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2013 Supreme(Bom) 42
High Court of Judicature at Bombay
B.P. DHARMADHIKARI
Kausa Education & Charitable Trust & Others
Versus
Maharashtra State Information Commission & Others
Writ Petition No. 3650 of 2012
Decided on : 08-01-2013
For the Petitioners:Gaurav Joshi, Murtaza Federal, Shrinivas Bobde, instructed by M/s Federal & Rashmikant, Advocates.
For the Respondents:R1, Dhananjay B. Lonkar, R2 & R3, Ms. M.S. Bane, “B” Panel counsel, R5, Ms. Deepali Deherkar, Advocate.
Headnote:RIGHT TO INFORMATION ACT, 2005 - Sections 2(n), 11 and 19(8) - MEPs Regulation Act, 1977, Section 9 - Powers of State Information Commissioner in appeal.
Appellate Authority, State Information Commissioner has power under Section 19(8)(a) of Act, 2005 to require public authority to take any such steps as may be necessary to secure compliance with provision of RTI Act. - 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 sub- section (8) clause (a). This sub-section 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. Sub-clause (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 and ends with words "include". Its sub- clauses (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 sub- clauses 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 Section 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 and achieved through overriding effect in Section 22 and bar of jurisdiction of Civil Court in Section 23. All the steps/measures required to be adopted for achieving the purpose, object of & compliance with RTI Act, are therefore, open and 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 and 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 and 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 Section 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.
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.
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, KR-1323/2011 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.
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.1an 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 exemployee 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.5employee. 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 approv
