Gujarat High Court
Agriculture Produce Market Committee - ... vs Chief Information Commissioner & 3 on 20 October, 2015
Bench: Jayant Patel, N.V.Anjaria
C/LPA/1268/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1268 of 2015
In SPECIAL CIVIL APPLICATION NO. 10259 of 2013
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AGRICULTURE PRODUCE MARKET COMMITTEE - UNJHA &
1....Appellant(s)
Versus
CHIEF INFORMATION COMMISSIONER & 3....Respondent(s)
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Appearance:
MR BS PATEL, ADVOCATE WITH MR ARCHIT P JANI, ADVOCATE for the
Appellant(s) No. 1 - 2
MR RAKESH PATEL, LD. AGP for the Respondent(s) No. 2
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE
MR.JAYANT PATEL
and
HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 20/10/2015
ORAL ORDER
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR.JAYANT PATEL)
1. The present appeal is directed against order dated 12th August, 2015 passed by learned Single Judge of this Court in Special Civil Application No.10259 of 2013, whereby the learned Single Judge after holding that the Market Committee is a public authority under Section 2(h) of the Right to Information Act, 2005 (hereinafter referred to as 'the Act'), has set aside order and left respondent No.5 to seek remedy under the Act before the appropriate forum by appropriate proceedings.
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2. We have heard Mr.Patel, learned counsel appearing with Mr.Jani for the appellants.
3. The contention raised on behalf of the appellants is that though the learned Single Judge has set aside the order which was under challenge, observations made by the learned Single Judge that appellant-Market Committee is a public authority under Section 2(h) of the Act is not correct and the appellants being aggrieved by the said conclusion recorded by the learned Single Judge, has preferred the present appeal.
4. Mr.Patel relied on decision of the Apex Court in case of Dalco Engineering Private Limited Vs Satish Prabhakar Padhey reported at (2010) 4 SCC 378 to contend that there is a difference between the body or institution established under or constituted under by the Act or under the Act. He submitted that the Market Committee is constituted under the Gujarat Agricultural Produce Market Act which is an Act made by State Legislature and not established by the Act and therefore, as the language is used under Section 2(h) for established or constituted by the Act, Market Committee would not be covered in the definition of Page 2 of 15 HC-NIC Page 2 of 15 Created On Sat Oct 24 00:59:18 IST 2015 C/LPA/1268/2015 ORDER Section 2(h) of the Act as public authority. Hence this Court may consider the said aspect in the appeal.
5. The learned Single Judge after considering the provisions of the Scheme of the Act has observed from paragraphs 34 to 38. Paragraphs 34 to 38 for ready reference is reproduced as under.
"34. Thus, from the entire scheme of the Act, it clearly appears that establishment and constitution of the Market Committee is by the law of Market Act enacted by the legislature. It is thus a public authority as defined under Section 2(h) of the Act. Having thus come to such conclusion, the Court is not required to examine whether such Market Committee could be said to be owned, controlled or substantially financed by the funds of the Government so as to be covered by Section 2(h) of the Act. However, even on such aspect, considering the provisions of the Market Act, it clearly appears that it is neither owned by the Government nor could it be said that it is controlled by the State Government or substantially financed by the Government. Chapter of Control in the Market Act is to ensure that the Market Committee functions in accordance with the provisions of the Act and to achieve the object and purpose of the Act. Thus, regulatory measures are provided to ensure that Market Committee conducts its affairs as required by the Market Act. The Market Committee has to generate its fund, called as Market Fund by levying and collection of market fees and like the State Government, Market Committee is under statutory obligation to provide proportionate funds, as required by the provisions of the Act, to the statutory Board constituted for good object relating to up-liftment of the farmers and for achieving the object and purpose as regards regulating of buying and selling of the agricultural produce. Therefore, it cannot be said that the Market Committee is either controlled by the State Government or in any way, could be said to be substantially financed by the State Page 3 of 15 HC-NIC Page 3 of 15 Created On Sat Oct 24 00:59:18 IST 2015 C/LPA/1268/2015 ORDER Government.
35. At this stage, a reference is required to be made to the decision of the Bombay High Court, relied on by learned senior advocate Mr. Shelat, in the case of Meghraj Pundlikrao Dongre (supra). In the said case, similar issue as to whether Market Committee constituted under the Maharashtra Agricultural Produce Marketing (Development and Regulation) Act could be said to be a public authority under Section 2(h) of the Act is decided. Bombay High Court in the said decision has held and observed in para 11 to 14 as under:-
11. Perusal of the above provisions shows that, in the Chapter of Constitution of Market Committees, Section 11 of the APMC Act provides for establishment of Market Committees. Section 12(2) provides that such Market Committee shall for all purposes be deemed to be a local Authority. Needless to say that the local Authority is an institution of self-Government. Section 13 opens with the words "constitution of Market Committees". Sub-section (2) of Section 13 clearly provides for constitution of a Market committee for the first time either u/S. 1, 1(A) or 1 (B) and it is significant to note that when such Market Committee is constituted for the first time, it is the State Government which nominates the entire Market Committee and its Office bearers as per the said sub-section (2). It is, thus clear that the APMC Act itself constitutes or brings into existence the Market Committees by operation of the above said provisions of the Act and to reiterate the same, it is not by registration with any Authority appointed by the Government as is found in the case of the Co-operative Societies. Thus, the Market committee is brought into existence not by virtue of an act of any person to register a Market Committee like a Society and then bring it into existence, but a Market Committee comes into existence by virtue of operation of the provisions of the APMC Act, which is the law made by State Legislature. Not only that, Section 12(2) clearly provides that every Market Committee shall for all purposes be deemed to be a local Authority. Looked in this background, we quote the definition of "public authority", as given in Section 2(h) of the RTI Act, which reads thus :
2(h) : "public authority" means any authority or body or institution of self-government established or constituted -
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate Government, and includes any -
(i) body owned, controlled or substantially financed;
(ii) non-Government organization substantially financed, directly or indirectly by funds provided by the appropriate Government;Page 4 of 15
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12. Perusal of the above definition clearly shows that the APMC is an institution of self-government; that too, established and constituted by a law made by the State Legislature. Section 12(2) of the APMC Act opens with a non- obstante clause and states that every Market Committee for all purposes, be deemed to be a local authority. At this juncture, we have noticed the Judgment of the Hon'ble Apex Court in the case of APMC, Narela v. CIT and another, (2008) 305 ITR 1 : (AIR 2008 SC (Supp) 566), in which it is held that explanation to Section 10(20) of the Income Tax Act, 1961 as amended by the Finance Act, 2002 does not cover APMC and hence, is not entitled to exemption. We thus find that there is clear distinguishing feature in not treating APMC as a 'local authority' under Income Tax Act. But, by virtue of Section 12(2) of the APMC Act, the Agricultural Produce Market Committee will fall within the meaning of 'local authority' and consequently, under Section 2(h) of the RTI Act, 2005.Insofar as the decision of the State Information Commissioner, Amravati Bench, Amravati is concerned, we find that the said Commissioner clearly erred in treating a Market Committee under APMC Act and Co-operative Society under the Maharashtra Co-operative Societies Act, 1960 as one and the same thing. The Learned Commissioner also erred in holding that the Khamgaon APMC is a Society and following the decision of the single Judge of this Court delivered in Writ Petition No.5666 of 2007(reported in AIR 2009 Bom 75 :
2009 (2) AIR Bom R 592) (cited supra) in respect of Co- operative Society, he wrongly held that the RTI Act will not apply to Khamgaon APMC. The decision recorded by the said Commissioner is thus illegal.
13. We find that the judgment in the case of Dr. Punjabrao Deshmukh Urban Co-operative Bank Ltd. (cited supra) dated 13-1-2009 was in relation to a Co-operative Society/Bank and therefore, it cannot be made applicable to a case relating to the Market Committee under the APMC Act.
14. We, thus, hold that the appellant/Market Committee is established and constituted as an institution of self-
government and is a local Authority and by law made by the State Legislature. Consequently, the provisions of the RTI Act do apply to the appellant/APMC. Before parting with the judgment, looking to the increase in number of scams in the Co-operative Credit Societies, Urban and Other Co-operative banks due to frauds played by the persons within the Society or the bank causing severe losses to the poor depositors and since the money of the depositors is involved in such Societies/banks, it would be far better to cover all the Co- operative Credit Societies/banks etc. under the RTI Act. We recommend accordingly to the Central Government. In the result, we find no merit in the present appeal. Hence, the L.P.A. is dismissed.
36. The Court finds from the impugned orders that the respondent No.1 has considered the provisions of the Market Act and committed no error in coming to the conclusion that the Market Committee is Public Authority within the definition under Section 2(h) of the Act. This Court also having Page 5 of 15 HC-NIC Page 5 of 15 Created On Sat Oct 24 00:59:18 IST 2015 C/LPA/1268/2015 ORDER come to conclusion that the Market Committee established and constituted as per the provisions of the Market Act is a public authority under Section 2(h) of the Act, further question in the first petition as to whether respondent No.1 Commissioner while deciding the complaint under Section 18 of the Act could have directed the Market Committee to provide information to the complainant- respondent No.5 needs to be answered. Sections 18 and 19 of the Act read as under:-
18. Powers and functions of Information Commissions (1) Subject to the provisions of this Act, it shall be the duty of the Central Information Commission or State Information Commission, as the case may be, to receive and inquire into a complaint from any person,-
(a) who has been unable to submit a request to a Central Public Information Officer or State Public Information Officer, as the case may be, either by reasons that no such officer has been appointed under this Act, or because the Central assistant Public Information Officer or State assistant Public Information Officer, as the case may be, has refused to accept his or her application for information or appeal under this Act for forwarding the same to the Central Public Information Officer or State Public Information Officer or senior officer specified in sub-
section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be;
(b) who has been refused access to any information requested under this Act;
(c) who has not been given a response to a request for information or access to information within the time limit specified under this Act;
(d) who has been required to pay an amount of fee which he or she considers unReasonable;
(e) who believes that he or she has been given incomplete, misleading or false information under this Act; and
(f) in respect of any other matter relating to requesting or obtaining access to records under this Act.
(2) Where the Central Information Commission or State Information Commission, as the case may be, is satisfied that there are Reasonable grounds to inquire into the matter, it may initiate an inquiry in respect thereof.
(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 Page 6 of 15 HC-NIC Page 6 of 15 Created On Sat Oct 24 00:59:18 IST 2015 C/LPA/1268/2015 ORDER 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.
(4) Notwithstanding anything inconsistent contained in any other Act of Parliament or State Legislature, as the case may be, the Central Information Commission or the State Information Commission, as the case may be, may, during the inquiry of any complaint under this Act, examine any record to which this Act applies which is under the control of the public authority, and no such record may be withheld from it on any grounds.
19. Appeal (1) Any person who, does not receive a decision within the time specified in sub-section (1) or clause (a) of sub-
section (3) of section 7, or is aggrieved by a decision of the Central Public Information Officer or State Public Information Officer, as the case may be, may within thirty days from the expiry of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the Central Public Information Officer or State Public Information Officer as the case may be, in each public authority:
Provided that such officer may admit the appeal after the expiry of the period of thirty days if he or she is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
(2) Where an appeal is preferred against an order made by a Central Public Information Officer or a State Public Information Officer, as the case may be, under section 11 to disclose third party information, the appeal by the concerned third party shall be made within thirty days from the date of the order.
(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 Page 7 of 15 HC-NIC Page 7 of 15 Created On Sat Oct 24 00:59:18 IST 2015 C/LPA/1268/2015 ORDER 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.
(4) If the decision of the Central Public Information Officer or State Public Information Officer, as the case may be, against which an appeal is preferred relates to information of a third party, the Central Information Commission or State Information Commission, as the case may be, shall give a Reasonable opportunity of being heard to that third party.
(5) In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request.
(6) An appeal under sub-section (1) or sub-section (2) shall be disposed of within thirty days of the receipt of the appeal or within such extended period not exceeding a total of forty-five days from the date of filing thereof, as the case may be, for reasons to be recorded in writing.
(7) The decision of the Central Information Commission or State Information Commission, as the case may be, shall be binding.
(8) In its decision, the Central Information Commission or State Information Commission, as the case may be, has the power to-
(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.Page 8 of 15
HC-NIC Page 8 of 15 Created On Sat Oct 24 00:59:18 IST 2015 C/LPA/1268/2015 ORDER (9) The Central Information Commission or State Information Commission, as the case may be, shall give notice of its decision, including any right of appeal, to the complainant and the public authority.
(10) The Central Information Commission or State Information Commission, as the case may be, shall decide the appeal in accordance with such procedure as may be prescribed.
37. In the context of Sections 18 and 19 of the Act, Honble Supreme Court in the case of Chief Information Commissioner & Another Vs. State of Manipur and Another reported in AIR 2012 SC 864, has held and observed in para 30 to 37 as under:-
30. It has been contended before us by the respondent that under Section 18 of the Act the Central Information Commission or the State Information Commission has no power to provide access to the information which has been requested for by any person but which has been denied to him. The only order which can be passed by the Central Information Commission or the State Information Commission, as the case may be, under Section 18 is an order of penalty provided under Section 20. However, before such order is passed the Commissioner must be satisfied that the conduct of the Information Officer was not bona fide.
31. We uphold the said contention and do not find any error in the impugned judgment of the High court whereby it has been held that the Commissioner while entertaining a complaint under Section 18 of the said Act has no jurisdiction to pass an order providing for access to the information.
32. In the facts of the case, the appellant after having applied for information under Section 6 and then not having received any reply thereto, it must be deemed that he has been refused the information. The said situation is covered by Section 7 of the Act. The remedy for such a person who has been refused the information is provided under Section 19 of the Act. A reading of Section 19(1) of the Act makes it clear. Section 19(1) of the Act is set out below:-
"19.Appeal.- (1) Any person who, does not receive a decision within the time specified in sub-section (1) or clause (a) of sub-section (3) of section 7, or is aggrieved by a decision of the Central Public Information Officer or the State Public Information Officer, as the case may be, may within thirty days from the expiry of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the Central Public Information Officer or the State Public Information Officer as the case may be, in each public authority:
Provided that such officer may admit the appeal after the expiry of the period of thirty days if he or she is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time."Page 9 of 15
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33. A second appeal is also provided under sub-section (3) of Section 19. Section 19(3) is also set out below:-
"(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."
34. Section 19(4) deals with procedure relating to information of a third party. Sections 19(5) and 19(6) are procedural in nature. Under Section 19(8) the power of the Information Commission has been specifically mentioned. Those powers are as follows:-
"19(8). In its decision, the Central Information Commission or State Information Commission, as the case may be, has the power to,-
(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."
35. The procedure for hearing the appeals have been framed in exercise of power under clauses (e) and (f) of sub- section (2) of Section 27 of the Act. They are called the Central Information Commission (Appeal Procedure) Rules, 2005. The procedure of deciding the appeals is laid down in Rule 5 of the said Rules. Therefore, the procedure Page 10 of 15 HC-NIC Page 10 of 15 Created On Sat Oct 24 00:59:18 IST 2015 C/LPA/1268/2015 ORDER contemplated under Section 18 and Section 19 of the said Act is substantially different. The nature of the power under Section 18 is supervisory in character whereas the procedure under Section 19 is an appellate procedure and a person who is aggrieved by refusal in receiving the information which he has sought for can only seek redress in the manner provided in the statute, namely, by following the procedure under Section 19. This Court is, therefore, of the opinion that Section 7 read with Section 19 provides a complete statutory mechanism to a person who is aggrieved by refusal to receive information. Such person has to get the information by following the aforesaid statutory provisions. The contention of the appellant that information can be accessed through Section 18 is contrary to the express provision of Section 19 of the Act. It is well known when a procedure is laid down statutorily and there is no challenge to the said statutory procedure the Court should not, in the name of interpretation, lay down a procedure which is contrary to the express statutory provision. It is a time honoured principle as early as from the decision in Taylor v. Taylor [(1876) 1 Ch D 426] that where statute provides for something to be done in a particular manner it can be done in that manner alone and all other modes of performance are necessarily forbidden. This principle has been followed by the Judicial Committee of the Privy Council in Nazir Ahmad v. Emperor [AIR 1936 PC 253(1)] and also by this Court in Deep Chand v. State of Rajasthan - [AIR 1961 SC 1527, (para 9)] and also in State of U.P. v. Singhara Singh, reported in AIR 1964 SC 358 (para 8).
36. This Court accepts the argument of the appellant that any other construction would render the provision of Section 19(8) of the Act totally redundant. It is one of the well known canons of interpretation that no statute should be interpreted in such a manner as to render a part of it redundant or surplusage.
37. We are of the view that Sections 18 and 19 of the Act serve two different purposes and lay down two different procedures and they provide two different remedies. One cannot be a substitute for the other.
38. In above view of the matter, even while holding that Market Committee is a public authority under Section 2(h) of the Act, the impugned order in the first petition insofar as respondent No.1 has given direction to the Market Committee to provide information to the complainant- respondent No.5 is required to be interfered with and is quashed and set aside, leaving it open to respondent No.5 to find his remedy to seek information under the Act before appropriate forum by appropriate proceedings."
6. As such we are not at all impressed by the contention that the Market Committee is constituted Page 11 of 15 HC-NIC Page 11 of 15 Created On Sat Oct 24 00:59:18 IST 2015 C/LPA/1268/2015 ORDER under the Act, and hence such would make any difference to take out the Market Committee from the meaning of public authority. When as such Section 2(h) is already referred to in the above-referred observations of the learned Single Judge, we need not repeat, but there is basic fallacy in the argument and the same is that Section 2(h) covers "any authority"
or "body" "established" or "constituted". The fact that the language used is for "any authority or constitution of such authority by any law made by the State Legislature", such authority would get included in the meaning of public authority.
7. Having considered the same if the Scheme of the Gujarat Agricultural Produce Market Act is considered, it is true that in the definition clause of Section 2(xiv), Market Committee is defined but there is a statutory deeming fiction of establishment under the Act as per Section 2(xiv) of the Act.
Further, though as per Section 9 language used is for the purpose of establishment of Market Committee, but Section 11 provides for constitution of the Market Committee. Such constitution is by the statutory fiction in the manner as provided under the APMC Act.
Page 12 of 15HC-NIC Page 12 of 15 Created On Sat Oct 24 00:59:18 IST 2015 C/LPA/1268/2015 ORDER Further, such constitution of the Market Committee as an authority is required to be considered in contra-
distinction to any organisation established under any other law made by the State Legislature like society under the Cooperative Societies Act or company under the Companies Act. Not only that, but sub-section (2) of Section 10 creates a statutory deeming fiction to treat the Market Committee as local authority. The said deeming fiction is to be understood in light of provision of Section 3(26) of the Bombay General Clauses Act. As per Section 3(26) of the Bombay General Clauses Act, legal authority is defined as-
""local authority" shall mean a municipal corporation, municipality, local board, body of port trustees or commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of municipal or local fund". Such fund is relatable to Section 32 of the Market Committee Fund under the APMC Act.
8. As per the Scheme of the Act, establishment and constitution of the Market Committee is for regulating the sales and purchase of the agricultural produce in the market area which is a governmental Page 13 of 15 HC-NIC Page 13 of 15 Created On Sat Oct 24 00:59:18 IST 2015 C/LPA/1268/2015 ORDER function, coupled with the authority on part of the Market Committee to collect market fees from the purchasers. It is hardly required to be stated that when there is element of compulsory payment of fees to any authority under any law made by the State Legislature and further the Act provides for coercive measure available to the authority to recover such fees, it would be for all the purposes the authority under the law. There are powers vested under Section 29 for entry and search, there are powers vested to the Chairman, Vice Chairman and Secretary of the Market Committee to summarily evict any person in the market area. Section 51 of the Act further provides that recovery of the dues of the Market Committee shall be recoverable as the arrears of land revenue.
9. The aforesaid provision of the Gujarat Agricultural Produce Market Act leaves no manner of doubt that it is a local authority which would fall within the meaning of the word "authority" and such Market Committee is to be constituted by the APMC Act which is a law made by the Legislature. Therefore under these circumstances, if the learned Single Judge has found that the Market Committee is a public Page 14 of 15 HC-NIC Page 14 of 15 Created On Sat Oct 24 00:59:18 IST 2015 C/LPA/1268/2015 ORDER authority under Section 2(h) of the Act, it cannot be said that any error has been committed by the learned Single Judge which may call for any interference in the present appeal.
10. Hence, no case is made out for interference.
Appeal being meritless, is dismissed.
(JAYANT PATEL, ACJ.) (N.V.ANJARIA, J.) Anup Page 15 of 15 HC-NIC Page 15 of 15 Created On Sat Oct 24 00:59:18 IST 2015