important high court decisions

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Equivalent Citation: AIR2008Mad224, 2008(1)CTC838, (2008)2MLJ733

IN THE HIGH COURT OF MADRAS

W.P. No. 35490 of 2007 and M.P. Nos. 1 and 2 of 2007

Decided On: 24.01.2008

Appellants: A.C. Sekar Vs.

Respondent: The Deputy Registrar of Co-operative Societies, The Special Officer, H.H. 517 Vettavalam Primary Agricultural Co-op Bank and G. Azhagammal

Hon'bleJudges: K. Chandru, J.

Counsels: For Appellant/Petitioner/Plaintiff: C. Prakasam, Adv.

For Respondents/Defendant: Bhavani Subbaroyan, AGP

Subject: Right to Information

Acts/Rules/Orders: Right to Information Act, 2005 - Sections 8(1), 11(3), 18(3), 19 and 19(3); Right to Information (Regulation of Fees and Cost) Rules, 2005

Cases Referred:

Diamond Jubilee Higher Secondary School rep. by its Secretary and Correspondent, Erode District v. Union of India rep. by Secretary, Ministry of Law, Justice and Co. Affairs, New Delhi and Ors. (2007) 3 MLJ 77; V.V. Mineral, regd. Firm through its Managing Partner, Tisaiyanvilai, Tirunelveli District v. Director of Geology and Mining, Chennai and Ors. 2007 (4) M.L.J. 394

Disposition: Petition dismissed

ORDER

K. Chandru, J.

1. Heard Mr. C. Prakasam, learned Counsel appearing for the petitioner and Mrs. Bhavani Subbaroyan, learned Additional Government Pleader representing the first respondent and perused the records.

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2. The petitioner is a salesman in the second respondent Bank and has filed the present writ petition against the direction given by the Deputy Registrar (first respondent) to the second respondent to furnish the information sought for by the third respondent. According to the petitioner, the third respondent's son was a member of the Marxist Party and was sending petitions to the higher officials as the petitioner had denied mamool to be given to him frequently. The said person, by name, Thirumoorthy, had sought for certain information under the Right to Information Act [for short, 'RTI Act']. On the basis of the request made by him, the said person was directed to pay Rs. 25,405/- towards the cost of furnishing the said information in terms of the Right to Information (Regulation of Fees and Cost) Rules, 2005. The said Thirumoorthy did not pursue his request. But, on the contrary, set up his mother the third respondent for getting the information, which was earlier sought for by her son. She also claimed that she comes below the poverty line and produced a certificate from the Executive Officer of the Town Panchayat, Vettavalam. Her request was conceded by the first respondent and accordingly, the second respondent Special Officer was directed to furnish the said information without insisting any payment. But the petitioner, aggrieved by the said direction, has come forward to file the present writ petition challenging the said direction.

3. Mr. C. Prakasam, learned Counsel appearing for the petitioner submitted that the third respondent had committed a fraud in producing a certificate stating that she belongs to below poverty line category even though her sons are working and she owns some land in the village. Further, she has been set up by her son, who made an application seeking for the very same information and when he was asked to pay a sum of Rs. 25,405/-, he did not pay the said amount and, therefore, on these grounds, no information should be furnished to the third respondent. Further, if such information was furnished, the Society will become poorer as the cost of furnishing such information has been worked out nearly to Rs. 25,000/- earlier. The information was also sought for to blackmail the employees working in the second respondent Society and, therefore, the same should not be furnished.

4. The information that was sought for by the third respondent was the details regarding the 7 ration shops run by the second respondent Society and the Sales Register maintained by the petitioner during the relevant period as well as the daily sales details, Stock Register and leave details of the petitioner for the relevant period. First of all, the communication that has been attacked by the petitioner is only an inter-office communication between the respondents 1 and 2 and the petitioner has no locus standi to challenge the same.

5. Inasmuch as the petitioner has been working in a shop in which the commodities of the public distribution system are being dealt with, the petitioner cannot claim any right of privacy if those details are furnished to any citizen, who seeks such an information. It is not as if the third respondent is a stranger to the institution from which the information is sought for. But rather she is a beneficiary and a consumer of the products sold to the public on a State subsidy and, therefore, she, as a citizen as well as a beneficiary of the consumer from the said shop, is entitled to seek the said information.

6. Considering the scope of the RTI Act, this Court by a judgment in Diamond Jubilee Higher Secondary School rep. By its Secretary and Correspondent, Erode District v. Union of India rep. by Secretary, Ministry of Law, Justice and Company Affairs, New Delhi and Ors. (2007) 3 MLJ 77 after referring to certain academic papers presented by distinguished persons, set forth the objects behind the enactment of the Act. Paragraph No. 8, which is relevant, reads as follows:

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8. In a lecture delivered by Dr. Justice A.R. Lakshmanan, the retired Judge of the Supreme Court on 19.8.2006 at Chennai, the learned Judge traced the History of Right to Information Act, 2005 in the following words:

This right traces its origin since 1948 March, when the United Nations convened a Conference in Geneva on the subject matter of freedom of information, that was attended by 54 countries which ultimately let the General Assembly of United Nations to declare the freedom of information a fundamental human right, and declaration was made on 10.12.1948. In 1960, the Economic and Social Council of the United Nations adopted a Declaration of Freedom of Information. Sweden became the first country in the world, to enact a provision for access to official information for its citizens. Many countries later adopted this principle and drafted legislations incorporating the same. Each individual shall have appropriate access to information concerning the decision making process. Effective access to judicial and administrative proceedings, including redress and remedy should be provided. The Right to Information Act, 2005 is a recognition of such Fundamental Rights making possible the participation of the people in the decision-making process in our democracy. Access to information on laws mandated Government services and Government expenses are fundamental for the people to hold Governments more accountable for their performance.

7. It must also be noted that no private information of the petitioner has been sought for and the information that is sought for is only relating to the public office held by the petitioner as sales person in the Society. This Court dealt with a similar claim made by a third party in relation to the direction given by the Officers under the RTI Act in the case relating to V.V. Mineral, regd. Firm through its Managing Partner, Tisaiyanvilai, Tirunelveli District v. Director of Geology and Mining, Chennai and Ors. 2007 (4) M.L.J. 394. Paragraphs 17 and 18 of the said order may be extracted below:

Para 17: Therefore, no total immunity can be claimed by any so-called third party. Further, if it is not a matter covered by Section 8(1)(d) of the Act, the question of any denial by the Information officer does not arise. Therefore, on appeal preferred by the petitioner, the first respondent held that it is not an issue covered by Section 8(1)(d) of the Act. If it is only covered by Section 8(1)(d) of the Act, the question of denial of information by the authority may arise.

Para 18: In any event, as contended by the learned Counsel for the petitioner that under Section 11(3) read with Section 19 of the RTI Act of the has not been given any notice as referred to above, a Second Appeal is provided under Section 19(3) to the State Information Commission. There is no whisper in the affidavit as to why the petitioner had not approached the State Commission as provided under the Act. In fact, the contention made in para 5 of the affidavit, is that there is no other efficacious remedy to the petitioner is contrary to the provisions of the Act. The Commission is a wider body and clothed with all the powers of a Civil Court under Section 8(3) of the RTI Act and therefore, it is misnomer to call it as a non-efficacious remedy.

8. As regards the motive attributed to the third respondent, it must be stated that such allegation has no relevance in furnishing of the information. In the very same V.V. Mineral's case (cited supra), this Court has noted in paragraph 19 as follows:

Para 19: If a person, who seeks for documents, is a business competitor and if any trade secret is sought for, then such document may be denied. But regarding a public document, if sought for by an individual whatever the motivation of such individual in seeking document has no

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relevancy as the Central RTI Act had not made any distinction between a citizen and a so-called motivated citizen. Hence, the submission in this regard has to fail.

9. Therefore, the attempt of the petitioner to thwart the direction issued by the first respondent cannot be countenanced by this Court. In fact, in these days, when there is an increasing allegation of misfeasance and malfeasance committed in fair price shops are coming to the notice of the public, the RTI Act can be potent weapon to check such illegal and criminal activities of the staff employed in those shops. If ultimately by furnishing of such information, the affairs of the Society can be brought to the attention of the authorities, who are in charge of supply of essential commodities, it can stem the tide of further rot into the system.

10. In view of the above, the writ petition is misconceived and devoid of merits. Accordingly, the same will stand dismissed. However, there will be no order as to costs. Connected Miscellaneous Petitions are closed.

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Equivalent Citation: 2006(3)KLT696

IN THE HIGH COURT OF KERALA

W.P. (C) No. 14686 of 2006


Appellants: Abdu Razak Vs.

Respondent: State of Kerala

Hon'bleJudges: K. Thankappan, J.

Counsels: For Appellant/Petitioner/Plaintiff: P.V. Surendranath and V.A. Abdul Jaleel, Advs.

For Respondents/Defendant: T.R. Ramachandran Nair, V.G. Arun, M. Ajay, Advs. and Thomaskutty M.A., Government Pleader

Subject: Civil

Acts/Rules/Orders: Kerala Co-operative Societies Act; Right to Information Act, 2005 - Sections 2, 3, 8 and 8(1); Constitution of India - Article 19

Disposition: Appeal allowed

JUDGMENT

K. Thankappan, J.

1. Petitioner has approached this Court for a direction to respondents 3 and 4 to issue necessary information to the petitioner as prayed for in Exts.P1 and P7 applications. The petitioner is an A class member of the 5th respondent Service Cooperative Bank, which is a Co-operative Society registered under the Kerala Cooperative Societies Act. He submitted an application before the 3rd respondent Society for obtaining certain information by way of copies of documents. Since there was no positive response from the 3rd respondent, the petitioner submitted similar application before the 4th respondent. Thereafter, the petitioner was informed that the required copies of the documents will not be furnished without the consent of the department. Therefore, the petitioner submitted a representation before the Assistant Registrar of Co-operative Societies and the Assistant Registrar directed the 3rd respondent to take steps to issue copies of the documents to the petitioner. According to the petitioner, even after the

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direction, there was no response from the 3rd respondent. Aggrieved by the inaction on the part of the 3rd respondent, the Writ Petition is filed.

2. The petitioner submits that as per the provisions of the Right to Information Act, 2005 (Act 22 of 2005), hereinafter referred to as 'the Act', he is entitled to obtain necessary information. The petitioner also submits that the inaction on the part of the 3rd respondent is a clear violation of petitioner's right under Section 3 of the Act and also the fundamental right guaranteed under Article 19 of the Constitution of India.

3. In the counter affidavit filed by the 4th respondent it is stated that item 3 related to the copies of minutes of various meetings of the Managing Committee and all the policy decisions relating to the administration of the Society were taken after discussion in the meetings of the committee and the Society was having business rivalry with other commercial banks. It is also stated that under Section 8 (1)(d) of the Act, there was no obligation to give any citizen information including commercial confidence, trade secrets, the disclosure of which would harm the competitive position of a third party. It is further stated that item 4 related to copy of reference file in respect of enquiry ordered and it was only available with the Assistant Registrar, Tirur. It is also stated that all details except items 3 and 4, could be issued on a proper application with prescribed fee.

4. Question to be decided in this Writ Petition is that, as per the provisions of the Act, the petitioner is entitled to obtain the information relates to items 3 and 4 or not.

5. By Ext.P7 the petitioner requested certain documents. Item No. 3 is the copies of minutes of various meetings of the Managing Committee held between 1-12-25 to 31-1-2006 and item No. 4 is the copy of reference file in respect of an enquiry ordered. The objection is that item 3 is the copies of minutes of various meetings of the Managing Committee and it is not conducive for the better interest of the bank to publicise the decisions taken in various meetings of the committee and under S.8(1)(d) of the Act there is no obligation to give any citizen information including commercial confidence, trade secrets, the disclosure of which would harm the competitive position of a third party and, therefore, the details cannot be issued as required for.

6. In order to ensure greater and more effective access to information, the Act was introduced for providing an effective frame work for effectuating the right of information recognized under Article 19 of the Constitution of India. The provisions ensure maximum disclosure and minimum exemptions, consistent with the constitutional provisions, and effective mechanism for access to information and disclosure by authorities. Democracy requires informed citizens and transparency of information. The Act provides for setting out Central Information Commission and State Information Commissions to promote transparency and accountability in the working of every public authority. Section 8 of the Act deals with exemption from disclosure of information. Section 8(1)(d) of the Act reads as follows:-

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.

Section 2(f) defines the term "information" which reads as "Information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a

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public authority under any other law for the time being in force." The information sought for under item No. 3 concerns the minutes of the Managing Committee meetings and it is not pertaining to the commercial confidence, trade secrets or intellectual property. Hence, the petitioner is entitled to obtain the information under item No. 3.

7. Item No. 4 is the copy of reference file in respect of an enquiry ordered by the Assistant Registrar of Co-operative Societies, Tirur. As per the counter affidavit filed by the 4th respondent, item No. 4 is available with the Assistant Registrar of Cooperative Societies, Tirur. For obtaining information under item No. 4, the petitioner has to make a request to the Assistant Registrar, Tirur.

8. In the above circumstances, the Writ Petition is allowed directing the 5th respondent bank to issue the information as prayed in Exts.P1 and P7, except item No. 4, to the petitioner on payment of the prescribed fee, as early as possible at any rate within 15 days from the date of receipt of copy of this judgment.

The Writ Petition is allowed as above.

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Equivalent Citation: AIR2008Guj42

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

Special Civil Application No. 23305 of 2007


Appellants: Ahmedabad Education Society and Anr. Vs.

Respondent: The Union of India (UOI) and 3 Ors.

Hon'bleJudges: D.N. Patel, J.

Counsels: For Appellant/Petitioner/Plaintiff: D.V. Parikh, Adv.

For Respondents/Defendant: N.V. Anjaria, Adv. for Respondent Nos. 2 and 3


Acts/Rules/Orders: Right to Information Act, 2005 - Sections 7, 7(7), 11, 11(1), 18, 18(3), 19 and 20; Civil Procedure Code (CPC), 1907 - Section 9

Cases Referred:

Reliance Industries Limited v. Gujarat State Information Commission and Ors. AIR 2007 Gujarat 203; Gokalbhai Nanbhai Patel v. Chief Information Commissioner and Ors. 2007(3) G.L.H. 352

JUDGMENT

D.N. Patel, J.

1. This writ petition has been preferred against the order dated 6th July,2007 passed by State Chief Information Commissioner in Complaint No. 1429 of 2006-07, whereby the petitioners who were not parties before the said authority, are directed to refund the fees under the Right to Information Act,2005 (hereinafter referred to as the Act,2005). Against this order, third party has preferred the present petition on the ground that the petitioners were not joined as parties in the proceedings before State Chief Information Commissioner and no opportunity of being heard was given and the direction has been given to the petitioners to refund fees to the original applicant i.e. to the present respondent No. 4, is dehors the provisions of the Act, 2005.

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2. Learned Counsel for the petitioners submitted that State Chief Information Commissioner has not properly appreciated the provisions of the Act,2005 especially Section 11 read with Section 7(7) of the Act nor the authorities below have properly appreciated the judgement delivered by this Court in the case of Reliance Industries Limited v. Gujarat State Information Commission and Ors. now, reported in AIR 2007 Gujarat 203 as well as against the decision rendered by this Court in the case of Gokalbhai Nanbhai Patel v. Chief Information Commissioner and Ors. now reported in 2007(3) G.L.H. 352. It is also submitted by learned Counsel for the petitioners that there is no power, jurisdiction and authority with the State Chief Information Commissioner to pass an order of refund of fees especially when an application is preferred under Section 18 of the Act,2005. He has also narrated the scope of power, jurisdiction and authority under Section 18 and 19 of the Act,2005. At length, reliance has been placed upon the decisions rendered by this Court as stated hereinabove and pointed out that without giving an opportunity of being heard to the petitioners, State Chief Information Commissioner has passed an order in respect of third party i.e. present petitioners, which is totally in defiance of the provisions of the Act,2005, and, hence, the order passed by State Chief Information Commissioner deserves to be quashed and set aside. The question about refund is a civil dispute and, therefore, this right can be settled under Section 9 of Code of Civil Procedure, 1907 by competent Civil Court and not under the Right to Information Act,2005. This aspect of the matter has not been appreciated by the State Chief Information Commissioner.

3. Learned Counsel for respondent Nos. 2 and 3 submitted that it is a fact that the present petitioners are not heard. Nonetheless, looking to the resolution passed by Gujarat University dated 20th May,2006, the fees was ordered to be refunded as the per the impugned order and the petitioners are running the college and are bound by the resolution passed by Gujarat University.

4. Respondent No. 4 has refused to accept the notice.

5. Having heard the learned Counsel for both the sides and looking to the facts and circumstances of the case, the order dated 6th July,2007 passed by State Chief Information Commissioner in Complaint No. 1429/2006-07 (Annexure G to the memo of the petition) deserves to be quashed and set aside, for the following facts and reasons:

(i) It appears from the facts of the case that the present respondent No. 4 has preferred a Complaint under Section 18 of the Right to Information Act, 2005. As per Section 18, the complaint can be preferred before the State Information Commission and Chief Information Commissioner can initiate an inquiry and can impose penalty as per Section 20 of the Act,2005. While holding inquiry, as per Section 18(3) of the Act,2005, State Chief Information Commissioner has been clothed with powers of the Civil Court under the Code of Civil Procedure,1908, in respect of summoning and enforcing the attendance of persons and compel them to give oral and written evidence on oath; requiring the discovery and inspection of documents; receiving evidence on affidavit; requisitioning any public record or copies thereof from any court or office. But so far as refund of fees is concerned, it is a matter to be decided by the Civil Court of competent jurisdiction under Code of Civil Procedure,1907. State Chief Information Commissioner has no power, jurisdiction and authority under the Act,2005 to pass an order of refund of the fees and, therefore, the impugned order deserves to be quashed and set aside.

(ii) Looking to the impugned order passed by State Chief Information Commissioner, it appears that though the order has been passed against the petitioners, they have not been joined as

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parties in the proceedings. No notice or summons were issued to the present petitioners. Thus, without giving an opportunity of being heard to the petitioners, the impugned order has been passed and, hence, the order deserves to be quashed and set aside.

(iii) It ought to be kept in mind by State Chief Information Commissioner that whenever any order has been passed against any person or institution, the same ought to be heard. This is a bare minimum requirement. In the facts of the present case, this bare minimum requirement of hearing, has not been complied with and a civil dispute has been decided by the State Chief Information Commissioner, as decided by this Court in the case of Gokalbhai Nanbhai Patel v. Chief Information Commissioner and Ors. now, reported in 2007(3) G.L.H. 352, especially in para 9(iv) and (v) as under:

(IV) Whenever any applicant is applying for getting any information about third party, such information shall be given by Public Information Officer under Section 7 of the Act,2005, only after following procedure prescribed under Section 11(1) of the Act,2005 and also keeping in mind Section 7(7) of the Act,2005. Here no such opportunity of hearing was given to the petitioner by Chief Information Commissioner.

(V) The concerned authorities have not properly appreciated that the present petitioner was never a party in the First Appeal as well as in the Second Appeal and the order has been passed against the petitioner. No notice was ever issued to the present petitioner and, therefore also, the impugned order deserves to be quashed and set aside. Chief Information Commissioner appears to be ignorant about aforesaid simple judicial process. Bare minimum requirement is, to follow principles of natural justice.

Similarly, it is held by this Court in the case of Reliance Industries Limited v. Gujarat State Information Commission and Ors. now, reported in AIR 2007 Gujarat 203, especially in para-12 thereof to the effect that whenever the State Information Commissioner is exercising power under Section 18 of the Act,2005, he has no authority and jurisdiction to pass an order for grant of information. In the facts of the present case, the petitioners are third party against whom the relief was sought for. No order has been passed by Public Information Officer nor by First Appellate Authority nor by Second Appellate Authority. Straightway an application has been preferred under Section 18 before the State Chief Information Commissioner. Looking to the provisions of Section 18 of the Act,2005, State Chief Information Commissioner can hold an inquiry and can impose penalty upon erring officer. No order can be passed against the third party otherwise right of first appeal as well as second appeal of third party will be taken away. Looking to the facts of the present case, it is clear that the State Chief Information Commissioner has exceeded his jurisdiction under the Act,2005.

(iv) Order passed without giving an opportunity of being heard, lead to arbitrariness. Arbitrariness and equality are sworn enemies of each other. Where arbitrariness is present, equality is always, absent and where equality is present, arbitrariness is absent. In the facts of this case, there is gross violation of principles of natural justice. Hence, the order is arbitrary and ,therefore, is violative of Article 14 of the Constitution of India.

6. In view of the aforesaid facts, reasons and judicial pronouncements, the impugned order dated 6th July,2007 passed by State Chief Information Commissioner in Complaint No. 1429 of 2006-07 is hereby quashed and set aside. Rule made absolute with no order as to costs.

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MANU/DE/8670/2007

IN THE HIGH COURT OF DELHI

WP(C) No. 3464 /2007


Appellants: Ajay Kumar Goel Vs.

Respondent: Central Information Commission and Ors.

Hon'bleJudges: S. Ravindra Bhat, J.

Counsels: For Appellant/Petitioner/Plaintiff: Ratika Mehrotra, Adv.

For Respondents/Defendant: K.K. Nigam, Adv. and Sanjeev Sabharwal, Adv. for MCD


Acts/Rules/Orders: Right to Information Act, 2005 - Sections 4(1), 18 and 20

Disposition: Petition dismissed

JUDGMENT

S. Ravindra Bhat, J.

1. The petitioner in these writ proceedings challenges the orders, including the order dated 6-11-2006 issued by the first respondent the Central Information Commission (hereafter called "CIC").

2. On 19-4-2004, this Court made in order in writ proceedings directing the Municipal Corporation of Delhi, to take steps to remove weekly bazaars held in residential areas. The petitioner wrote a letter to the Deputy Commissioner MCD of the concerned zone requesting the authorities to implement the orders of the Court and take steps to clear in such weekly markets in same residential colonies. He alleges that the MCD authorities never replied to this request. The petitioner thereforee applied under the Right to Information Act, 2005 (hereafter called "the Act") on 17-11-2005 seeking information about action taken by the MCD authorities upon his letter on the subject. He elicited specific information regarding day-to-day movement of the files dealing with his letter

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and the amounts collected by the MCD authorities from weekly bazaars. By letter dated 19-12-2005 the second respondent replied to the petitioners application providing information about amounts collected from weekly bazaars. It is alleged that however, information about status of his later of 24 April 2004, and date wise movement of the file was not provided. The MCD's position was that removal of weekly bazaars was a policy matter and could not be decided at the zonal level. Dissatisfied with the response obtained, the petitioner filed a complaint under Section 18 of the Act, with the CIC, alleging that the information given to him was in complete and misleading.

3. The CIC made an order on 23rd May 2006 directing the second respondent to supply the information sought by the petitioner and also to show cause why penalty under Section 20 of the Act should not be imposed on him, since the PIO was held to be in violation of the prescribed time-frame under Section 7. The second respondent did not show cause to the notice issued by the CIC; therefore the latter imposed a penalty of Rs. 250/- each day subject to a maximum of Rs. 25,000/-. It is alleged that these orders were disobeyed; the petitioner was constrained to prefer a review proceeding, before the CIC requesting it to define the time frame for compliance of its orders and also seeking initiation of disciplinary proceedings against the second respondent. This application was made on 26-6-2006. The CIC, on 9-8-2006 issued a direction to the third respondent Commissioner of MCD to appear in person before it on 18-8-2006 and to show cause why he should not be prosecuted for non-compliance with directions, under Section 20 of the Act.

4. Two hearings were held by the CIC, on 18-8-2006 and 26-8-2006. The petitioner's grievance here is that the proceedings were silent regarding the contempt committed by the Commissioner MCD. It is also alleged that the MCD officials failed to provide any reason why the CIC's order of 5-6-2006 was not complied with.

5. On 7-9-2006, the MCD replied to the petitioner that the information sought by him could not be provided as the files concerning the question were untraceable. It was also informed that the concerned official had retired and that records of that period had been seized by the Central Bureau of Investigation, [ hereafter "CBI"]. The relevant extract of that reply reads as follows:

Point No. 1 and 2

The impugned application of Shri Ajay Kumar Goel dated 27-4-2004 was received in the Office of the then Deputy Commissioner Shahdara (South) Zone Shri D.R. Tamta on 28-4-2004 and the same was sent to the concerned Licensing Inspector to the hierarchy of Assistant Commissioner, Administrative Officer and Zonal Superintendent. The then Licensing Inspector Shri. V.P. Scott has retired from the Municipal Service. From the available records In the Licensing branch, the whereabouts and the movements of the application dated 27-4-2004 is not traceable. It is however, informed by the present staff of the Licensing branch that certain records of that period had been seized by the CBI in connection with some inquiry. In the absence of non-availability of relevant record/file, it is not possible to indicate just what action has been taken on the letter in question received from the applicant and the movement thereof.

6. On 6-11-2006, the CIC made the impugned order closing the matter and rejecting the review petition. The order reads as follows:

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ORDER

The appellant has submitted that MCD has not supplied information relating to whereabouts of his letter and movement of the file. From the letter of MCD, it appears that the concerned inspector dealing with the matter has since retired and the movement of the application dated 27-4-2004 is not traceable. MCD has also stated that the CBI, in connection with an inquiry, has ceased certain records of that period. Double and finds that the information given is incomplete, and MCD on the other hand fields that they had given what they have. CIC naturally can neither enter into it judging the adequacy of the information supplied provided that all information available has indeed been so supplied, not cause an inquiry or devise and mechanism to trace what is claimed to be not traceable. We do, however, urge upon the public authority, in this case the MCD to maintain their data in such a manner so as to facilitate access to information to the citizen, which is mandated under Section 4(1) of the Act, but even such a direction can admittedly be prospective rather than retrospective.

In regard to the other matter about which the apple and has expressed his unhappiness is regarding applicability of a High Court order. MCD feels that the High Court order in question is applicable only within the residential precincts of Naraina Vihar. On the other hand the apple and feels that this order is applicable throughout Delhi. This Commission naturally cannot give an interpretation to an order of the Hon'ble High Court about its applicability.

Under these circumstances, the review petition is without merit and hence not maintainable....

7. Ms. Ratika Mehrotra, learned Counsel, besides reiterating the grounds urged in the petition, submitted that unavailability of records should not have been treated as a legitimate excuse for withholding information. The CIC should have directed MCD to fix responsibility and punish the guilty officers. The MCD could also have been directed MCD to reconstruct the file and provided it to the petitioner. The failure of CIC to issue such directions caused immense prejudice; besides it undermines the letter and spirit of the Act. It was submitted that instead of accepting the lame excuse of MCD, the CIC ought to have appreciated that the Explanationn pointed to deliberate destruction of the record to prevent the petitioner from accessing information, which amounted to an offence under the Act.

8. Ms. Mehrotra next submitted that the CIC failed in its duty to reasonably ensure that complete and full information was furnished to the petitioner. This duty, it was alleged was reinforced by Section 18 and Section 20. Counsel submitted that the adequacy, relevance and correctness of the information supplied by a public authority has to be ensured by the CIC, constituted as the highest body under the Act. Instead, the CIC accepted the excuse of the MCD and closed the matter. In doing so, it fell into grave error of law.

9. Counsel for MCD submitted that the main information sought by the petitioner concerned action taken on the letter for implementation of the High Court's decision. However the CIC proceeded on the assumption that information had not been supplied within the time, reckoning the date of submission of application by the petitioner has 17-11-2005. This date was in dispute since the Central Principal Information Officer had

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shown receipt of documents indicating that the application was received in the office on 23-11-2005. On this, the CIC was satisfied that information had been supplied within the time. The order dated the 25-8-2006, it was submitted, recorded in some detail the various steps taken in the previous proceedings. Initially, notices issued to the MCD had not been made available to it; thereforee it was unrepresented in the proceeding. On receiving the notice to show cause, a review petition was filed by the CPIO, which was dealt with on 25-8-2006. After satisfying itself that the MCD had not withheld information the CIC correctly closed the proceedings.

10. The above narrative would show that the main dispute is not as much about the content of information sought; it is about the response of the MCD in 2004, when the petitioner allegedly wrote a letter seeking information about implementation of an order of this Court. This aspect is of some relevance, because at that stage the Act had not been brought into force. Since there is some dispute about whether the petitioner had in fact made the application on the date he is urged to have made - as the MCD alleges that it was received sometime later in November 2005, the question of a delayed response is essentially one of fact. On this issue, it would be not appropriate for this Court, in writ jurisdiction, to examine the record and substitute the findings of the CIC, which is the competent tribunal invested with the authority to decide factual disputes.

11. The other issue is whether the CIC acted in error of law, in proceeding as it did, while accepting the Explanation of the MCD regarding the unavailability of the files. There cannot be any dispute that the MCD as a public authority, is under an undeniable duty to maintain its records to best facilitate access to those wishing it. Nevertheless the MCD explained why the day to day movement the files could not be indicated to the petitioner. Its Explanation was that the concerned official had retired and the files were missing. The other reason given was that the CBI had seized certain files. These facts are within the peculiar knowledge of the MCD. In the absence of any allegation of ill will or personal malice, it would be difficult to support the petitioners submission that the MCD deliberately suppressed information from him. If one sees the fact that the main concern held out by him, i.e. implementation of court orders had been redressed, the grievance about why a letter written two years before the application had not been allegedly attended, is of not equal importance.

12. As regards the view expressed by the CIC, that its jurisdiction did not extend to interpreting court orders, in my considered view, no exception can be taken in that regard. The CIC cannot be asked to interpret such orders as they do not fall within its normal functioning. It is not charged with the duty of implementing such court orders. One could have understood the MCD proceeding and giving an interpretation - right or wrong - which could have been the subject matter of proceedings before this Court. However the limited mandate conferred upon the CIC is to ensure the provisions of the Act for supply of information to concerned applicants are dealt with and wherever required, implemented, according to law. If this perspective were kept in mind, as was properly done by the CIC in this case, there can be no score for grievance.

14. In view of the findings indicated above, there is no merit in this writ petition. It is, accordingly, dismissed without any order on costs.

*******

Government of India Ministry of Commerce & Industry

Department of Commerce (RTI Cell)

*****

CONSTITUTION OF APPELLATE COMMITTEE UNDER RTI ACT, 2005, IN THE DEPARTMENT OF COMMERCE

(i) Mrs. Vijaylaxmi Joshi, - Chairperson Joint Secretary, Department of Commerce, Room No.240, Udyog Bhawan, Maulana Azad Road, New Delhi 110107. Phone No. 23061377 (ii) Shri Siddharth, Joint Secretary (RTI). - Member (iii) Additional Secretary/Joint Secretary. - Member (being Officer Senior to CPIO whom the appeal pertains to) (iv) Smt. Kalpana Narain, Director (RTI). - Member-Secretary (Coordinating CPIO)

(As on 14th January, 2011 ) File No.R-16(1)/2010-RTI

ssatishraoNotehttp://commerce.nic.in/aboutus/right_to_info/rti_appellate_particulars.pdf

1

Equivalent Citation: 146(2008)DLT385


WP(C) No. 3114/2007


Appellants: Bhagat Singh Vs.

Respondent: Chief Information Commissioner and Ors.

Hon'bleJudges: S. Ravindra Bhat, J.

Counsels: For Appellant/Petitioner/Plaintiff: Girija Varma, Adv. and Party-in-Person

For Respondents/Defendant: Sonia Mathur, Adv. for R-2 and 3


Acts/Rules/Orders: Right to Information Act, 2005 - Sections 3, 8, 8(1), 10 and 20; Income Tax Act, 1961 - Sections 131, 143(2) and 148; Constitution of India - Article 19(1)

Cases Referred:

Nathi Devi v. Radha Devi Gupta 2005 (2) SCC 201; B.R. Kapoor v. State of Tamil Nadu 2001 (7) SCC 231; V. Tulasamma v. Sesha Reddy 1977 (3) SCC 99

Disposition: Petition allowed

JUDGMENT


1. The Petitioner in the present writ proceeding approaches this Court seeking partial quashing of an order of the Central Information Commission and also for a direction from this Court that the information sought by him under the Right to Information Act, 2005 (hereinafter referred to as 'the Act') should be supplied with immediate effect.

2. The facts relevant to decide the case are as follows. The petitioner was married in 2000 to Smt. Saroj Nirmal. In November 2000 she filed a criminal complaint alleging that she had spent/paid as dowry an amount of Rs. Ten Lakhs. Alleging that these claims were false, the

2

Petitioner, with a view to defend the criminal prosecution launched against him, approached the Income Tax Department with a tax evasion petition (TEP) dated 24.09.2003. Thereafter, in 2004 the Income Tax Department summoned the Petitioner's wife to present her case before them. Meanwhile, the Petitioner made repeated requests to the Director of Income Tax (Investigation) to know the status of the hearing and TEP proceedings. On failing to get a response from the second and third Respondents, he moved an application under the Act in November, 2005. He requested for the following information:

(i) Fate of Petitioner's complaint (tax evasion petition) dated 24.09.2003

(ii) What is the other source of income of petitioner's wife Smt. Saroj Nimal than from teaching as a primary teacher in a private school '

iii)What action the Department had taken against Smt. Saroj Nimal after issuing a notice u/s 131 of the Income 'tax Act, 1961, pursuant to the said Tax Evasion Petition.

3. The application was rejected by the second Respondent (the Public Information Officer, designated under the Act by the Income Tax department) on 10th January 2006 under Section 8(1) of the Act, by reasoning that the information sought was personal in nature, relating to dowry and did not further public interest. The relevant portion of this provision is extracted below:

Exemption from Disclosure of Information: (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen.

XXXXXXXXXXXXX

(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 justices the disclosure of such information.

4. The petitioner, thereafter, appealed to third Respondent- the Appellate Authority which too rejected his request to access the information. While doing so, not only did he reiterate section 8(1)(j) as a ground for rejection but also observed that the information sought could also be denied under Section 8(1)(h), which is reproduced below:

(h) information which would impede the process of investigation or apprehension or prosecution of offenders

5. Against the order of the Appellate Authority, the petitioner filed a second Appeal on 1st March, 2006, before the Respondent No. 1, the Central Information Commission (hereafter 'the CIC') praying for setting aside the Orders of Respondent No. 2 and 3. The petitioner sought the following reliefs:

a) issue directions to Respondent No. 2 and 3 to furnish information,

b) to order an inquiry against Respondent's No. 2 and 3 for not implementing the Right to Information Act properly

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3

c) to impose penalties and disciplinary action against Respondent No. 2 and 3 under Section 20 of the RTI Act and

d) to award cost of proceedings to be recovered from Respondent No. 2and3.

6. The CIC, on 8th May 2006 allowed the second appeal and set aside the rejection of information, and the exemption Clause 8(1) (j) cited by Respondents No. 2and3. The CIC further held that-

as the investigation on TEP has been conducted by DIT (Inv), the relevant report is the outcome of public action which needs to be disclosed. This, therefore, cannot be exempted u/s 8(1) (j) as interpreted by the appellate authority. Accordingly, DIT (Inv) is directed to disclose the report as per the provision u/s 10(1) and (2), after the entire process of investigation and tax recovery, if any, is complete in every respect.

7. The Petitioner contends that the first Respondent was correct in allowing disclosure of information, by holding that Sections 8(1)(j) did not justify withholding of the said information, but incorrectly applied Sec 8(1) (h) of the Act. He submits that the disclosure of the said information could not in any way impede the investigation process and that the Respondents have not given any reasons as to how such disclosure would hamper investigation. On the other hand, he contends, the information would only help in absolving himself from the false prosecution and criminal harassment. Moreover, he contends that under Section 10 of the Act non-exempt information could have been provided to him after severing it from the exempt information. He in fact applied to the second and third respondent under the aforesaid provision but was informed that the matter was still under investigation.

8. In August 2006 the petitioner filed a contempt petition before the CIC for non compliance of order dated 8th May 2006. Pursuant to this, the CIC asked the second and third respondent to take necessary action. The Petitioner also wrote a letter to the Chief Information Commissioner, seeking his indulgence for compliance of impugned order dated 8th May 2006. Pursuant to this, the first Respondent issued a notice to the other Respondents asking for comments with respect to non-compliance of the order and to show cause as to why a penalty should not be imposed as per Section 20 of the Act. On 15th February, 2007, the Petitioner again appealed to the first Respondent requesting him to impose penalties on the concerned officer of Income Tax Department (Investigation) for non compliance of the order of the Central Information Commission.

9. The petitioner in this writ petition requests this Court to partially quash the order of the first Respondent dated 8th May 2006 in so far as it directs disclosure after the entire process of investigation and tax recovery is completed; to direct the other respondents to forthwith supply the information sought; to direct the CIC to impose penalties under Section 20 and to compensate him for damages suffered due to non supply of information. It was urged that the CIC, after appreciating that there was no merit in the plea regarding applicability of Section 8(1)(h), and being satisfied, should have not imposed the condition regarding completion of proceedings, which could take years. Such power to restrict the access to information did not exist under the Act.

10. The second and third respondents, pursuant to an order of this Court aver that the Petitioner misconstrued letters sent by the Income Tax officer and the Director General of Income Tax in relation to the fact that the investigations are complete. They submit that although there was a preliminary investigation undertaken by the Income Tax officer, Delhi and a report was

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4

submitted pursuant to that, the Assessing officer has issued notices under section 148 of the Income Tax Act, 1961 and the investigation and procedures under the assessing Officer are yet to be completed. Learned Counsel Sonia Mathur, appearing on behalf of the Respondents submitted that, as per the directions of the CIC, the information sought would be supplied after 31st March 2008, after completion of investigation and recovery.

11. The Universal Declaration of Human Rights, adopted by the United Nations in 1948, assures, by Article 19, everyone the right, 'to seek, receive and impart information and ideas through any media, regardless of frontiers'. In Secretary Ministry of Information and Broadcasting, Govt. of India and Orsv. Cricket Association of Bengal and Ors. 1995 (2) SCC 161] the Supreme Court remarked about this right in the following terms:

The right to freedom of speech and expression includes the right to receive and impart information. For ensuring the free speech right of the citizens of this country, it is necessary that the citizens have the benefit of plurality of views and a range of opinions on all public issues. A successful democracy posits an 'aware' citizenry. Diversity of opinions, views, ideas and ideologies is essential to enable the citizens to arrive at informed judgment on all issues touching them.

This right, to information, was explicitly held to be a fundamental right under Article 19(1)(a) of the Constitution of India for the first time by Justice KK Mathew in State of UP v. Raj Narain, MANU/SC/0032/1975. This view was followed by the Supreme Court on a number of decisions and after public demand, the Right to Information Act, 2005 was enacted and brought into force.

12. The Act is an effectuation of the right to freedom of speech and expression. In an increasingly knowledge based society, information and access to information holds the key to resources, benefits, and distribution of power. Information, more than any other element, is of critical importance in a participatory democracy. By one fell stroke, under the Act, the maze of procedures and official barriers that had previously impeded information, has been swept aside. The citizen and information seekers have, subject to a few exceptions, an overriding right to be given information on matters in the possession of the state and public agencies that are covered by the Act. As is reflected in its preambular paragraphs, the enactment seeks to promote transparency, arrest corruption and to hold the Government and its instrumentalities accountable to the governed. This spirit of the Act must be borne in mind while construing the provisions contained therein.

13. Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right itself. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8(1)(h) and other such provisions would become the haven for dodging demands for information.

14. A rights based enactment is akin to a welfare measure, like the Act, should receive a liberal interpretation. The contextual background and history of the Act is such that the exemptions, outlined in Section 8, relieving the authorities from the obligation to provide information,

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5

constitute restrictions on the exercise of the rights provided by it. therefore, such exemption provisions have to be construed in their terms; there is some authority supporting this view ( See Nathi Devi v. Radha Devi Gupta 2005 (2) SCC 201; B. R. Kapoor v. State of Tamil Nadu MANU/SC/0578/2001and V. Tulasamma v. Sesha Reddy MANU/SC/0380/1977. Adopting a different approach would result in narrowing the rights and approving a judicially mandated class of restriction on the rights under the Act, which is unwarranted.

14. In the present case, the orders of the three respondents do not reflect any reasons, why the investigation process would be hampered. The direction of the CIC shows is that the information needs to be released only after the investigation and recovery in complete. Facially, the order supports the petitioner's contention that the claim for exemption made by respondent Nos. 2 and 3 are untenable. Section 8(1)(j) relates only to investigation and prosecution and not to recovery. Recovery in tax matters, in the usual circumstances is a time consuming affair, and to withhold information till that eventuality, after the entire proceedings, despite the ruling that investigations are not hampered by information disclosure, is illogical. The petitioner's grouse against the condition imposed by the CIC is all the more valid since he claims it to be of immense relevance, to defend himself in criminal proceedings. The second and third respondents have not purported to be aggrieved by the order of CIC as far as it directs disclosure of materials; nor have they sought for its review on the ground that the CIC was misled and its reasoning flawed. thereforee, it is too late for them to contend that the impugned order contains an erroneous appreciation of facts. The materials available with them and forming the basis of notice under the Income Tax act is what has to be disclosed to the petitioner, i.e the information seeker.

15. As to the issue of whether the investigation has been complete or not, I think that the authorities have not applied their mind about the nature of information sought. As is submitted by the Petitioner, he merely seeks access to the preliminary reports investigation pursuant to which notices under Sections 131, 143(2), 148 of the Income Tax have been issued and not as to the outcome of the investigation and reassessment carried on by the Assessing Officer. As held in the preceding part of the judgment, without a disclosure as to how the investigation process would be hampered by sharing the materials collected till the notices were issued to the assesse, the respondents could not have rejected the request for granting information. The CIC, even after overruling the objection, should not have imposed the condition that information could be disclosed only after recovery was made.

16. In view of the foregoing discussion the order of the CIC dated 8th May 2006 in so far as it withholds information until tax recovery orders are made, is set aside. The second and third respondents are directed to release the information sought, on the basis of the materials available and collected with them, within two weeks.

17. This Court takes a serious note of the two year delay in releasing information, the lack of adequate reasoning in the orders of the Public Information Officer and the Appellate Authority and the lack of application of mind in relation to the nature of information sought. The materials on record clearly show the lackadaisical approach of the second and third respondent in releasing the information sought. However, the Petitioner has not been able to demonstrate that they malafidely denied the information sought. therefore, a direction to the Central Information Commission to initiate action under Section 20 of the Act, cannot be issued.

18. The writ petition is allowed in the above terms. In the peculiar circumstances of the cases, there shall be no order on costs.

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WP(C) No. 3114/2007




Hon'ble Judges: S. Ravindra Bhat, J.





Cases Referred: Nathi Devi v. Radha Devi Gupta 2005 (2) SCC 201; B.R. Kapoor v. State of Tamil Nadu 2001 (7) SCC 231; V. Tulasamma v. Sesha Reddy 1977 (3) SCC 99


JUDGMENT



2. The facts relevant to decide the case are as follows. The petitioner was married in 2000 to Smt. Saroj Nirmal. In November 2000 she filed a criminal complaint alleging that she had spent/paid as dowry an amount of Rs. Ten Lakhs. Alleging that these claims were false, the Petitioner, with a view to defend the criminal prosecution launched against him, approached the Income Tax Department with a tax evasion petition (TEP) dated 24.09.2003. Thereafter, in 2004 the Income Tax Department summoned the Petitioner's wife to present her case before them. Meanwhile, the Petitioner made repeated requests to the Director of Income Tax (Investigation) to know the status of the hearing and TEP proceedings. On failing to get a response from the second and third Respondents, he moved an application under the Act in November, 2005. He requested for the following information:






XXXXXXXXXXXXX


javascript:fnOpenGlobalPopUp('/ba/disp.asp','55488','1');










7. The Petitioner contends that the first Respondent was correct in allowing disclosure of information, by holding that Sections 8(1)(j) did not justify withholding of the said information, but incorrectly applied Sec 8(1)

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(h) of the Act. He submits that the disclosure of the said information could not in any way impede the investigation process and that the Respondents have not given any reasons as to how such disclosure would hamper investigation. On the other hand, he contends, the information would only help in absolving himself from the false prosecution and criminal harassment. Moreover, he contends that under Section 10 of the Act non-exempt information could have been provided to him after severing it from the exempt information. He in fact applied to the second and third respondent under the aforesaid provision but was informed that the matter was still under investigation.



10. The second and third respondents, pursuant to an order of this Court aver that the Petitioner misconstrued letters sent by the Income Tax officer and the Director General of Income Tax in relation to the fact that the investigations are complete. They submit that although there was a


preliminary investigation undertaken by the Income Tax officer, Delhi and a report was submitted pursuant to that, the Assessing officer has issued notices under section 148 of the Income Tax Act, 1961 and the investigation and procedures under the assessing Officer are yet to be completed. Learned Counsel Sonia Mathur, appearing on behalf of the Respondents submitted that, as per the directions of the CIC, the information sought would be supplied after 31st March 2008, after completion of investigation and recovery.



This right, to information, was explicitly held to be a fundamental right under Article 19(1)(a) of the Constitution of India for the first time by Justice KK Mathew in State of UP v. Raj Narain, (1975) 4 SCC 428. This view was followed by the Supreme Court on a number of decisions and after public demand, the Right to Information Act, 2005 was enacted and brought into force.

12. The Act is an effectuation of the right to freedom of speech and expression. In an increasingly knowledge based society, information and access to information holds the key to resources, benefits, and distribution of power. Information, more than any other element, is of critical importance in a participatory democracy. By one fell stroke, under the Act, the maze of procedures and official barriers that had previously impeded information, has been swept aside. The citizen and information seekers have, subject to a few exceptions, an overriding right to be given information on matters in the possession of the state and public agencies that are covered by the Act. As is


reflected in its preambular paragraphs, the enactment seeks to promote transparency, arrest corruption and to hold the Government and its instrumentalities accountable to the governed. This spirit of the Act must be borne in mind while construing the provisions contained therein.


14. A rights based enactment is akin to a welfare measure, like the Act, should receive a liberal interpretation. The contextual background and history of the Act is such that the exemptions, outlined in Section 8, relieving the authorities from the obligation to provide information, constitute restrictions on the exercise of the rights provided by it. Therefore, such exemption provisions have to be construed in their terms; there is some authority supporting this view ( See Nathi Devi v. Radha Devi Gupta 2005 (2) SCC 201; B. R. Kapoor v. State of Tamil Nadu 2001 (7) SCC 231 and V. Tulasamma v. Sesha Reddy 1977 (3) SCC 99). Adopting a different approach would result in narrowing the rights and approving a judicially mandated class of restriction on the rights under the Act, which is unwarranted.

14. In the present case, the orders of the three respondents do not reflect any reasons, why the investigation process would be hampered. The direction of the CIC shows is that the information needs to be released only after the investigation and recovery in complete. Facially, the order supports the petitioner's contention that the claim for exemption made by respondent Nos. 2 and 3 are untenable. Section 8(1)(j) relates only to investigation and prosecution and not to recovery. Recovery in tax matters, in the usual


circumstances is a time consuming affair, and to withhold information till that eventuality, after the entire proceedings, despite the ruling that investigations are not hampered by information disclosure, is illogical. The petitioner's grouse against the condition imposed by the CIC is all the more valid since he claims it to be of immense relevance, to defend himself in criminal proceedings. The second and third respondents have not purported to be aggrieved by the order of CIC as far as it directs disclosure of materials; nor have they sought for its review on the ground that the CIC was misled and its reasoning flawed. Therefore, it is too late for them to contend that the impugned order contains an erroneous appreciation of facts. The materials available with them and forming the basis of notice under the Income Tax act is what has to be disclosed to the petitioner, i.e the information seeker.

15. As to the issue of whether the investigation has been complete or not, I think that the authorities have not applied their mind about the nature of information sought. As is submitted by the Petitioner, he merely seeks access to the preliminary reports investigation pursuant to which notices under Sections 131, 143(2), 148 of the Income Tax have been issued and not as to the outcome of the investigation and reassessment carried on by the Assessing Officer. As held in the preceding part of the judgment, without a disclosure as to how the investigation process would be hampered by sharing the materials collected till the notices were issued to the assesse, the respondents could not have rejected the request for granting information. The CIC, even after overruling the objection, should not have imposed the condition that information could be disclosed only after recovery was made.

16. In view of the foregoing discussion the order of the CIC dated 8th May 2006 in so far as it withholds information until tax recovery orders are made, is set aside. The second and third respondents are directed to release the information sought, on the basis of the materials available and collected with them, within two weeks.

17. This Court takes a serious note of the two year delay in releasing information, the lack of adequate reasoning in the orders of the Public Information Officer and the Appellate Authority and the lack of application of mind in relation to the nature of information sought. The materials on record clearly show the lackadaisical approach of the second and third respondent in releasing the information sought. However, the Petitioner has not been able to demonstrate that they malafidely denied the information


sought. Therefore, a direction to the Central Information Commission to initiate action under Section 20 of the Act, cannot be issued.

18. The writ petition is allowed in the above terms. In the peculiar circumstances of the cases, there shall be no order on costs.

(S. RAVINDRA BHAT) JUDGE 3RD December, 2007.



WP(C) No. 3114/2007




Hon'ble Judges: S. Ravindra Bhat, J.





Cases Referred: Nathi Devi v. Radha Devi Gupta 2005 (2) SCC 201; B.R. Kapoor v. State of Tamil Nadu 2001 (7) SCC 231; V. Tulasamma v. Sesha Reddy 1977 (3) SCC 99


JUDGMENT



2. The facts relevant to decide the case are as follows. The petitioner was married in 2000 to Smt. Saroj Nirmal. In November 2000 she filed a criminal complaint alleging that she had spent/paid as dowry an amount of Rs. Ten Lakhs. Alleging that these claims were false, the Petitioner, with a view to defend the criminal prosecution launched against him, approached the Income Tax Department with a tax evasion petition (TEP) dated 24.09.2003. Thereafter, in 2004 the Income Tax Department summoned the Petitioner's wife to present her case before them. Meanwhile, the Petitioner made repeated requests to the Director of Income Tax (Investigation) to know the status of the hearing and TEP proceedings. On failing to get a response from the second and third Respondents, he moved an application under the Act in November, 2005. He requested for the following information:






XXXXXXXXXXXXX












7. The Petitioner contends that the first Respondent was correct in allowing disclosure of information, by holding that Sections 8(1)(j) did not justify withholding of the said information, but incorrectly applied Sec 8(1)


(h) of the Act. He submits that the disclosure of the said information could not in any way impede the investigation process and that the Respondents have not given any reasons as to how such disclosure would hamper investigation. On the other hand, he contends, the information would only help in absolving himself from the false prosecution and criminal harassment. Moreover, he contends that under Section 10 of the Act non-exempt information could have been provided to him after severing it from the exempt information. He in fact applied to the second and third respondent under the aforesaid provision but was informed that the matter was still under investigation.



10. The second and third respondents, pursuant to an order of this Court aver that the Petitioner misconstrued letters sent by the Income Tax officer and the Director General of Income Tax in relation to the fact that the investigations are complete. They submit that although there was a


preliminary investigation undertaken by the Income Tax officer, Delhi and a report was submitted pursuant to that, the Assessing officer has issued notices under section 148 of the Income Tax Act, 1961 and the investigation and procedures under the assessing Officer are yet to be completed. Learned Counsel Sonia Mathur, appearing on behalf of the Respondents submitted that, as per the directions of the CIC, the information sought would be supplied after 31st March 2008, after completion of investigation and recovery.



This right, to information, was explicitly held to be a fundamental right under Article 19(1)(a) of the Constitution of India for the first time by Justice KK Mathew in State of UP v. Raj Narain, (1975) 4 SCC 428. This view was followed by the Supreme Court on a number of decisions and after public demand, the Right to Information Act, 2005 was enacted and brought into force.

12. The Act is an effectuation of the right to freedom of speech and expression. In an increasingly knowledge based society, information and access to information holds the key to resources, benefits, and distribution of power. Information, more than any other element, is of critical importance in a participatory democracy. By one fell stroke, under the Act, the maze of procedures and official barriers that had previously impeded information, has been swept aside. The citizen and information seekers have, subject to a few exceptions, an overriding right to be given information on matters in the possession of the state and public agencies that are covered by the Act. As is


reflected in its preambular paragraphs, the enactment seeks to promote transparency, arrest corruption and to hold the Government and its instrumentalities accountable to the governed. This spirit of the Act must be borne in mind while construing the provisions contained therein.


14. A rights based enactment is akin to a welfare measure, like the Act, should receive a liberal interpretation. The contextual background and history of the Act is such that the exemptions, outlined in Section 8, relieving the au

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