Karnataka High Court
Poornaprajna House Building ... vs Karnataka Information Commission, Sri ... on 30 March, 2007
Equivalent citations: AIR2007KANT136, 2008(1)KARLJ672, AIR 2007 KARNATAKA 136, 2007 (5) ALJ (NOC) 888 (KAR.) = AIR 2007 KARNATAKA 136, 2007 A I H C 2626, 2007 (6) ABR (NOC) 967 (KAR.) = AIR 2007 KARNATAKA 136, 2007 (4) AIR KAR R 518, (2008) 1 KANT LJ 672
Author: S. Abdul Nazeer
Bench: S. Abdul Nazeer
ORDER S. Abdul Nazeer, J.
1. In this case, petitioner has assailed the validity and correctness of the order passed by the first respondent - the Karnataka Information Commission (for short 'the Commission') dated 10.05.2006 in Appeal No. KIC 16 APL 2006 (Annexure 'O') and for certain other reliefs.
2. Petitioner is a Cooperative Society registered under the provisions of the Karnataka Cooperative Societies Act, 1959. The second respondent is a member of the petitioner - Society. He had filed two applications dated 07.11.2005 and 17.11.2005 in Form A under Section 6(1) and 7(1) of the Right to Information Act, 2005 (for short 'RTI Act') seeking certain information and documents pertaining to the functioning of the Society including personal details of its members. The Society rejected the said application by the order dated 06.12.2005. Feeling aggrieved by the said order, the second respondent filed an appeal before the President of the petitioner - Society presuming that he is an appellate authority under Section 19(1) of the RTI Act. The appeal was rejected on the ground that the Society is not a public authority under Section 2(h) of the RTI Act. The 2nd respondent filed a second appeal to the Commission under Section 19(3) of the RTI Act. The Commission has issued notice to the Society and the Society has filed its objections. After hearing the parties, the Commission has passed the impugned order.
3. When the matter came up for orders on 09.06.2005, the learned Additional Government Advocate accepted notice on behalf of respondent Nos. 1 and 3 and emergent notice was issued to respondent No. 2. On 19.07.2006 when the matter was posted again for orders, the learned Additional Government Advocate made a submission that he has no instruction to appear for respondent No. 1 the Commission. Therefore, emergent notice was issued to respondent No. 1. In response to the notice, the Commission has sent a letter addressed to the Registrar of this Court on 07.08.2006 stating that the Commission should not be made a party to the writ petition filed against its orders on the ground that it is not an interested party. The Commission has requested this Court to drop its name from me list of the respondents.
4. Having heard the learned Counsel for the parties, the question that arises for consideration is whether the petitioner is justified in making the 'Commission' as a party (respondent) to this writ petition?
5. Right to Information Act, 2005 is an Act to provide for setting out the practical regime of right to information for the citizens to secure access to information under the Control of Public Authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information commission and State Information Commissions and for matters connected therewith or incidental thereto. Section 15 of the RTI Act provides for constitution of State Information Commission. It consists of State Chief Information Commissioner and such number of State Information Commissioners, not exceeding ten as may be deemed necessary.
6. Powers and functions of the Information Commission are enumerated in Section 18 of the RTI Act Sub-section (3) of Section 18 of the RTI Act states that the Central Information Commission or the State Information Commission while inquiring into the matter under that Section have the same power as are vested in the Civil Court while trying the suit under the Code of Civil Procedure. The said provision is as under:
(3) The Central Information Commission or State Information Commission, as the case may be shall, while inquiring into any matter under this section, have the same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908, in respect of the following matters, namely:
(a) 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;
(b) requiring the discovery and inspection of documents;
(c) receiving evidence on affidavit;
(d) requisitioning any public record or copies thereof from any court or office
(e) issuing summons for examination of witnesses or documents; and
(f) any other matter, which may be prescribed.
7. A second appeal under Sub-section (3) of Section 19 of the RTI Act lies to the 'Commission' against the decision of the Information Commission passed under Sub-section (1) of Section 19 of the Act. It is as under:
(3) A second appeal against the decision under Sub-section (1) shall lie within ninety days from the date on which the decision should have been made or was actually received, with the Central Information Commission or the State Information Commission.
Provided that the Central Information Commission or the State Information Commission, as the case may be, may admit the appeal after the expiry of the period of ninety days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
8. Sub-section (4) of Section 19 of the RTI Act states that if the appeal preferred relates to information of a third party, the Commission shall give a reasonable opportunity of being heard to the third party. Sub-section (5) of Section 19 of the RTI Act states that in any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the State Public Information Officer, who denied the request. Sub-section (6) of Section 19 of the RTI Act prescribes the time limit within which the appeal should be disposed of by the Commission. Sub-section (7) of Section 19 of the RTI Act states that the decision of the Commission shall be binding. Sub-section (8) of Section 19 of the RTI Act states that the Commission has the following powers, namely.
(a) require the public authority to take any such steps as may be necessary to secure compliance with the provisions of this Act, including.-
(i) by providing access to information, if so requested, in a particular form;
(ii) by appointing a Central Public Information Officer or State Public Information Officer, as the case may be;
(iii) by publishing certain information or categories of information;
(iv) by making necessary changes to its practices in relation to the maintenance, management and destruction of records;
(v) by enhancing the provision of training on the right to information for its officials;
(vi) by providing it with an annual report in compliance with Clause (b) of Sub-section (1) of Section 4;
(b) require the public authority to compensate the complainant for any loss or other detriment suffered;
(c) impose any of the penalties provided under this Act;
(d) reject the application.
Similarly, Sub-section (9) of Section 19 of the RTI Act states that the commission shall give notice of its decision including any right of appeal to the complainant and the public authority. Sub-section (10) of Section 19 of the RTI Act states that Commission shall decide the appeal in accordance with the procedure as may be prescribed.
9. Thus, it is clear that the Commission while exercising the power under Section 19(3) of the RTI Act is provided with the judicial powers to deal with the dispute between the parties and determine them on merits fairly and objectively. Judicial power is defined as the power to examine questions submitted for determination with a view to the pronouncement of an authoritative decision as to the rights and liabilities of one or more parties. The Commission is a Tribunal entrusted with the task of adjudicating upon special matters and disputes between the parties. It is clear from the various provisions of RTI Act that the Commission is a tribunal vested with appellate power to decide the appeals. An appeal in legal parlance is held to mean the removal of cause from an inferior subordinate to a superior tribunal or forum in order to test and scrutinise the correctness of the impugned decision.
10. In Associated Cements Companies Ltd. v. B.N. Sharma and Anr. , the Apex Court has held that judicial functions and judicial powers are one of the essential attributes of a sovereign state, and on considerations of policy, the State transfers its judicial functions and powers mainly to the Courts established by the Constitution; but that does not affect the competence of the State, by appropriate measures to transfer a part of the judicial powers and functions to the tribunals by entrusting to them the task of adjudicating upon special matters and disputes between the parties. The basic and the fundamental feature, which is common to both the Courts and Tribunals is that they discharge judicial functions and exercise judicial powers which inherently vest in a sovereign state.
11. It is settled that any authority or body of persons constituted by law or having legal authority to adjudicate upon questions affecting the rights of a subject and enjoined with a duty to act judicially or quasi judicially is amenable to the certiorari jurisdiction of the High Court Similarly, Article 227 of the Constitution confers on every High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction excepting any court or tribunal constituted by or under any law relating to armed forces. Thus, the orders of the Commission are amenable to the jurisdiction of the High Court. But, the question is, whether in a writ in the nature of certiorari filed under Article 226 of the Constitution, the tribunal or authority which had made an order should be impleaded as a party?
12. It is well established that a necessary party is one without whom no order can be made effectively. A party whose interests are directly affected, is a necessary party. A proper party is one in whose absence an effective order can be made, but whose presence is necessary for a complete and final decision on the question involved in the proceedings.
13. Certiorari lies to remove for the purpose of quashing the proceedings of inferior courts of record or other persons or bodies exercising judicial or quasi-judicial functions. Certiorari lies only in respect of judicial or quasi-judicial act as distinguished from an administrative act. A writ of certiorari will be granted to remove the record of proceedings of an inferior tribunal or authority exercising judicial or quasi-judicial acts. It follows that the High Court in exercising its jurisdiction shall also act judicially in disposing of the proceedings before it. In such proceedings, the Tribunal or the authority, which is permitted to transmit the records must be a party, because without giving notice to it, the record of the proceedings cannot be brought to the High Court. It is true that in an appeal against a decree of a subordinate court, the court that passed the decree need not be made a party. But, mere is a distinction between an appeal against a decree of a subordinate court or a writ of certiorari to quash the order of a tribunal or authority. In the former, the proceedings are regulated by the Code of Civil Procedure and the court making the order is directly subordinate to the appellate court and ordinarily acts within its bounds. In the case of a writ petition, a writ of certiorari is issued to quash the order of the tribunal, which is ordinarily outside the appellate or the revisional jurisdiction of the court and the order is set aside on the ground that the tribunal or authority acted without or in excess of jurisdiction. If such a tribunal or authority is not made a party to the writ, it can easily ignore the order of the High Court quashing its order, for, not being a party, it will not be liable to contempt.
14. In Ahmedalli Abdulhusein Kaka and Anr. v. M.D. Lalkaka and Ors. , a Division Bench of Bombay High Court has held that as a rule of practice, whenever a writ is sought challenging the order of the Tribunal, the Tribunal must always be a necessary party to the petition. It has been held as under:
The question that has been raised at the bar is, what is the proper attitude that a Tribunal which is served with a rule in a petition filed should adopt, and what is the proper order for costs that the Court should make. I think we should lay down the rule of practice, that whenever a writ is sought challenging the order of a Tribunal, the Tribunal must always be a necessary party to the petition. It is difficult to understand how under any circumstances the Tribunal would not be a necessary party when the petitioner wants me order of the Tribunal to be quashed or to be called in question. It is equally clear that all parties affected by that order should also be necessary parties to the petition.
(emphasis supplied)
15. In Udit Narain Singh, Malpaharia v. Additional Member, Board of Revenue, Bihar and Anr. , the Apex Court has held as under:
As a writ of certiorari will be granted to remove the record of proceedings of an inferior tribunal or authority exercising judicial or quasi-judicial acts, ex hypothesi it follows that the High Court in exercising its jurisdiction shall also act judicially in disposing of the proceedings before it. It is implicit in such a proceeding that a tribunal or authority which is directed to transmit the records must be a party in the writ proceedings, for, without giving notice to it, the record of proceedings cannot be brought to the High Court. It is said that in an appeal against the decree of a subordinate court, the court that passed the decree need not be made a party and on the same parity of reasoning it is contended that a tribunal need not also be made a party in a writ proceedings. But there is an essential distinction between an appeal against a decree of a subordinate court and a writ or certiorari to quash the order of a tribunal or authority; in the former, the proceedings are regulated by the Code of Civil Procedure and the court making the order is directly subordinate to the appellate court and ordinarily acts within its bounds, though sometimes wrongly or even illegally, but in the case of the latter, writ or certiorari is issued to quash the order of a tribunal which is ordinarily outside the appellate or revisional jurisdiction of the court and the order is set aside on the ground that the tribunal or authority acted without or in excess of jurisdiction. If such a tribunal or authority is not made party to the writ, it can easily ignore the order of the High Court quashing its order, for, not being a party, it will not be liable to contempt. In these circumstances, whoever else is a necessary party or not the authority or tribunal is certainly a necessary party to such a proceedings. In this case, the Board of Revenue and the Commissioner of Excise were rightly made parties in the writ petition.
In Paragraph 12 of the judgment, the Apex Court has categorically held that the tribunal or authority whose order is sought to be quashed is a necessary party. It is held as under:
To summarise, in a writ of certiorari, not only the tribunal or authority whose order is sought to be quashed, but also parties in whose favour the said order is issued are necessary parties. (emphasis supplied)
16. It is no doubt true that the Apex Court in the case of Savitri Devi v. District Judge, Gorakhpur AIR 1999 SC 976 has held that there was no necessity for impleading the Judicial Offices who disposed of the matter in a civil proceedings when the writ petition was filed in the High Court; nor is there any justification for impleading them as parties in the Special Leave Petition and describing them as contesting respondents.
17. The Commission cannot be equated to a civil court. The Commission is neither directly subordinate to the High Court nor its orders are subject to appellate or revisional jurisdiction of the High Court. The Commission is not even under the administrative control of the High Court. Therefore, I am of the view that the Commission is a necessary party to the proceedings because in its absence, an effective order cannot be made. The presence of the Commission is necessary for a complete and final decision on the question involved in the proceedings.
18. In the result, letter of the Commission dated 7.8.2006 seeking deletion of its name from the array of the parties in this writ petition is hereby rejected. I direct the registry to send a copy of this order to the Karnataka Information Commission the first respondent herein forthwith.