Reserved
Writ
Petition No.8464 (M/B) of 2007.
Brij
Bhushan Dubey
... Petitioner
v.
State
Information Commission and others ... Opp.Parties
----------------
Hon'ble U.K. Dhaon,J.
Hon'ble S.S. Chauhan, J.
Heard Sri Chandra Bhanu Pandey, learned
counsel for the petitioner.
The petitioner has filed the instant
writ petition against the order dated 15.10.2007 passed by the Chief
Information Commissioner, U.P., Lucknow whereby the complaint preferred by the
petitioner has been dismissed being not maintainable under the provisions of
the Right to Information Act, 2005.
The brief facts as alleged in the
writ petition are that in the month of March 2007, an advertisement was
telecast in electronic channels in which Sri Amitabh Bachchan, a renowned actor
and the then Member of U.P. Development Council
and also a Brand Ambassador for State of U.P. was being shown as saying
the following:
“tqeZ ns'k
esa dgkWaaa&dgkWa gS] dkSu Åij dkSu uhps gS A dsUnz fjiksVZ dgrh gS] ;w0ih0
cgqrksa ls ihNs gS A ;w0ih0 esa ne gS] D;ksafd ;gkWa tqeZ de gS A”
The petitioner has further alleged
that on 30.03.2007, the petitioner made a request to Sri Amitabh Bachchan for
certain information under Section 6 of the Right to Information Act, 2005
(hereinafter referred to as the Act) and
since the information was not provided to the petitioner within thirty days
from the date of receipt of the application, the petitioner made a complaint
under Section 18 of the Act before the
Sate Information Commission. The Commission on 26.9.2007 sent a notice to
opposite party no.3-Sri Amitabh Bacchan.
Sri Pradeep Kumar, Advocate, under the instructions of his client Sri Amitabh Bachchan sent reply to the Secretary, Uttar Pradesh
Information Commission, Lucknow, U.P.
The Chief Information Commissioner, after considering the material on
record by the impugned order dated 15.10.2007 held that the provisions of Right
to Information Act, 2005 are not applicable to Sri Amitabh Bachchan in respect
to the alleged publication.
The learned counsel for the
petitioner submitted that the fax message sent by Sri Pradeep Kumar, Advocate,
on behalf of Sri Amitabh Bachchan is not in conformity with the order dated
26.9.2007 passed by the U.P. State Information Commission, Lucknow, U.P. He further submitted that by the impugned
order, opposite party no.2 in a most arbitrary and illegal manner has held that
the provisions of the Act are not applicable upon the opposite party no.3
regarding the alleged advertisement. He
further submitted that it is the settled principle of law that an authority
which has been given power to discharge his function in a particular manner
should discharge the same in that manner but the opposite party no.2 has passed
the impugned order in clear disregard to the earlier order dated
26.9.2007. Learned counsel for the
petitioner has relied upon the decision of this Court in the case of Satish
Kumar v. State of U.P. and others, reported in 2006 (4) ESC page 2786
(All) (DB).
We have considered the submissions
made by the learned counsel for the petitioner and gone through the record.
The petitioner has alleged that in
the month of March 2007 , an advertisement was telecast in electronic channels, in which Sri Amitabh
Bacchan, a renowned actor and then Member of U.P. Development Council and also
Brand Ambassador for State of U.P. was being shown as saying the following:
“tqeZ ns'k
esa dgkWaaa&dgkWa gS] dkSu Åij dkSu uhps gS A dsUnz fjiksVZ dgrh gS] ;w0ih0
cgqrksa ls ihNs gS A ;w0ih0 esa ne gS] D;ksafd ;gkWa tqeZ de gS A”
The petitioner has alleged that on
30.03.2007, he sought some information from Sri Amitabh Bachchan under Section
6 of the Act but the same was not provided to him within thirty days from the
date of receipt of the application, thereafter he filed a compliant under
Section 18 of the Act before the State Information Commission, Lucknow,
U.P. On the said complaint made by the
petitioner a notice was sent to opposite party no.3 who sent reply dated
10.10.2007 through his counsel Sri Pradeep Kumar, Advocate, Supreme Court of
India. In the reply, it was stated by
opposite party no.3 through his counsel that he was not served with any letter
or notice sent by the petitioner. In the
reply, it has been stated that Sri Amitabh Bachchan was an honorary Member of
the Uttar Pradesh Development Corporation and a Brand Ambassador of the State
of Uttar Pradesh and he had not availed any facilities or financial assistance
attached to those posts and served the State to the best of his abilities.
Some of the provisions, which are
relevant for the disposal of the instant writ petition are as under:
Section 2-(h) defines Public
Authority.
“public Authority” means any authority or body or
institution of self-government
established or constituted,-
(a) by or under the constitution,
(b) by any other law made by Parliament,
(c) by any other law made by State Legislature,
(d) by notification issued or order made by the appropriate
Government, and includes any-
(i) body owned,
controlled or substantially financed,
(ii) non-Government Organisation substantially financed,
directly or indirectly by funds provided
by the appropriate Government;
Section 2-(j)defines Right to Information.
“right to information” means the right to information
accessible under this Act which is held by or under the control of any public
authority and includes the right to-
(i) inspection of work, documents, records,
(ii) taking notes, extracts, or certified copies of
documents or records,
(iii)taking certified samples of material,
(iv)obtaining information in the form of diskettes,
floppies, tapes, video cassettes
or in any other electronic mode or through printouts where such information is stored in a computer
or in any other device;”
Section 11 of the Act deals with third party information
which is as under:
“Third party information-(1) Where a Central
Public Information Officer or a
State Public Information Officer, as the case may be, intends to disclose any Information
or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party
and has been treated as
confidential by that third party, the Central Public Information Officer or State Public Information
Officer, as the case may be, shall, within five
days from the receipt of the request, give a written notice to such third party of the request and of the fact that the
Central Public Information Officer
or State Public Information Officer, as the case may be, intends to disclose the information or record, or part
thereof, and invite the third party to
make a submission in writing or orally, regarding whether the information should be disclosed, and such submission
of the third party shall be kept in view
while taking a decision about disclosure of information:
Provided that except in the case of trade or commercial
secret protected by law,
discloser may be allowed if the public interest in discloser outweighs in importance any possible harm or
injury to the interest of such third party.
(2) Where a notice is
served by the Central Public Information officer or State Public Information
Officer, as the case may be, under sub-section (1) to a third party in respect
of any information or record or part thereof, the third party shall, within ten
days from the date of receipt of such notice, we given the opportunity to make
representation against the proposed disclosure.
(3) Notwithstanding
anything contained in section 7, the Central Public Information Officer or
State Public Information Officer, as the case may be, shall, within forty days
after receipt of the request under section 6, if the third party has been given
an opportunity to make representation under sub section (2), make a decision as
to whether or not to disclose the Information or record or part thereof and
give in writing the notice of his decision to the third party.
(4) A notice given
under sub section (3) shall include a statement that the third party to whom
the notice is given is entitled to prefer an appeal under section 19 against
the decision.”
From the
perusal of the aforesaid provisions, it is evident that information can be
sought only from the public authority under the Right to Information Act,
2005. In the reply submitted on behalf
opposite party no.3, it has been stated that the advertisement which was
telecast at the time when the Model Code of Conduct was in force in the State of Uttar Pradesh
and the Election Commission permitted the same.
It has also been stated in the reply that Sri Amitabh Bachchan had
merely acted in the advertisement without accepting any payment as he was a Brand Ambassador of Uttar Pradesh. It has also been stated in the reply dated
10.10.2007, a copy of which has been annexed as Annexure-5 to the writ petition
that Sri Amitabh Bachchan was an honorary Member of the Uttar Pradesh
Development Corporation and a Brand Ambassador of the State of U.P. and he had
not availed any facilities attached to those posts. The petitioner has nowhere stated that for
the alleged advertisement, the opposite party no.3-Sri Amitabh Bachchan was
financed by the State Government directly or indirectly. The State Chief Information Commissioner,
Lucknow, U.P. , by the impugned order has held that the provisions of the Right
to Information Act, 2005 in respect to the alleged advertisement are not
applicable to opposite party no.3.
There is no illegality or infirmity
in the impugned judgment and order dated 15.10.2007 passed by the Chief
Information Commissioner, U.P., Lucknow.
The writ petition is devoid of merits.
It is accordingly dismissed at the admission stage.
Dt:27.11.2007.
sks
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