Central Information Commission
Mrmd Mushtaq Ali vs Mtnl on 25 April, 2014
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26101592
File No. CIC/BS/A/2013/000698/4986
25 April 2014
Relevant Facts emerging from the Appeal:
Appellant : Mr. Mohd. Mushtaq Ali M. S. Laljee
19-3-04, Sheffield Tower,
Lokhandwala Complex,
2nd Cross Lane, Andheri (West),
Mumbai - 400053
Respondent : CPIO & General Manager (North)
MTNL
O/o the Asstt. General Manager (OP) North
2nd Floor, Wadala Telephone Exchange Bldg,
G. D. Ambekar Marg, Dadar (E),
Mumbai - 14
RTI application filed on : 21/11/2012
PIO replied on : 29/11/2012
First appeal filed on : 26/12/2012
First Appellate Authority order : 08/01/2013
Second Appeal dated : 21/02/2013
Information sought:
The applicant wants the photocopies of all the papers submitted for new connection and the last three bills and one bill given after the connection regarding SHAH VIPUL MOTILAL Telephone No. 24098037 & VEERA TANNERIES P LTD. Telephone No. 24076277 & 24078123.
Grounds for the Second Appeal:
The CPIO has denied the information under Section 8(1)(j) of the RTI Act 2005.
Relevant Facts emerging during Hearing:
The following were present Appellant: Mr. Mohd. Mushtaq Ali M. s. Laljee through TC 09820025875 Respondent: Mr. S R Pachangane CPIO's representative through VC M: 9869437688 The CPIO's representative stated that the appellant in his RTI application dated 21/11/2012 had sought copies of the documents supplied by two subscribers for obtaining their telephone connection and as the information was related to third party(s) they had carried out the process as outlined under Section 11 of the RTI Act but the subscribers have objected to the disclosure. The appellant pleaded that Shah Vipul Motilal is an illegal occupant of the property and hence, the Page 1 of 4 information should be disclosed to him. He further stated that in support of his contention he has enclosed a judgment of the Hon'ble Bombay High Court in the matter of Board of Management of the Bombay properties of the Indian Institute of Science Mumbai vs. CIC. The appellant while concluding argued that as per the proviso to Section 8(1) (j) of the RTI Act the information which cannot be denied to the Parliament cannot be withheld from him.
Decision notice:
At the outset we will examine the applicability of the decision of the Mumbai High Court cited by the Appellant to the matter at hand. The legal issues decided in the aforesaid decision were that the petitioner (viz. Board of Management of the Bombay Properties of the Indian Institute of Science, Mumbai) is a Public Authority as defined under Section 2(h) of the RTI Act and while entertaining an application for information made under the RTI Act, the locus standi or the intention of the Applicant cannot be questioned and the Public Authority is required to furnish all the information sought by him except what has been exempted under Section 8 of the RTI Act. In the instant case the legal issue is completely different as the Applicant has sought information which relates to or has been supplied by Third Party who has objected to its disclosure and the PIO has denied the information claiming exemption under Section 8(1)(j) of the RTI Act.
It is seen that this issue has also been dealt with by the Hon'ble High Court of Delhi in its decision dated 19/02/2014 (W.P.(C) 3406/2012 and CM APPL. 7218/2012 Union of India vs. R. Jayachandran) holding as under:
"6. This Court finds that the concept of third party information has been comprehensively dealt with in the RTI Act. Some of the relevant sections pertaining to third party as well as personal information are reproduced herein below:-
2. Definitions.--In this Act, unless the context otherwise requires,--
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(n) "third party"' means a person other than the citizen making a request for information and includes a public authority.
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8. Exemption from disclosure of information. --(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,--
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(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.
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11. Third party information.--(1) Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Page 2 of 4 Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information: Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party.
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19. Appeal.-
xxxx xxxx xxxx xxxx (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."
7. Keeping in view the aforesaid provisions, this Court is of the view that the proper approach to be adopted in cases where personal information with regard to third parties is asked is first to determine whether information sought falls under Section 8(1) (j) of the RTI Act and if the Court/Tribunal reaches the conclusion that aforesaid exemption is not attracted, then the third party procedure referred to in Section 11(1) of the RTI Act must be followed before releasing the information."
Another issue raised by the Applicant is that 'information which cannot be denied to the Parliament cannot be denied to him'. This issue has also been elaborately clarified by the Hon'ble Delhi High Court in its decision dated 30/11/2009 in the matter of Union Of India Thr. Director vs Central Information Commission & ors. Writ Petition (Civil) No. 8396 of 2009 holding as under:
"43. A proviso can be enacted by the legislature to serve several purposes. In Sundaram Pillai versus Patte Birman (1985) 1 SCC 591 the scope and purpose of a proviso and an explanation has been examined in detail. Normally, a proviso is meant to be an exception to something in the main enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. A proviso cannot be torn apart from the main enactment nor can it be used to qualify and set at naught, the object of the main enactment Sarthi on "Interpretation of Statutes", referred to in the said judgment, states that a proviso is subordinate to the main section and one of the principles which can be applied in a given case is that a proviso would not enlarge an enactment except for compelling reasons. It is unusual to import legislation from a proviso into the body of the statute. But in exceptional cases a proviso in itself may amount to a substantive provision. The proviso in the present cases is a guiding factor and not a substantive provision which overrides Section 8(1)(j) of the RTI Act. It does not undo or rewrite Section 8(1)(j) of the RTI Act and does not itself create any new right. The purpose is only to clarify that while deciding the question of larger public interest i.e., the question of balance between 'public interest in form of right to privacy' and 'public interest in access to information' is to be balanced."Page 3 of 4
In the instant case, it is evident that the Third party/s to whom the information relates, have objected to the disclosure of the information. The protection afforded by virtue of the exemption from disclosure enacted under Section 8(1) (j) of the RTI Act cannot be lifted or disturbed unless the petitioner is able to justify how such disclosure would be in 'public interest'. The appellant has not succeeded in establishing that the information sought is in larger public interest (a private dispute cannot be equated with public interest). It being so, the information is exempt under Section 8(1)(j) of the RTI Act.
The appeal is disposed of accordingly.
BASANT SETH Information Commissioner Authenticated true copy:
(R. L. Gupta) Dy. Registrar/Designated Officer Page 4 of 4