Gauhati High Court
Ataur Rahman & 35 Ors vs The State Of Assam And Ors on 8 August, 2017
Author: Achintya Malla Bujor Barua
Bench: Achintya Malla Bujor Barua
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM : NAGALAND : MIZORAM & ARUNACHAL PRADESH)
WP(C) 2260/2010
Ataur Rahman & 35 Ors.,
........Petitioner
- VER SUS -
State of Assam & 7 Ors.
.........Respondents
BEFORE
HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
Advocate for the petitioner :-Mr. M. Shelim
Advocate for the respondent Nos.1 to 6:- Mr. S.S. Roy
Date of Hearing & Judgment : 08.08.2017
JUDGMENT & ORDER (ORAL)
Heard Mr. M. Shelim, learned counsel for the petitioners. Also heard Mr. S.S. Roy, learned counsel for the respondent Nos. 1 to 6.
2. The petitioners herein are Secretaries of different Cooperative Societies in the Kaliabor Sub-division and Nagaon Sub-Division of the Nagaon district. All the Cooperative Society of the petitioners are dealing with Public Distribution System (PDS) items in course of their daily business.
3. The respondent No.8 has filed an application on 29.09.2008, requiring certain information regarding the allotment list, records of lifting of GPSS, stock and sale book of all GPSS, cash book etc. The application of the respondent No.8 was forwarded by the Sub-Divisional Officer, Kaliabor to all the Secretaries of the Gaon Panchayat Samabari Samiti, requiring them to provide the information either directly to applicant or to the Office of the Sub-Divisional Officer. Consequent to such communication of the Sub- Page 1 of 4 Divisional Officer, the respective cooperative societies made their communications, stating therein the exact amount the applicant is required to pay for the information to be provided. One such communication is dated 15.11.2008 of Rupahi S.S. Ltd., which states that an amount of Rs.5120/- is required to be paid by the applicant for the information sought for against the aforesaid demand of the cost to be paid by the petitioner cooperative society.
4. The respondent No.8 initiated a proceeding under Section 18 of the Right to Information Act, 2005 (in short RTI Act of 2005) before the Assam Information Commission, Assam. The Information Commissioner by its order dated 15.09.2009 had taken a view that the petitioner cooperative societies are public authorities as defined under Section 2(h) of the RTI Act of 2005 and therefore, they are liable to furnish free copies of the information to the applicant.
5. The said order dated 15.09.2009 of the State Information Commissioner, Assam has been assailed in this writ petition on the ground that firstly the petitioners are not public authorities as defined under Section 2(h) of the RTI 2005 and secondly, they are required to provide information free of cost only upon when they fail to provide it within the stipulated period of 30 days of the information being demanded.
6. Section 2(h) of the RTI Act of 2005 defines public authority to mean any authority, amongst others, a non government organization substantially financed, directly or indirectly by funds provided by appropriate government. Again Section 2(a) of the RTI Act of 2005 defines appropriate government to mean that if the public authority is established, constituted, owned, controlled or substantially financed by funds provided directly or indirectly by the Central Govt. or the Union Territory Administration, then, it is the Central Govt., and if provided by the State Govt., then it is the State Govt.
Section 2(h) and 2(a) are as follows:-
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"(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;
(a) appropriate Government" means in relation to a public authority which is established, constituted, owned, controlled or substantially financed by funds provided directly or indirectly- (i) by the Central Government or the Union territory administration, the Central Government; (ii) by the State Government, the State Government"
7. When the nature of transactions undertaken by the petitioner cooperative societies are examined, it is found that the petitioner societies are engaged in the distribution of PDS items, which admittedly is an item controlled by the state government and therefore, the profits that are generated by the distribution of PDS items can be viewed to be an indirect substantial financing of the petitioner cooperative societies by the State Govt.
Accordingly, it is held that the petitioner cooperative societies are public authorities within the meaning of Section 2(h) of the Act 2005.
8. As regards, the other contention that the petitioners have responded to the application of the respondent No.8 within the stipulated time, it is noticed, Section 7(1) of the RTI 2005 inter alia provides that the required information be provided as expeditiously as possible and in any case within 30 days of the receipt of the request. Further Section 7(6) of the RTI Act 2005 provides that notwithstanding anything contained in sub-section 5, the person making request for the information shall be with provided the information free of charge where a public authority fails to comply with the time limits specified in sub-section(1).
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9. On a conjoint reading of Section 7(1) and 7(6), it is noticed that in the event, information sought for, is not provided by the public authority within a period of 30 days of the request, such information shall be provided free of cost to the applicant.
10. In the instant case, it is noticed that the application by the respondent No.8 was made on 29.09.2008, but at the same time, the said application was forwarded by the SDO(Civil), Kaliabor to the respective Secretaries of the cooperative societies by communication dated 21.10.2008. Accordingly, it has to be construed that the respective authorities have received the request of the respondent No.8 after 21.10.2008. It is also noticed that upon receiving the said communication of the SDO(Civil) Kaliabor, the petitioners made their response through their communications requiring the applicant to provide the cost of the information.
In such view of the matter, the conclusion arrived by the Chief Information Commissioner, Assam in Sub-Clause-3 of the impugned order that the public authorities have failed to give details of the cost to the applicant within the stipulated time is found to be incorrect.
11. Accordingly, the matter is remanded back to the Chief Information Commission, Assam to take fresh decision on the matter as to whether the respondent No.8 is entitled to free information from the petitioner.
Writ petition is accordingly closed.
Interim order, if any, passed earlier stands vacated.
JUDGE Anamika Page 4 of 4