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2008 (1) GCD 377 (Guj)
Hon’ble Mr. Justice D.N. Patel
Ahmedabad Education Society & Anr. [Ahmedabad]
Versus
The Union of India & Ors.
Special Civil Application No. 23305 of 2007—Decided on 28/11/2007
Whether impugned order passed by State Information Commissioner against third party in violation of principle of natural justice sustainable?
Head Note :
Right to Information Act, 2005 (Central Act 22 of 2005) — Section 11 read with Section 7(7) and Sections 18 to 20 — Civil Procedure Code, 1908 (Central Acts of 1958) — Section 9 — Direction to refund the fees — Order of — Against third party and in violation of natural justice — Sustainability — Finding as to — Looking to the impugned order passed by State Chief Information Commissioner it is apparent that though order has been passed against petitioners but they have not been joined as parties in the proceedings — No notice or summons were issued to the present petitioners — Thus without giving an opportunity of being heard to the petitioners the impugned order has been passed — That apart State Chief Information Commissioner has been clothed with some powers of Civil Court under the Code — But so far as refund of fee is concerned it is a matter to be decided by Civil Court of competent jurisdiction under the Code and State Chief Information Commissioner has no power, jurisdiction and authority under the Act to pass an order of refund of fee — Court therefore, quashed and set aside the impugned order passed by State Chief Information Commissioner.
Held :
The present Respondent No. 4 has preferred a Complaint under Section 18 of the Right to Information Act, 2005. As per Section 18, the complaint can be preferred before the State Information Commission and Chief Information Commissioner can initiate an inquiry and can impose penalty as per Section 20 of the Act, 2005. While holding inquiry, as per Section 18(3) of the Act, 2005, State Chief Information Commissioner has been clothed with powers of the Civil Court under the Code of Civil Procedure, 1908, in respect of summoning and enforcing the attendance of persons and compel them to give oral and written evidence on oath; requiring the discovery and inspection of documents; receiving evidence on affidavit; requisitioning any public record or copies thereof from any Court or office. But so far as refund of fees is concerned, it is a matter to be decided by the Civil Court of competent jurisdiction under Code of Civil Procedure, 1908. State Chief Information Commissioner has no power, jurisdiction and authority under the Act, 2005 to pass an order of refund of the fees and, therefore, the impugned order deserves to be quashed and set aside.
Looking to the impugned order passed by State Chief Information Commissioner, it appears that though the order has been passed against the petitioners, they have not been joined as parties in the proceedings. No notice or summons were issued to the present petitioners. Thus, without giving an opportunity of being heard to the petitioners, the impugned order has been passed and, hence, the order deserves to be quashed and set aside. [Para 5]
Law Laid Down :
Order passed without giving an opportunity of being heard is in violation of principles of natural justice hence cannot be sustained.
Case Law Analysis :
Reliance Industries Limited vs. Gujarat State Information Commission & Ors., AIR 2007 Guj. 203 [Para 2];; Gokalbhai Nanbhai Patel vs. Chief Information Commissioner & Ors., 2007 (3) GLH 352 [Para 2].—Relied on
D.N. Patel, J.—This writ petition has been preferred against the order dated 06.07.2007 passed by State Chief Information Commissioner in Complaint No. 1429 of 2006-07, whereby the petitioners who were not parties before the said authority, are directed to refund the fees under the Right to Information Act, 2005 (hereinafter referred to as “the Act, 2005”). Against this order, third party has preferred the present petition on the ground that the petitioners were not joined as parties in the proceedings before State Chief Information Commissioner and no opportunity of being heard was given and the direction has been given to the petitioners to refund fees to the original applicant i.e. to the present Respondent No. 4, is dehors the provisions of the Act, 2005.
2. Learned Counsel for the petitioners submitted that State Chief Information Commissioner has not properly appreciated the provisions of the Act, 2005 especially Section 11 read with Section 7(7) of the Act nor the authorities below have properly appreciated the judgment delivered by this Court in the case of Reliance Industries Limited vs. Gujarat State Information Commission & Ors. now, reported in AIR 2007 Gujarat 203, as well as against the decision rendered by this Court in the case of Gokalbhai Nanbhai Patel vs. Chief Information Commissioner & Ors. now, reported in 2007 (3) GLH 352. It is also submitted by learned Counsel for the petitioners that there is no power, jurisdiction and authority with the State Chief Information Commissioner to pass an order of refund of fees especially when an application is preferred under Section 18 of the Act, 2005. He has also narrated the scope of power, jurisdiction and authority under Sections 18 and 19 of the Act, 2005. At length, reliance has been placed upon the decisions rendered by this Court as stated hereinabove and pointed out that without giving an opportunity of being heard to the petitioners, State Chief Information Commissioner has passed an order in respect of third party i.e. present petitioners, which is totally in defiance of the provisions of the Act, 2005, and, hence, the order passed by State Chief Information Commissioner deserves to be quashed and set aside. The question about refund is a civil dispute and, therefore, this right can be settled under Section 9 of Code of Civil Procedure, 1907 by competent Civil Court and not under the Right to Information Act, 2005. This aspect of the matter has not been appreciated by the State Chief Information Commissioner.
3. Learned Counsel for Respondent Nos. 2 and 3 submitted that it is a fact that the present petitioners are not heard. Nonetheless, looking to the resolution passed by Gujarat University dated 20.05.2006, the fees was ordered to be refunded as the per the impugned order and the petitioners are running the college and are bound by the resolution passed by Gujarat University.
4. Respondent No. 4 has refused to accept the notice.
5. Having heard the learned Counsel for both the sides and looking to the facts and circumstances of the case, the order dated 6.07.2007 passed by State Chief Information Commissioner in Complaint No. 1429 of 2006-07 (Annexure “G” to the memo of the petition) deserves to be quashed and set aside, for the following facts and reasons:
(i) It appears from the facts of the case that the present Respondent No. 4 has preferred a Complaint under Section 18 of the Right to Information Act, 2005. As per Section 18, the complaint can be preferred before the State Information Commission and Chief Information Commissioner can initiate an inquiry and can impose penalty as per Section 20 of the Act, 2005. While holding inquiry, as per Section 18(3) of the Act, 2005, State Chief Information Commissioner has been clothed with powers of the Civil Court under the Code of Civil Procedure, 1908, in respect of summoning and enforcing the attendance of persons and compel them to give oral and written evidence on oath; requiring the discovery and i
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