Central Information Commission
Shri D.N. Loharuka vs High Court Of Judicature At Mumbai on 13 March, 2009
CENTRAL INFORMATION COMMISSION
.....
F.No.CIC/AT/A/2008/01137
Dated, the 13th March, 2009.
Appellant : Shri D.N. Loharuka
Respondents : High Court of Judicature at Mumbai
FACTS OF THE CASE:
The appellant submitted an application under the RTI Act, 2005 to the Public Information Officer (PIO) of the High Court of Judicature at Bombay on 16.04.2008 seeking 11 items of information which, inter-alia, included ⎯
(i) status about letter sent to the High Court by Speed Post No.EE-
176452405 IN dated 23.3.2006; and
(ii) queries as to under what provisions of the criminal Law/Act and for want reasons, certain relief were granted to accused persons in criminal Writ Petition Nos.735, 737 and 736 of 2004;
(iii) the basis of promotion and posting of Shri S.B. Shukre, 4th ASJ Nagpur to the post of Additional Registrar of the Bombay High Court.
2. The PIO, in his reply dated 22.05.2008, informed the appellant that information pertaining to Item No.1 was not available with the Public Authority whereas the other information contained in Item Nos.2 to Item No.11 do not come within the purview of the Right to Information Act.
3. Appellant submitted an appeal before the First Appellate Authority on 27.05.2008 stating that the reply furnished by the PIO was unsatisfactory. The appellant further averred in his appeal that the right to information has wide scope and that a citizen has a right to seek information on all such aspects where action has been taken in disregard of legal provisions. The appellant also submitted that he has already submitted documentary evidence in support of such frauds and cheatings before the High Court.
4. When the appellant did not receive any reply from the First Appellate Authority within the time prescribed, he submitted second-appeal before this Commission on 08.08.2008. He submitted that this is a case of "deemed refusal"
AT-13032009-07.doc Page 1 of 6 of the first-appeal and prayed that the Commission should pass appropriate orders for providing information with correct proposition of laws.
5. The First Appellate Authority in the meanwhile rejected the appeal petition filed by the appellant. It appears that the appeal petition was rejected on the ground that the appellant did not affix court fee stamp of Rs.40/- on the first appeal submitted by him and did not attach a certified copy of the impugned order passed by the PIO. The rejection of the first appeal was intimated vide letter dated 14.8.2008 sent by PIO. The appellant also advised that if he feels aggrieved with the above order, he may prefer second-appeal before the State Information Commission, Bombay within 90 days of the receipt of the letter. However, the appellant in his letter dated 12.9.2008, a copy whereof has been marked to this Commission, has stated that he did not receive any of the communications stated to have been sent to him by the PIO of the Bombay High Court.
6. PIO by his note dated 15.10.2008 also informed the Registrar General of the High Court that by letter dated 14.8.2008, PIO had already informed the appellant that 2nd appellate authority is the State Information Commission but since the appellant has already filed 2nd appeal before the Central Information Commission in which he has not made any specific request, therefore, the said letter should be filed without taking any action.
7. The matter was listed for hearing before Division Bench in view of decision taken by this Commission in its Weekly Meeting that all appeals and complaints filed against various High Courts should be heard by a Bench consisting of two Information Commissioners. The hearing was fixed for 29.01.2009 and notices were issued to the appellant as well as to PIO and AA of the Public Authority on 16.12.2008.
8. Appellant was present in person, while the respondents were represented by Shri G.M. Khapre, PIO and Deputy Registrar, Bombay High Court, Nagpur Bench, Nagpur.
9. The PIO and the Appellate Authority submitted a combined written reply before this Commission on 29.01.2009 stating, inter-alia, as under:
i) The second-appeal is not maintainable as it should have been filed before the State Information Commission.
ii) Reasons and justification being sought in respect of judicial proceedings do not come within the ambit of Right to Information Act in view of judgment of the High Court in the case of "Dr. Celsa Pinto, Ex-Officio Joint Commission" (2004 Volo.110(4) Bombay L.R. 1238).
AT-13032009-07.doc Page 2 of 6
iii) The First Appellate Authority on receipt of first appeal raised certain objections regarding deficit of court fee of Rs.40/- on the appeal and non-submission of the certified copy of the impugned order. The same was communicated to the appellant by letter dated 13.6.2008 followed by reminder on 3.7.2008 (both sent under Certificate of Posting) but the appellant took no action which led to rejection of his appeal.
iv) The contention of the appellant that he did not receive any communication cannot be accepted since the letter and reminder were sent under Certificate of Posting on his last known postal address.
v) Right to Information Act is attracted only in cases when the information is available with the Public Authority, which is in the form of records, documents, memos etc as defined in Section 2(f) and (j) of the RTI Act.
vi) The appellant only sought justification and reasons in respect of orders passed by the Court in the judicial proceedings, which does not come within the ambit of Right to Information Act.
DECISIONS AND REASONS:
10. The first issue which has been raised in this case relates to jurisdiction of this Commission to deal with the matter. Although this issue was not pressed at the time of hearing, yet it is necessary to determine and decide the matter.
11. The Right to Information Act, 2005 provides for constitution of the Central Information Commission under Section 12(1) of the Act and the State Information Commission under Section 15(1) of the Act to exercise the powers conferred and to perform the functions assigned to and under the Act. The Central Information Commission is constituted by the Central Government and the State Information Commission is constituted by the respective State Government.
12. Since the Central as well as the State Information Commissions are constituted by the respective Governments, their jurisdiction will naturally be separate and distinct. What would come within the domain of the State would fall within the jurisdiction of the State Information Commission and whatever is within the domain of the Union of India will be within the exclusive jurisdiction of the Central Information Commission.
AT-13032009-07.doc Page 3 of 6
13. As per the definition of the 'Public Authority' appearing in Section 2(h) of the Right to Information Act, 2005, the Central Information Commission should have exclusive jurisdiction in respect of all public authorities, which are established or constituted -
(i) by or under the Constitutional provisions concerning Union of India;
(ii) by any other law made by Parliament;
(iii) by notification issued or order made by the Central Government,
(iv) anybody owned, controlled or substantially financed directly or indirectly by funds provided by the Central Government;
(v) non-Government organization substantially financed directly or indirectly by funds provided by the Central Government.
14. The constitution and organization of the High Courts is within the legislative ambit of the Parliament under Entry 78 to the Schedule VII of the Constitution. Article 231 of the Constitution provides that the Parliament may by law establish a common High Court for two or more States or two or more States and Union Territories. Thus, all the High Courts as Public Authorities under the Right to Information Act, 2005 will come within the jurisdiction of the Central Information Commission and not State Information Commission.
The issue is decided accordingly.
15. The PIO of the Public Authority appearing before the Commission stated that most of the information that the appellant has asked for are in the form of questions. He has sought justification and reasons in respect of the orders passed by the Hon'ble Court in judicial proceedings. This is clearly outside the ambit of the definition of "information" appearing in Section 2(f) of the RTI Act. Information under Section 2(f) means something which is tangible and available in public authority's record. Answer to hypothetical queries, or furnishing of explanations do not come within the ambit of Section 2(f) of the RTI Act. The issue concerning interpretation of the word "information" under Section 2(f) of the RTI Act, 2005 came up before the Goa Bench of the Hon'ble High Court of Bombay in the case of "Dr. Celsa Pinto, Ex-Officio Joint Commission" (2004 Volo.110(4) Bombay L.R. 1238). The following observation of the Court clarifies the scope of Section 2(f):-
"The definition cannot include within its fold answers to the question "why" which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the AT-13032009-07.doc Page 4 of 6 citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of Adjudicating Authorities and cannot properly be classified as information."
16. However, insofar as the information asked for vide Item No.1 is concerned, the above proposition does not apply. PIO himself admitted that an attempt could have been made by him to determine if the information was available. The appellant in this case wants to know the status of the letter sent to the Hon'ble Chief Justice of High Court of Bombay by Speed Post on 23.3.2006. At the hearing, the PIO stated that the letter was not available with the Nagpur Bench of the Bombay High Court but could be available with the Principal Bench at Mumbai. Since the information related to the same Public Authority, the PIO could have obtained it from those who held the information and made it available to the appellant, by seeking the holders' assistance under Section 5(4) of the Right to Information Act . He could have also sent the request of the applicant to the PIO of the Principal Bench who could have then transmitted the information to the appellant.
17. While such alternative options were available to CPIO, his rejecting the RTI-application on the ground of non-availability of information does not seem justified given the circumstances of the case. CPIO is required under Section 5(3) of the RTI Act to render reasonable assistance to the persons seeking such information, which presupposes application of mind regarding where the information can be located and how it can be accessed.
PIO is accordingly directed to ensure, by invoking the provisions of Section 5(4) or 6(3) of the RTI Act, that a response is provided to the appellant regarding the information asked for by him within three weeks from the date of receipt of this decision.
18. The last question to be resolved is about rejection of the appeal-petition by the First Appellate Authority on the ground that the appellant did not remove the office objection relating to affixing of fee of Rs.40 on his first appeal as provided under the rules of the Bombay High Court. In this connection, it may be mentioned that the Hon'ble High Court as a competent authority is empowered to formulate the rules under Section 28 of the RTI Act. Section 29 reads as under:
"Section 28:
(1) The competent authority may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.
AT-13032009-07.doc Page 5 of 6 (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:--
(i) the cost of the medium or print cost price of the materials to be disseminated under sub-section (4) of section 4;
(ii) the fee payable under sub-section (1) of section 6;
(iii) the fee payable under sub-section (1) of section 7; and
(iv)any other matter which is required to be, or may be, prescribed"
19. We wish to rest this matter by stating that the manner in which a competent authority (under Section 2(e)) exercises its powers to frame rules under Section 28, is not within the purview of this Commission.
Appeal petition accordingly stands disposed.
( A.N. TIWARI ) (SATYANANDA MISHRA) Information Commissioner Information Commissioner
Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
(L.C. SINGHI) Registrar AT-13032009-07.doc Page 6 of 6