In paragraph 44, this Full Bench of Delhi High Court,
from the preamble of the RTI Act, also notes that it is passed
because 'democracy requires an informed citizenry and
transparency of information which are vital to its functioning and
also to contain corruption and hold Governments and their
instrumentalities accountable to the governed'. It restricts the
right to information to citizens vide Section 3. Citizen seeking
information need not give any reasons for such
information need not give any reasons for such demand & there
is no requirement of scrutiny into his locus standi. I find that
when the procedure to exercise the right to information is
statutorily prescribed & its breach is to be redressed exclusively
by the “forums” created thereunder, the “execution” of such
adjudicated entitlement against unwilling establishment by
invoking all available legal avenues is the deliberate measure &
an integral part of the scheme of RTI Act
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3650 OF 2012
Kausa Education & Charitable Trust V/s. Maharashtra State Information Commission,
CORAM : B.P. DHARMADHIKARI, J.
PRONOUNCED ON : 8th JANUARY 2013.
Heard. By consent of parties, rule is made returnable
forthwith.
2. By this petition filed under Articles 226 and 227 of
the Constitution of India, petitioner No.1 an educational trust
through its school; one of its trustees; and Head Mistress of that
school have together questioned the order dated 5th May 2011
passed by the appellate authority in first appeal under the Right
to Information Act, 2005 (hereinafter referred to as “RTI Act” for
short) and the latter order dated 10th February 2012 passed in
further appeal by the State Information Commissioner.
3. The petitioners have pointed out the accepted
position that the school run by the Trust is private unaided one
and, therefore, it is not public authority to which provisions of
RTI Act are applicable. The authorities have answered this issue
in its favour and its concurrent findings have not been
questioned by the respondent who sought information. The
appellate authority, however, in the impugned order directed
Education Officer (Secondary) to gather the information from
the petitioners and to supply it to respondent No.5, an ex
employee of the petitioners. Thus, what could not have been
done directly is sought to be achieved indirectly, thereby the
powers or jurisdiction under the RTI Act are being exceeded &
legal rights of the petitioner are violated. Learned counsel for
the petitioners submits that the Head Mistress of the school had
received a witness summons from the State Commission and,
accordingly, she had appeared on 20th September 2011.
Hearing, however, was conducted on 16th December 2011 and,
on that day, the petitioners were absent as no notice was issued
to them of any such hearing. Leaned counsel urges thus, that
the said order passed by the State Information Commissioner i.e.
respondent No.1 in the present matter is without any opportunity
and, therefore, in breach of principles of natural justice. He
submits that the information directed is in relation to “third
party” and is to be gathered also from a third party as defined in
section 2(n) of RTI Act. The procedure as prescribed in section
11 of the RTI Act for that purpose has not been followed and on
this count also the impugned order is unsustainable.
4. The provisions of section 2(n) defining “information”
are read out to contend that its sweep is wide but then its impact
is curtailed because of a narrower concept of “right to
information” contained in section 2(g) thereof. This aspect has
been totally lost sight of by the authorities. Powers of State
Information Commissioner as laid down in section 19(8) are also
relied upon with submission that those powers do not envisage
capacity to give direction to other authorities to take recourse to
other enactments to coerce the petitioners to supply the
necessary information. The direction by respondent No.1 to
Education Officer that he should use his powers under the
Maharashtra Employees of Private Schools (Conditions of
Service) Regulation Act, 1977 (hereinafter referred to as “1977
Act”) is, therefore, urged to be without jurisdiction. By way of
abundant precaution and in the alternative, it is added that
entire information available with the petitioners has already been
supplied to respondent No.5 employee. The information which
is not available cannot be asked to be supplied under the RTI Act.
Respondent No.5 is a dismissed employee who approached the
School Tribunal in an appeal under section 9 of 1977 Act and
claimed various documents/ information only to harass the
present petitioners. Attention is also invited to the applications
moved by him for the said purpose to show its illusive or vague
nature. Learned counsel, in this background, prayed for
allowing of petition.
5. The learned counsel appearing for respondent No.5
has, at the outset, stated that application seeking information
dated 7th April 2011 moved by said respondent and filed at “Exh.
N” with this writ petition is not being pressed. Respondent No.5
needed copy of the approval given to his employment by the
Education Officer and, accordingly, by his first application dated
13th December 2010 the same was sought. Other relevant
information to prosecute his grievance was sought for on 28th
December 2010 from the Education Officer. Said information
has still not been supplied and hence, respondent No.1 has
rightly allowed the appeal. The information sought for is
accessible by the Education Officer and, accordingly, a correct
direction has been issued by that authority. The very same legal
provisions pressed into service by the petitioners are relied upon
to support that exercise. Unreported judgment of the
Uttaranchal High Court in Writ Petition No.809/2010 dated 3rd
June 2010 (Anuj Public School v. State Information
Commissioner) is also relied upon to support the impugned
order. Learned counsel submits that the Appeal adjudicating
authority has been empowered to ensure steps necessary to
effectively implement RTI Act & ask the Education Officer to
access/call requisite information with petitioners or to provide
the same to it and then Education Officer is duty bound to supply
it to the present respondent No.5.
6. It is urged that purpose for which information is
sought is not decisive or relevant in the present matter but it is
pointed out that respondent No.5 has succeeded in his appeal
before the School Tribunal and his dismissal has been set aside.
Learned counsel further contends that the petitioners were aware
of the date of hearing and hence there is no question of violation
of principles of natural justice. Prayer, therefore, is to dismiss
the writ petition.
7. Thus, before this Court, the finding that provisions of
RTI Act do not apply to the petitioner establishment is not in
dispute. The contention that respondent No.1, by directing the
Education Officer (Secondary) to procure information from the
petitioners and then to supply it to respondent No.5, has done
something which is prohibited by RTI Act and the other
contention about denial of opportunity of hearing by said
respondent are, therefore, to be evaluated. Rival contention
about need of adherence to S. 11 relating to the “third party”
procedure for procuring the information from these petitioners or
any of them may deserve a look dependent upon the answer to
this exercise. However, if provisions of S. 19 of RTI Act are held
insufficient to clothe the appellate authority with power to issue
the directions of nature / type as in present case, the complaint
of breach of principles of natural justice by petitioner, may not
assume much importance. Respective Counsel, therefore have
addressed this Court at some length in that regard. If the said
authorities are found not to possess such powers, then only other
grievances as raised do not survive. Further course of action to be
adopted by this Court therefore depends upon scope of S. 19(8)
which calls for determination first.
8. The order of respondent No.1 dated 10th February
2012 assailed in this petition is in Marathi. This order in its last
but one paragraph shows that the appellate authority has relied
upon the order dated 5th May 2011 issued by respondent No.4
Chief Commissioner of Information and directed respondent
No.3 Education Officer to use the provisions of 1977 Act to seek
information from the petitioners and then to pass it on to
respondent No.5. The petitioner's translation of this direction in
English and use of words “Education Inspector (Secondary)” in
it is, therefore, not correct. The words should have been
“Education Officer (Secondary)”. The provisions of section 19 of
the RTI Act deal with appeals; and the powers of State
Information Commissioner while deciding said appeals are
prescribed in subsection (8) clause (a). This subsection
enables the State Information Commissioner to require the public
authority to take any such steps as may be necessary to secure
compliance with the provisions of RTI Act. Subclause (i) then
permits the said authority to achieve very same goal by providing
access to information in a particular form. Main clause (a) is
“general” in nature & ends with words “include”. Its subclauses
(i) to (vi) show the mention of specific powers or steps which
may be taken. Thus, this placement & arrangement reveals the
legislative mandate that powers later specified in subclauses are
not designed to restrict the wide field kept deliberately open for
the appellate forums and not to encroach upon the general
power to issue various types of directions under main clause. The
stipulation of specific powers is without prejudice to generality of
vast power conferred by S.19(8)(a) i.e. main clause. There is no
reason to cut down sweep of this procedure aimed at effective
implementation as it militates with its completeness within the
RTI Act envisaged & achieved through overriding effect in S. 22
& bar of jurisdiction of civil court in S.23. All the steps/measures
required to be adopted for achieving the purpose, object of &
compliance with RTI Act, are therefore, open & permitted, and
the appellate authority can issue direction to such public
authority to take any of those steps as are suitable to coerce the
persons having information to abide by directions issued under
the RTI Act. Said steps giving teeth to it & intended at making
the law effective, therefore, may include a direction to use other
powers available to such public authority i.e. conferred upon it
under any other law like 1977 Act. The Education Officer
(Secondary) is a public authority and has acted as first appeal
authority also in the present matter. Statutorily, it is associated
with administration and functioning of all recognized and
approved schools due to & in accordance with the provisions of
1977 Act as also Secondary School Code. It has got various
powers to monitor the functioning and standard of education in
terms of these statutory instruments. For that purpose it can
access the records of the petitioners. Here, overriding effect given
to RTI Act vide its S. 22 also assumes significance. Hence, a
direction by respondent No.1 in its order dated 10th February
2012 to respondent No.2 to use any of those powers for
procuring information from the petitioners cannot be viewed as
excessive. The contention that what is directly prohibited has
been achieved indirectly through such a direction or course of
action is, therefore, misconceived and unsustainable.
9. Full Bench of the Delhi High Court in AIR 2010 Delhi
159 "Secretary General, Supreme Court of India v. Subhash
Chandra Agarwal" has observed:
“60. The decisions cited by the learned Attorney
General on the meaning of the words 'held' or 'control'
are relating to property and cannot be relied upon in
interpretation of the provisions of the Right to
Information Act. The source of right to information
does not emanate from the Right to Information Act. It
is a right that emerges from the constitutional
guarantees under Article 19(1)(a) as held by the
Supreme Court in a catena of decisions. The Right to
Information Act is not repository of the right to
information. Its repository is the constitutional rights
guaranteed under Article 19(1)(a). The Act is merely
an instrument that lays down statutory procedure in
the exercise of this right. Its overreaching purpose is to
facilitate democracy by helping to ensure that citizens
have the information required to participate
meaningfully in the democratic process and to help the
governors accountable to the governed. In construing
such a statute, the Court ought to give to it the widest
operation which its language will permit. The Court
will also not readily read words which are not there
and introduction of which will restrict the rights of
citizens for whose benefit the statute is intended.
61. The words 'held by' or 'under the control of under
Section 2(j) will include not only information under the
legal control of the public authority but also all such
information which is otherwise received or used or
consciously retained by the public authority in the
course of its functions and its official capacity. There
are any number of examples where there is no legal
obligation to provide information to public authorities,
but where such information is provided, the same
would be accessible under the Act. For example,
registration of births, deaths, marriages, applications
for election photo identity cards, ration cards, pan
cards etc. The interpretation of the word 'held'
suggested by the learned Attorney General, if accepted,
would render the right to information totally
ineffective.”
10. In paragraph 44, this Full Bench of Delhi High Court,
from the preamble of the RTI Act, also notes that it is passed
because 'democracy requires an informed citizenry and
transparency of information which are vital to its functioning and
also to contain corruption and hold Governments and their
instrumentalities accountable to the governed'. It restricts the
right to information to citizens vide Section 3. Citizen seeking
information need not give any reasons for such demand & there
is no requirement of scrutiny into his locus standi. I find that
when the procedure to exercise the right to information is
statutorily prescribed & its breach is to be redressed exclusively
by the “forums” created thereunder, the “execution” of such
adjudicated entitlement against unwilling establishment by
invoking all available legal avenues is the deliberate measure &
an integral part of the scheme of RTI Act.
11. The learned counsel for the petitioners has also urged
that though definition of “information” as contained in section
2(f) is comparatively wide, that scope is curtailed when RTI Act
confers upon the persons like respondent No.5 right to
information. He has urged that section 2(j) defining this phrase
“right to information” is intended at controlling and narrowing
wide sweep of section 2(f). Similarly, the petitioners are
claiming themselves to be a third party as defined in section 2(l)
of RTI Act. None of these contentions are addressed to by
respondent No.1. Perusal of impugned appellate judgment
shows that Head Mistress working with petitioners i.e. petitioner
No.3 had appeared before respondent No.1 on 20th September
2011 for giving evidence of the action taken on applications of
respondent No.5. Hearing took place on 16th October 2011 and
the impugned order records that on that day present respondent
No.5 (appellant) was only present. This position has not been
seriously disputed by respondent No.5. Respondent No.5 has
not pointed out that there was any other notice or intimation to
the petitioners to remain present for hearing on 16th October
2011. The submission of petitioners that out of documents
demanded by respondent No.5 vide his two applications,
available documents or information have been already supplied
and remaining material is not available with it, therefore, does
not find any consideration by respondent No.1. Issue whether
copy of approval order sought for on 13th December 2010 by
respondent No.5 is available with the petitioners or then, it is
available with authorities granting approval i.e. respondent No.2,
therefore, need not be looked into by this Court. Similarly, on
28th December 2012, respondent No.5 has demanded total nine
documents or information & respondent 5 has stated that the
information or documents in relation to serial Nos.1, 2, 3, 7, 8
and 9 are still not received by him. Whether this information or
document/s is available with the petitioners or not can also be
looked into by respondent No.1 after extending them an
opportunity of hearing. It is not necessary for this Court to
pronounce on it as petitioners have not been given necessary
opportunity of hearing before passing of impugned order.
12. Perusal of judgment of Uttaranchal High Court in
Anuj Public School vs. State Information Commissioner
(supra) reveals that the learned single Judge has issued direction
to the petitioners therein to give information not covered under
section 8 of the RTI Act within two weeks. This judgment also
considers situation of private institutes in the light of section 11
of the RTI Act. Its bearing in the matter, if any; can be pointed
out by the parties to respondent No.1.
13. In the light of this discussion, it is held that the
impugned order to the extent indicated above passed without
hearing the petitioners is unsustainable. The said order dated
10th February 2012 is, accordingly, quashed and set aside. The
proceedings in Appeal No. KR1323/2011 are restored back to
the file of respondent No.1 for fresh hearing and consideration.
Petitioners as also respondent No.5 are directed to appear before
respondent No.1 on 12th February 2013 and to abide by its
further instructions in the matter. The said authority shall
attempt to decide the appeal finally as early as possible.
14. Petition is, thus, partly allowed and disposed of. No
costs.
(B.P. DHARMADHIKARI, J.)
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