Whether writ petition is maintainable in high court against administrative decision of information commissioner under RTI?

Mr. Deb submits that in view of the bar contained in Section 23, no Court including the High Court can entertain any proceedings and writ petitions are also proceedings and therefore, no proceedings lie before the High Court against any order of the State Information Commission. The Second limb of his argument is that even if the writ jurisdiction of the High Court is not ousted, the same can only be exercised only when there is complete lack of jurisdiction in the State Information Commissioner and merely because the jurisdiction has been exercised rightly or wrongly is not a ground to interfere in the order of the State Information Commissioner. These arguments have been raised only for the purpose of being rejected. There is no merit whatsoever in the arguments.

As far as the first argument is concerned, it is against the whole concept of the Constitution of India where the rule of law is granted primacy. The right of judicial review is a part of the basic structure of the Constitution and the decision of any authority is subject to judicial review under Article 226 or under Article 32 of the Constitution of India. The law in this regard is absolutely clear.

A Constitution Bench of the Apex Court in L. Chandra Kumar V. Union of India, MANU/SC/0261/1997 : (1997) 3 SCC 261 held as follows:-

"78. ..... ..... ..... ..... ..... ...... ... We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Article 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded.
79. We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all courts and tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided."

One of the cornerstones of our Constitution scheme is that judicial review is part and parcel of the basic structure of the Constitution. Every decision which affects the rights of any party is subject to judicial review. Policy matters may be beyond the scope of judicial review but when any administrative decision affects the rights of the parties then that decision can be challenged though the grounds of challenge may be limited. As far as judicial or quasi judicial authorities are concerned, their judgments and orders are definitely amenable to the writ jurisdiction of this Court. Therefore, we have no hesitation in rejecting the first submission of Mr. Deb that this Court has no jurisdiction in the matter.

IN THE HIGH COURT OF TRIPURA AT AGARTALA

WP(C) 231 of 2010

Decided On: 12.08.2015

Appellants: Dayashis Chakma
Vs.
Respondent: The State Chief Information Commissioner and Ors.

Hon'ble Judges/Coram:Deepak Gupta, C.J. and S.C. Das, J.

Citation;AIR 2016(NOC)255 Tripura

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Whether information commissioner is bound to follow principles of natural justice under RTI proceeding?

Coming to the second argument, as far as the scope of judicial review of administrative action is concerned, the principles in this regard are absolutely clear. One of the first principles laid down is that a person in whom discretion is vested must exercise his discretion upon reasonable grounds. A discretion does not empower a man to do what he likes merely because that is his will-he must exercise the discretion by following a course of reason and he must act reasonably. The rules of natural justice are also to be read into every administrative and judicial action. One of the greatest achievements of the development of the legal jurisprudence in India has been the development of the principles of natural justice and one of the main facets of natural justice is the right to be given a fair hearing. No man should be condemned unheard. Every person whose rights are to be affected has an undeniable right to be heard in the matter.

9. The principles of natural justice have been accepted in our jurisprudence in all administrative and quasi judicial and judicial actions and it is too late in the day for the respondent No. 5 to urge that even violation of these principles is not amenable to writ jurisdiction. From the facts we have narrated above, it is apparent that the State Information Commission did not deem it fit to issue notice to the respondents arrayed before it before condoning the delay. From the records we find that no application filed for condonation of delay but on the date when the matter was taken up by the Commission some fax massage was received and merely on the basis of that fax massage the delay was condoned without even giving the other party a chance of being heard.

10. These are not errors of jurisdiction as is sought to be made out by Mr. Somik Deb. But this is total unreasonableness and violation of the rules of natural justice and no Court can condone such violation of the principles of natural justice. Therefore, we reject the second contention of Mr. Deb and hold that the rules of natural justice have been violated in such a flagrant manner that the decision is amenable to the writ jurisdiction of this Court.

IN THE HIGH COURT OF TRIPURA AT AGARTALA

WP(C) 231 of 2010

Decided On: 12.08.2015

Appellants: Dayashis Chakma
Vs.
Respondent: The State Chief Information Commissioner and Ors.

Hon'ble Judges/Coram:Deepak Gupta, C.J. and S.C. Das, J.

Citation;AIR 2016(NOC)255 Tripura

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Whether information commissioner can direct public authority to preserve information for longer period than provided in rules of public authority?

 For example, in paragraph 54 of the judgment, the Hon'ble Apex Court has observed that the right to access information does not extent beyond the period during which the examining body is expected to retain the answer-books. In the case of CBSE, and in case of University of Pune, the the answer-books are required to be maintained for a period of three months and thereafter they are liable to be disposed of/destroyed. The fact that right to information is available with regard to answer-books does not mean that answer- books will have to be maintained for any longer period than required under the rules and regulations of the public authority. The obligation under the RTI Act is to make available or give access to dss JUDGMENT-WP-310-14 existing information or information which is expected to be preserved or maintained. If the rules and regulations governing the functioning of the respective public authority require preservation of the information for only a limited period, the applicant for information will be entitled to such information only if he seeks the information when it is available with the public authority. The power of Information Commission under Section 19(8) of RTI Act to require public authority to take any such steps as may be necessary to secure compliance with the provisions of the Act, does not include a power to direct the public authority to preserve the information for any period larger than what is provided under the rules and regulations of the public authority. The contention that there is an implied duty on the part of every public authority to maintain the information for a minimum period of twenty years and make it available whenever an application was made in that behalf was rejected, has based on complete misreading and misunderstanding of Section 8(3) of the RTI Act. The period for which any particular records or information has to be maintained would depend upon the relevant statutory rule or regulation of the public authority regarding preservation of records.

Bombay High Court

The University Of Pune, Through ... vs State Of Maharashtra And Ors on 13 March, 2015

Bench: M.S. Sonak

Citation;2015(3) MHLJ 359 Bom

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Whether General power of attorney should be disclosed under RTI?

  

GPA is a public document because the  grantee has to use it to convince any  prospective purchaser and it is also in the interest of that prospective purchaser to verify the veracity of the documents including GPA before finalizing the deal. Because the purpose of  GPA is to authorize another person to deal with the others i.e., to lease out, sale or mortgage  etc, it is an open document and after being registered it is put in public domain, and when  transferred to Delhi Archives, it continued to be in public domain. The RTI Act made it obligatory to disclose any document which is held by public authority unless  exemptions as mentioned in Section 8 are attracted. Assuming that Section 57 Registration Act  1908 authorizes them to deny the access to GPA, which the officers from Sub ­Registrar office are regularly raising as defence, the Commission would like to reiterate that as per section 22 of Right  to Information Act 2005, the 156 year old law has to yield to 2005 law which Parliament wanted to 
override the other laws. The Commission recommends the Respondent Public Authority to inform all the PIOs and officers registering the transactions on landed property to abide by the RTI Act  and   not   to   quote   obsolete   British   relic   Registration   Act,   1908.   As   the   age­old   maxim   says 
ignorance of law is no excuse, the respondent authority cannot plead ignorance of this law any  more as nine years passed after RTI Act came into existence. Any effort to quote British law to 
deny   the   copy   of   GPA   or   any   other   document   which   has   to   be   given   under   RTI   Act   will   be  considered as clever ploy to deny the information and the Commission warns the public authority  that this also will amount to violation of RTI Act attracting the penalties under Section 20 RTI Act. 
The office of PIO should desist from using the archaic law and First Appellate Authority cannot  reject first appeals on this ground. 

CENTRAL INFORMATION COMMISSION

File No.CIC/DS/A/2013/001968­SA


Shri Manish Bansal  Vs Delhi Archives      GNCTD, Delhi

Date of decision : 01-­09-­2014
  Information Commissioner :
Prof. M. Sridhar Acharyulu
(Madabhushi Sridhar)

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