Saturday, 23 March 2013

Appellate   authority under RTI Act  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


   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
1. Kausa Education & Charitable Trust

V/s.
1. 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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