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2012 Supreme(Gau) 962
IN THE HIGH COURT OF GAUHATI (SHILLONG BENCH)
Subhasis Talapatra, J.
Chief Electoral Officer & Anr. – Appellants
Vs.
Chief Information Commissioner, Meghalaya Information Commission & Anr. – Respondent
W.P. (C) No. 272 (SH) of 2009
Decided On: 10.08.2012
For Appellant/Petitioner/Plaintiff:Mr. H.S. Thangkhiew, Sr. Advocate, Mr. L. Khyriem, Advocate, Mr. P. Nongbri & Mr. N. Mozika
For Respondents/Defendant: Mr. S.R. Sen & Mr. E. Nongbri
Headnote:
Constitution of India, 1950 - Articles 226, 324 and 329 - Right to Information Act, 2005 - Sections 19, 22, 18, 4, 2, 8 and 9 - Representation of Peoples Act, 1951 - Section 100 - Conduct of Election Rules, 1961 – Section 83 - Indian Trust Act, 1882 - Section 88 – Election Rules - Confidential Relation - Petition seeking disclosure by furnishing photocopies of Form 17A utilized during Parliamentary Election for polling stations in District as per list attached to said petition and to furnish a list of registered Polling Agents set up by contesting candidates for Shillong-1 Parliamentary Constituency during said Election a copy of said petition was forwarded to Election Commission of India by a letter under Memo seeking appropriate direction from said Election Commission - In response to said letter Election Commission of India in short directed writ petitioner No - 1 by their letter that provision of Conduct of Election Rules is amply clear and explicit Form 17A cannot be opened except under order of a competent Court - Further with regard to list of Polling Agents there is no such restriction on supply of list of Polling Agents as it is not covered by said rule - In accordance with direction as contained in letter writ petitioner No - 2 disclosed information in form of a list of Polling Agents to respondent No - 2 as per requisition by a forwarding letter - Held, There is a technical distinction between a fiducial relation which is more correctly applicable to legal relationships between parties such as guardian and ward administrator and heirs and other similar relationships and confidential relation which includes legal relationships and also every other relationship wherein confidence is rightly reposed and is exercised - Generally term fiduciary applies to any person who occupies a position of peculiar confidence towards another - It refers to integrity and fidelity - It contemplates fair dealing and good faith rather than legal obligation as-basis of transaction term includes those informal relations which exist whenever one party trusts and relies upon another as well as technical fiduciary relations - A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence - Distinguishing obligation of a fiduciary is obligation of loyalty - A fiduciary must act in good faith he must not make a profit out of his trust he must not place himself in a position where his duty and his interest may conflict he may not act for his own benefit or benefit of a third person without informed consent of his principal - Writ petition stands allowed.
Subhasis Talapatra, J.
1. By order dated 14.09.2009 passed in Appeal No. MIC/Appeal/67/2009/43 by the Meghalaya Information Commission, hereinafter the Commission in short directed the Joint Chief Electoral Officer, Meghalaya, Shillong, the Public Information Officer to disclose the information sought by Mr. John F. Kharshiing, appellant in the proceeding before the Commission and respondent No. 2 herein by furnishing photocopies of Form 17A (voters registers) utilized during the Lok Sabha Election, 2009 for 96 polling stations in Jaintia Hills District as per list furnished by the respondent No. 2 within a period of 20(twenty) days from the date of the order with intimation to the Commission. Being aggrieved by the said order dated 14.09.2009 (Annexure-7 to the writ petition) the Chief Electoral Officer, Meghalaya, Shillong, petitioner No. 1 and the Joint Chief Electoral Officer, Meghalaya, Shillong, the petitioner No. 2 filed this petition under Article 226 of the Constitution of India seeking judicial review of the said order. This Court by order dated 30.09.2009 passed in Misc. Case No. 435(SH) of 2009 suspended the operation of the impugned order dated 14.09.2009 till disposal of the petition.
2. Genesis of the case is noted:
The petition dated 05.06.2009(Annexure-2 to the writ petition) seeking disclosure by furnishing photocopies of Form 17A (voters registers) utilized during the Parliamentary (Lok Sabha) Election, 2009 for the 96 polling stations in Jaintia Hills District as per the list attached to the said petition at Annexures 1 and 2 and to furnish a list of registered Polling Agents set up by the contesting candidates for the Shillong-1 Parliamentary Constituency during said Election, 2009, a copy of the said petition (Annexure-2) was forwarded to the Election Commission of India by a letter under Memo No. EL.87/2006/258-A dated 09.06.2009 seeking appropriate direction from the said Election Commission. In response to the said letter dated 09.06.2003 (Annexure-3 to the writ petition) the Election Commission of India, the Election Commission in short directed the writ petitioner No. 1 by their letter No. 30/MEG/2009/4043 dated 06.07.2009 that the provision under Rule 93 of the Conduct of Election Rules, 1961 is amply clear and explicit Form 17A cannot be opened except under the order of a competent Court. Further, with regard to the list of Polling Agents, there is no such restriction on the supply of list of Polling Agents as it is not covered by the said rule. In accordance with the direction as contained in the letter dated 06.07.2009 (Annexure-4 to the writ petition), the writ petitioner No. 2 disclosed the information in the form of a list of Polling Agents to the respondent No. 2 as per the requisition by a forwarding letter under No. EL.87/2006/459 dated 15.07.2009 (Annexure-5 to the writ petition). The respondent No. 2 as it appears from the impugned order dated 14.09.2009 preferred an appeal under Section 19(1) of the Right to Information Act, 2005 before the first appellate authority, the Chief Electoral Officer, Government of Meghalaya, the writ petitioner No. 1 herein. On 20.07.2009 the said First Appellate Authority by the order No. EL.87/2006/471 dated 28.07.2009 affirmed the decision of the Public Information Officer i.e. writ petitioner No. 2 herein.
3. As consequent upon the said decision of the first appellate authority dated 28.07.2009, the respondent No. 2 filed a second appeal under Section 19(2) of the Right to Information Act, 2005, in the Commission challenging the said decisions of the Public Information Officer and the first appellate authority stating that the said orders have been passed in contrast to the provisions of Section 22 of the Right to Information Act, hereinafter RTI Act The Commission asked in the statement from the Public Information Officer and the first appellate authority as to why the impugned orders would not be set aside and a penalty at the rate of Rs.250/- per d
