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IN THE HIGH COURT OF JUDICATURE AT MADRAS
T.S. SIVAGNANAM, V. BHAVANI SUBBAROYAN, JJ.
Association of St. Christopher's College of Education - Appellant
Versus
State Information Commissioner and Ors. - Respondents
W.A. No. 2277 of 2018 and C.M.P. No. 18181 of 2018
Decided On : 20-03-2019
Civil Procedure Code,1908 - Section 18(3) - Right to Information Act, 2005 - Sections 8(1)(e)(j),11 and 20 - Tamil Nadu Schools Act, 2009 - Section 11 - Tamil Nadu Schools Regulation of Collection of Fees Rules, 2009 - Rules 4,4(4),4(5) - Constitution of India,1950 - Article 14 - Challenge - Connected queries in RTI application - Respondents and for a consequential direction to same respondents to apply provisions of Section 8(1)(e)(j) and Section 11 of Right to Information Act 2005 for connected queries in RTI application filed by third respondent and prosecuted by fourth respondent in respect of appellant-institution - Whether order impugned in writ petition passed by first respondent/State Information Commission is a show cause notice - Whether any approval has been obtained by appellant for accepting donation - Whether information sought for by respondents pertaining to question is liable to be disclosed under provisions of RTI Act - Whether Commission could have issued a direction directing Officials of Education Department to go over to appellant-institution to collect records and furnish same to third respondent - Whether at all there is any larger public interest warrants disclosure of information sought for by information seeker - Held, This Rule gives unbridled un-channeled and unregulated powers to officers and as such poses a perennial threat to very functioning of private schools - Both Section 11 of Act and Rule 4(4) leave matter in entirety to unregulated discretion of authorized officers and District Committee Members - In view of our finding that Section 11 is ultra vires of Article 14 of Constitution corresponding Rule as contained in Rule 4(4) and 4(5) are also liable to be struck off as unconstitutional and violative of Article 14 of Constitution of India - Court find that similar queries were asked by other persons who according to appellant are part of a team of persons who are involved in such applications being filed under RTI Act and third respondent information seeker in this case is one among group - In written submissions filed by appellant a tabulated statement has been given showing that there were such applications made by several persons including third respondent who sought for two other queries as well - Court find there are two writ petitions pending before this Court since year and interim stay has also been granted - This should not have been ignored by Information Commission - Therefore finding of State Information Commission holding appellant guilty in not having answered question to satisfaction of third respondent is without any basis and accordingly same is set aside respondent - Court see no such power conferred on first respondent/Commission and as pointed out by us earlier first respondent/Commission cannot take umbrage under Section 18(3) of RTI Act - A Honble Division Bench of this Court in case of Tamil Nadu Nursery Matriculation and Higher Secondary Schools Association v State of Tamil Nadu considered validity of sub-Clauses of Rule 4 of Tamil Nadu Schools Regulation of Collection of Fees Rules - Court find that Commission has not assigned any reasons as to why such information has to be furnished - In other words Commission has not dealt with objections which were raised by appellant before Commission as to why such information is not required to be furnished - Appellant claimed exemption in terms of Section 8(1)(j) of RTI Act - Writ Appeal Stands Allowed
JUDGMENT :
T.S. Sivagnanam, J.
1. This writ appeal is directed against the order in Writ Petition No. 9984 of 2016, dated 21.08.2018.
2. The appellant filed the said writ petition challenging the proceedings of respondents 1 and 2 dated 18.01.2016 and for a consequential direction to the same respondents to apply the provisions of Section 8(1)(e)(j) and Section 11 of the Right to Information Act, 2005 (hereinafter referred to as “the RTI Act”), for the connected queries in the RTI application filed by the third respondent and prosecuted by the fourth respondent in respect of the appellant-institution.
3. The learned Single Bench opined that the impugned proceedings which was challenged before it was only a show cause notice and accordingly, held that no writ proceedings can be entertained against a show cause notice in a routine manner; judicial review against a show cause notice is clearly limited and intermittent interventions are not preferable when a statutory commission has undertaken the process of conducting enquiry under the provisions of the RTI Act. Accordingly, the Writ Court dismissed the writ petition directing the appellant to respond to the show cause notice issued by the State Information Commission. The correctness of the order is being questioned in this appeal by the appellant/writ petitioner.
4. We have heard Fr. Xavier Arulraj, learned Senior Counsel, assisted by Sr.A. Arul Mary, learned counsel for the appellant; Mr. Niranjan Rajagopalan, learned Standing Counsel for respondents 1 and 2; and Mr. N. Sivaprakash, learned counsel for respondents 3 and 4. The learned counsels have also filed their written submissions which we have considered in great detail.
5. The first issue to be considered is whether the order impugned in the writ petition passed by the first respondent/State Information Commission, dated 18.01.2016 is a show cause notice.
6. The learned Standing Counsel for the Information Commission submitted that proviso to Section 20 of the RTI Act contemplates reasonable opportunity to be given to the Public Information Officer before any penalty is decided to be imposed. Further, it is submitted that it may not be possible in all cases for the Information Commission to record its satisfaction that prima facie there is a case for issuance of show cause notice. Therefore, it is contended that issuance of notice calling for explanation as to why penalty should not be imposed cannot be considered as arbitrary. Further, it is submitted that the order impugned in the writ petition remains as a show cause notice in the strict sense, and if the Public Information Officer issues a satisfying response on consideration of the same, proceedings will always be dropped. Therefore, the first respondent seeks to sustain the order impugned in the writ petition.
7. We have carefully perused the order impugned in the writ petition. On a reading of the said order, it is evidently clear that it is not a show cause notice simpliciter, but it is an order holding that the Public Information Officer is guilty for being proceeded against. The first respondent/State Information Commission has invoked Section 18(3)(b) by directing the District Educational Officer requiring the discovery and inspection of documents and furnish the same to the third respondent who sought for information and the said provision, namely, Section 18(3) gives power to the Central Information Commission or State Information Commission, as the case my be, and shall while inquiring into any matter under the said Section [18(3)], have the same powers as vested in a Civil Court while trying a suit under the Code of Civil Procedure, 1908 in respect of the following procedure:-
(i) Summoning and enforcing the attendance of persons and compel them to give oral or written evidence on oath and to produce the documents or things;
(ii) Requiring the discovery and inspection of documents;
(iii) Receiving evidence on affidavit;
(iv) Requisitioning any public record or copies
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