Gujarat High Court
Navjivan Arts And Commerce College & vs Bhanuprasad Ranchhodbhai Parmar & on 3 March, 2016
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/7357/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7357 of 2015
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NAVJIVAN ARTS AND COMMERCE COLLEGE & 1....Petitioner(s)
Versus
BHANUPRASAD RANCHHODBHAI PARMAR & 1....Respondent(s)
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Appearance:
MR RR VAKIL, ADVOCATE for the Petitioners
MR DILIP B RANA, ADVOCATE for the Respondent(s) No. 1
MS VRUNDA SHAH, AGP for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 03/03/2016
ORAL ORDER
1. Heard Mr.R.R.Vakil, learned counsel for the petitioners, Mr.Dilip B. Rana, learned counsel for respondent No.1 and Ms.Vrunda Shah, learned Assistant Government Pleader for respondent No.2-Authority.
2. By way of this petition under Article 226 of the Constitution of India, the petitioners have challenged the order dated 11.03.2015 passed by respondent No.2 under Section 19 of the Right to Information Act, 2005 (hereinafter referred to as "the Act" for short).
3. The following facts emerge from the record of the petition:
3.1 That petitioner No.1 is college in the name and style of "Navjivan Arts and Commerce College" at Dahod.
Respondent No.1 is ex-employee of the school namely Little Flower School, which is run by Dahod Anaj Mahajan Sarvajanik Education Society. Respondent No.1 filed an Page 1 of 9 HC-NIC Page 1 of 9 Created On Sun Mar 13 22:47:55 IST 2016 C/SCA/7357/2015 ORDER application to provide information under the provisions of the Act on 24.01.2013, which is at Annexure:B to the petition. The public Information Officer of the petitioner-College vide order dated 04.02.2013 declined the said application.
3.2 Being aggrieved by the same, respondent No.1 filed first appeal before the appellate officer. Thereafter, the appellate officer vide order dated 29.05.2013 dismissed the first appeal.
3.3 Being aggrieved by the same, respondent No.1 filed second appeal under Section 19 of the Act, which came to be registered as Appeal No.A-7672/2013. The said appeal was allowed by respondent No.2 - appellate authority vide order dated 11.03.2015. Being aggrieved by the order passed by the appellate authority in second appeal filed by respondent No.1, the petitioners have preferred this petition.
4. Learned counsel for the petitioners contended that the orders passed by the Public Information Officer as well as the first appellate authority are legal and proper. It was further contended that the reasons given for rejection of the application is in consonance with the provisions of Section 8 of the Act, as on date on which the application was taken up for hearing by the Public Information Officer as well as the first appellate authority, Public Interest Litigation No.73 of 2012 filed by father of respondent No.1 was pending before the Division Bench of this Court. It was submitted that in fact, respondent No.1 was serving in the school run by petitioner-College and against the removal of respondent No.1, he approached the Educational Tribunal by way of Page 2 of 9 HC-NIC Page 2 of 9 Created On Sun Mar 13 22:47:55 IST 2016 C/SCA/7357/2015 ORDER Application No.144 of 2011, which according to learned counsel for the petitioners is still pending. It was, therefore, contended that the reason given by both the authorities is legal and proper and respondent No.2 has committed an error apparent on face of the record. Relying upon the provisions of Section 8 (1)(f) of the Act, it was contended that the relationship between petitioner No.1 and the students is fiduciary in nature and respondent No.1 is a third party. Learned counsel for the petitioners relying upon the judgment of the Apex Court in the case of Central Board of Secondary Education & Anr. Vs. Aditya Bandopadhyay & Ors., [Civil Appeal No.6454 of 2011) dated 09.08.2011, contended that as per the provisions of Section 8(1)(e) of the Act, information sought for by respondent No.1 would come under the exemption and respondent No.1-original applicant as third party is not entitled to such information and considering the relationship of petitioner No.1 with the students, such information cannot be given even under the provisions of the Act. Learned counsel for the petitioners on that count submitted that the impugned order is bad and illegal and the same deserves to be quashed. It was submitted that hence, the petition deserves to be allowed.
5. Learned counsel for respondent No.1 has supported the impugned order and contended that the appellate authority has rightly come to the conclusion that petitioner No.1 being grant-in-aid institute is covered under the provisions of the Act. It was further submitted that the reason given by the appellate authority is as per the provisions of the Act and therefore, there is no error apparent on the face of the record and no interference is called for by this Court under Article 226 of the Page 3 of 9 HC-NIC Page 3 of 9 Created On Sun Mar 13 22:47:55 IST 2016 C/SCA/7357/2015 ORDER Constitution of India.
6. Learned AGP has also relied upon the impugned order.
No other or further submissions are made by learned counsel for the parties.
7. Before reverting to the contentions raised on behalf of the parties, it would be appropriate to refer to the provisions of Section 8 of the Act:
"Section 8-Exemption from disclosure of information (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-
(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;
(b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;
(c) information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;
(d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;
(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;
(f) information received in confidence from foreign Government;
(g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;
(h) information which would impede the process of investigation or apprehension or prosecution of offenders;
(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers:
Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the bas is of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over:
Provided further that those matters which come under the exemptions specified in this section shall not be Page 4 of 9 HC-NIC Page 4 of 9 Created On Sun Mar 13 22:47:55 IST 2016 C/SCA/7357/2015 ORDER disclosed;
(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:
Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.
(2) Notwithstanding anything in the Official Secrets Act, 1923 nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.
(3) Subject to the provisions of clauses (a), (c) and (i) of sub-section (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made under section 6 shall be provided to any person making a request under that section:
Provided that where any question arises as to the date from which the said period of twenty years has to be computed, the decision of the Central Government shall be final, subject to the usual appeals provided for in this Act."
8. On perusal of the order passed by the Public Information Officer as well as the first appellate authority and even the impugned order, it appears that only the contention which is raised by the parties before the authority is that in view of pendency of litigation, which is likely to affect the same and relying upon the provisions of Section 8(1)(h) of the Act, information sought for by respondent No.1 came to be declined. Before the appellate authority, the petitioners also contended that petitioner No.1 being college is not within the purview of the Act for which the petitioners have relied upon unreported judgment of the Bombay High Court as can be seen from the order impugned passed in Case No.5132 of 2008 dated 20.08.2009. However, the fact remains that petitioner No.1 as College receives grant-in-aid from the Page 5 of 9 HC-NIC Page 5 of 9 Created On Sun Mar 13 22:47:55 IST 2016 C/SCA/7357/2015 ORDER Government and therefore, it cannot be said that the petitioner-College is not within the ambit and purview of the Act. However, considering the information which is sought for by respondent No.1 by application dated 24.01.2013, it clearly appears that some of the information relate to the students, who were/are studying with petitioner No.1 and therefore, it appears that petitioner No.1 has fiduciary relation with those students. The Apex Court in the case of Central Board of Secondary Education & Anr. (supra) has observed thus:-
"24. We may next consider whether an examining body would be entitled to claim exemption under section 8(1)(e) of the RTI Act, even assuming that it is in a fiduciary relationship with the examinee. That section provides that notwithstanding anything contained in the Act, there shall be no obligation to give any citizen information available to a person in his fiduciary relationship. This would only mean that even if the relationship is fiduciary, the exemption would operate in regard to giving access to the information held in fiduciary relationship, to third parties. There is no question of the fiduciary withholding information relating to the beneficiary, from the beneficiary himself. One of the duties of the fiduciary is to make thorough disclosure of all relevant facts of all transactions between them to the beneficiary, in a fiduciary relationship. By that logic, the examining body, if it is in a fiduciary relationship with an examinee, will be liable to make a full disclosure of the evaluated answer- books to the examinee and at the same time, owe a duty to the examinee not to disclose the answer-books to anyone else. If A entrusts a document or an article to B to be processed, on completion of processing, B is not expected to give the document or article to anyone else but is bound to give the same to A who entrusted the document or article to B for processing. Therefore, if a relationship of fiduciary and beneficiary is assumed between the examining body and the examinee with reference to the answer-book, section 8(1)(e) would operate as an exemption to prevent access to any third party and will not operate as a bar for the very person who wrote the answer-book, seeking inspection or disclosure of it."
9. It appears that respondent No.1 - original applicant Page 6 of 9 HC-NIC Page 6 of 9 Created On Sun Mar 13 22:47:55 IST 2016 C/SCA/7357/2015 ORDER is third party. As far as item No.1 of the application dated 24.01.2013 filed by respondent No.1 is concerned, the same cannot be said to be exempted from the provisions of the Act even under Section 8(1)(e) of the Act as canvassed by learned counsel for the petitioners. Further, item Nos.2 to 4, which are the information sought for by respondent No.1 contain the information which relate to the details of the students and their relationship with petitioner No.1, which are admittedly fiduciary in nature and therefore, applying the provisions of Section 8(1)(e) of the Act, information which relates to the students stand exempted as provided under Sections 8(1)(e) of the Act. Considering the item wise information, which is sought for by respondent No.1 and applying the ratio laid down by Central Board of Secondary Education & Anr. (supra) as well as upon considering the provisions of Section 8(1)(e), as far as item No.2 is concerned, respondent No.1 is entitled to the information as regards five years scheme just as N.R.S. Hall, Ladies Hostel, Gymnasium, Central Library and such amenities for which the grant is received or not and if received, quantum of such grant and when. In opinion of this Court, respondent No.1 would also entitle to further information as asked for in item No.2 to the extent of grant received and its present position. However, further information asked for in item No.2 as regards how many students have taken the advantage of such scheme and the names and address as well as administrative expenses along with documentary proof would come within purview of Section 8 (1)(e) of the Act and would stand exempted under the Act. Similarly, item No.3 of the information sought for in application dated 24.01.2013, respondent No.1 would be entitled to the information only to the extent of number of students, who Page 7 of 9 HC-NIC Page 7 of 9 Created On Sun Mar 13 22:47:55 IST 2016 C/SCA/7357/2015 ORDER have been benefited. However, the information as regards the name and address as well as administrative expenses and the documentary proof/evidence in relation to the scheme namely COP (sic) would fall within exemption as provided under Section 8(1)(e) of the Act and such information cannot be given to respondent No.1, who is a third party. Similarly in item No.4 also, respondent No.1 would only be entitled to the information as regards how many students have been benefited from five years scheme and for which period stipend grant is received and the number of students who have been paid such stipend. Rest of the information as regards the name and address of the students as well as documentary proof relating to the same, would fall within exemption as provided under Section 8(1)(e) of the Act and accordingly, respondent No.1 would not be entitled to such information.
10. It is no doubt true that the petitioners have not raised this issue before the appellate authority, nor respondent No.2 had occasion to deal with it. However, considering it to be a point of law, the same is permitted to be raised by the petitioners before this Court.
11. In light of the aforesaid, this Court finds that as such there is no error apparent on face of the record of the impugned order. However, the impugned order is modified to the aforesaid extent and respondent No.1 would be entitled to the only information which is not exempted under Section 8(1)(e) of the Act as observed hereinabove. If such information is provided by the petitioners within a period of 30 days, respondent No.1 shall have to pay the requisite charges. However, if such information is not given within 30 days, petitioner No.1-College shall have to bear the cost of such information also.
Page 8 of 9HC-NIC Page 8 of 9 Created On Sun Mar 13 22:47:55 IST 2016 C/SCA/7357/2015 ORDER The petition is, therefore, not entertained except the aforesaid modification. Notice is discharged. However, in the facts of the case, there shall be no order as to costs.
(R.M.CHHAYA, J.) Suchit Page 9 of 9 HC-NIC Page 9 of 9 Created On Sun Mar 13 22:47:55 IST 2016