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Col (Retd) Subhash Talwar vs Punjab & Haryana High Court on 12 January, 2022

                               केन्द्रीयसूचनाआयोग
                       Central Information Commission
                            बाबागंगनाथमागग, मुननरका
                       Baba Gangnath Marg, Munirka
                        नईनिल्ली, New Delhi - 110067

द्वितीय अपील संख्या / Second Appeal No. CIC/PUHCC/A/2019/154035

Col Subhash Talwar (Retd)                                   ... अपीलकताा /Appellant
                                VERSUS/बनाम

PIO                                                   ...प्रद्वतवादीगण /Respondent
Punjab & Haryana High Court
Date of Hearing                      :   30.12.2021
Date of Decision                     :   12.01.2022
Chief Information Commissioner       :   Shri Y. K. Sinha

Relevant facts emerging from appeal:

RTI application filed on             :   08.07.2019
PIO replied on                       :   27.08.2019
First Appeal filed on                :   05.09.2019
First Appellate Order on             :   14.10.2019
2ndAppeal/complaintdated             :   08.11.2019

Information sought

and background of the case:

The Appellant filed an RTI application dated 08.07.2019 seeking information on the following:-

"

"

The PIO, Office of Advocate General, Haryanavide letter dated 27.08.2019 replied as under:-

Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 05.09.2019. The FAA/Additional Advocate General, Haryana vide order dated 14.10.2019 held as under:-

Feeling aggrieved and dissatisfied, the Appellant approached the Commission with the instant Second Appeal.

Facts emerging in Course of Hearing:

The Appellant participated in the hearing through video conference. He stated that the information sought was incorrectly denied by the CPIO/ FAA u/s 8 (1) (e) since it was not a professional communication covered u/s 126 of the Indian Evidence Act nor was it covered u/s 8 (1) (e) of the RTI Act as the forest department never appointed the Advocate General as their counsel/ advocate in case no 7G/08-09 pending before the Hon'ble Environment Court, Faridabad hence no relationship of client and advocate exists between the Advocate General and the forest department. It was further stated that the opinion asked by the forest department from the Advocate General of Haryana was a statutory opinion u/s 321 of the Criminal Procedure Code, 1973 hence it was not a professional communication and only an official communication. He further stated that the FAA failed to appreciate the fact that the information sought is in the larger public interest for prosecuting the offenders who have cheated scores of people including him by constructing and selling shopping mall, commercial buildings, five star hotel, baraat ghar and more than 345 residential apartments on forest land situated at NH-8, Gurugram.

The Respondent remained absent during the hearing despite prior intimation.

Decision:

Having heard the Appellant and on perusal of records, the Commission at the outset does not find merit in the submission of the Appellant that the comments of the Advocate General offered in the instant matter were not professional communication but official communication.

As per Article 165 (2) of the Constitution of India, 1950, "It shall be the duty of the Advocate General to give advice to the Government of the State upon such legal matters, and to perform such other duties of a 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 this Constitution or any other law for the time being in force." In the instant matter, the comments of the Advocate General ought to have been made within the four corners of the above mentioned provision of the Constitution while exercising duties of a legal character implying therefore that the communication made is professional communication exempted from disclosure as per Section 126 of the Evidence Act and Section 8 (1) (e) of the RTI Act. A reference may also be made to the judgment of the Division bench of the Hon'ble High Court of Delhi in Union of India vs Subhash Chandra Aggarwal, LPA No 199/2015 decided on 03.02.2017 wherein it was held that the Attorney General of India acts in a fiduciary capacity with its client i.e., Government of India. The following extracts of the judgment are also relevant to the present matter where information sought is pertaining to the Advocate General of Haryana who acts in a fiduciary capacity with the State Government:

"21. However, it cannot be ignored that the predominant function of the AGI is to give advice upon legal matters, to appear in court as stated, i.e. perform the duties akin to an Advocate/Senior Advocate. The acts which have been noted by the learned Single Judge as not forming part of the duties as an Advocate, namely, that the Supreme court may take action for criminal contempt on a motion made by the AGI or that the AGI is an ex officio member of the Bar Council of India represent a small proportion of the duties of an AGI. Essentially, the function being that akin to anAdvocate of the Government of India, he is in a fiduciary relationship withthe Government of India and cannot put in the public domain his opinions orthe materials forwarded to him by the Government of India."

Hence, no further intervention of the Commission is required in the instant Second Appeal which is disposed off accordingly.

Y. K. Sinha (वाई. के. नसन्हा) Chief Information Commissioner (मुख्य सूचना आयुक्त) Authenticated true copy (अद्विप्रमाद्वणत सत्याद्वपत प्रद्वत) S. K. Chitkara (एस. के. द्विटकारा) Dy. Registrar (उप-पंजीयक) 011-26186535 Page 3 of 3