecuniary advantage, or where any person so bound enters into any dealings under circumstances in which his own interests are, or may be, adverse to those of such other person and thereby gains for himself a pecuniary advantage, he must hold for the benefit of such other person the advantage so gained." Affirming the High Court's findings that the bank did not owe a fiduciary responsibility to the appellant, it was held by the Supreme Court, that: "9.An analysis of this Section would show that the Bank, to whom the money had been entrusted, was not in the capacity set out in the provision itself. The question of any fiduciary relationship therefore arising between the two must therefore be ruled out. It bears reiteration that there is no evidence to show that any trust had been created with respect to the suit money..." The following kinds of relationships may broadly be categorized as fiduciary:
• Trustee/beneficiary (Section 88, Indian Trusts Act, 1882); • Legal guardians / wards (Section 20, Guardians and Wards Act, 1890);
• Lawyer/client1; • Executors and administrators / legatees and heirs; • Board of directors / company; • Liquidator/company; • Receivers, trustees in bankruptcy and assignees in insolvency / creditors; • Doctor/patient; • Parent/child.
The Advanced Law Lexicon, 3rd Edition, 2005, defines fiduciary relationship as "a relationship in which one person is under a duty to act for the benefit of the other on the matters within the scope of the relationship ....Fiduciary relationship usually arise in one of the four situations (1) when one person places trust in the faithful integrity of another, who is a result gains superiority or influence 1 Highlighted by us to emphasise the point at issue 4 over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act or give advice to another on matters falling within the scope of the relationship, or (4) when there is specific relationship that has traditionally be recognized as involving fiduciary duties, as with a lawyer and a client, or a stockbroker and a customer " 58. From the above discussion, it may be seen that a fiduciary relationship is one whereby a person places complete confidence in another in regard to a particular transaction or his general affairs or business. The relationship need not be formally or legally ordained, or established, like in the case of a written trust; but can be one of moral or personal responsibility, due to the better or superior knowledge or training, or superior status of the fiduciary as compared to the one whose affairs he handles"
Legal opinion is therefore, always opinion provided by a lawyer to a client in fiduciary capacity. In the present case, moreover the plea of respondent is that there is no legal opinion on record, a fact which appears to be confirmed by the Ministry of Law & Justice through its failure to respond to the request of CBI. Even if it were so available, it is still to be refused u/s 8(1) (e) unless appellant Shri Pavan Sachdeva is able to show that the larger public interest warrants disclosure of such information, which in this case he has not attempted. The appeal is, therefore, dismissed.
Announced in the hearing. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 23.7.2010 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
(Pankaj K.P. Shreyaskar) Joint Registrar 5 23.7.2010 6