REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO.34868 OF 2009

Khanapuram Gandaiah ... Petitioner

Vs.

Administrative Officer & Ors. ... Respondents

ORDER

1. This special leave petition has been filed against the judgment and

order dated 24.4.2009 passed in Writ Petition No.28810 of 2008 by the High

Court of Andhra Pradesh by which the writ petition against the order of

dismissal of the petitioner's application and successive appeals under the

Right to Information Act, 2005 (hereinafter called the "RTI Act") has been

dismissed. In the said petition, the direction was sought by the Petitioner to

the Respondent No.1 to provide information as asked by him vide his

application dated 15.11.2006 from the Respondent No.4 - a Judicial Officer

as for what reasons, the Respondent No.4 had decided his Miscellaneous

Appeal dishonestly.

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2. The facts and circumstances giving rise to this case are, that the

petitioner claimed to be in exclusive possession of the land in respect of

which civil suit No.854 of 2002 was filed before Additional Civil Judge,

Ranga Reddy District praying for perpetual injunction by Dr. Mallikarjina

Rao against the petitioner and another, from entering into the suit land.

Application filed for interim relief in the said suit stood dismissed. Being

aggrieved, the plaintiff therein preferred CMA No.185 of 2002 and the same

was also dismissed. Two other suits were filed in respect of the same

property impleading the Petitioner also as the defendant. In one of the suits

i.e. O.S. No.875 of 2003, the Trial Court granted temporary injunction

against the Petitioner. Being aggrieved, Petitioner preferred the CMA No.67

of 2005, which was dismissed by the Appellate Court - Respondent No.4

vide order dated 10.8.2006.

3. Petitioner filed an application dated 15.11.2006 under Section 6 of the

RTI Act before the Administrative Officer-cum-Assistant State Public

Information Officer (respondent no.1) seeking information to the queries

mentioned therein. The said application was rejected vide order dated

23.11.2006 and an appeal against the said order was also dismissed vide

order dated 20.1.2007. Second Appeal against the said order was also

3

dismissed by the Andhra Pradesh State Information Commission vide order

dated 20.11.2007. The petitioner challenged the said order before the High

Court, seeking a direction to the Respondent No.1 to furnish the information

as under what circumstances the Respondent No.4 had passed the Judicial

Order dismissing the appeal against the interim relief granted by the Trial

Court. The Respondent No.4 had been impleaded as respondent by name.

The Writ Petition had been dismissed by the High Court on the grounds that

the information sought by the petitioner cannot be asked for under the RTI

Act. Thus, the application was not maintainable. More so, the judicial

officers are protected by the Judicial Officers' Protection Act, 1850

(hereinafter called the "Act 1850"). Hence, this petition.

4. Mr. V. Kanagaraj, learned Senior Counsel appearing for the petitioner

has submitted that right to information is a fundamental right of every

citizen. The RTI Act does not provide for any special protection to the

Judges, thus petitioner has a right to know the reasons as to how the

Respondent No. 4 has decided his appeal in a particular manner. Therefore,

the application filed by the petitioner was maintainable. Rejection of the

application by the Respondent No. 1 and Appellate authorities rendered the

petitioner remediless. Petitioner vide application dated 15.11.2006 had asked

4

as under what circumstances the Respondent No.4 ignored the written

arguments and additional written arguments, as the ignorance of the same

tantamount to judicial dishonesty, the Respondent No.4 omitted to examine

the fabricated documents filed by the plaintiff; and for what reason the

respondent no.4 omitted to examine the documents filed by the petitioner.

Similar information had been sought on other points.

5. At the outset, it must be noted that the petitioner has not challenged

the order passed by the Respondent No. 4. Instead, he had filed the

application under Section 6 of the RTI Act to know why and for what

reasons Respondent No. 4 had come to a particular conclusion which was

against the petitioner. The nature of the questions posed in the application

was to the effect why and for what reason Respondent No. 4 omitted to

examine certain documents and why he came to such a conclusion.

Altogether, the petitioner had sought answers for about ten questions raised

in his application and most of the questions were to the effect as to why

Respondent No. 4 had ignored certain documents and why he had not taken

note of certain arguments advanced by the petitioner's counsel.

5

6. Under the RTI Act "information" is defined under Section 2(f) which

provides:

"information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in

force."

This definition shows that an applicant under Section 6 of the RTI Act can

get any information which is already in existence and accessible to the

public authority under law. Of course, under the RTI Act an applicant is

entitled to get copy of the opinions, advices, circulars, orders, etc., but he

cannot ask for any information as to why such opinions, advices, circulars,

orders, etc. have been passed, especially in matters pertaining to judicial

decisions. A judge speaks through his judgments or orders passed by him. If

any party feels aggrieved by the order/judgment passed by a judge, the

remedy available to such a party is either to challenge the same by way of

appeal or by revision or any other legally permissible mode. No litigant can

be allowed to seek information as to why and for what reasons the judge had

come to a particular decision or conclusion. A judge is not bound to explain

later on for what reasons he had come to such a conclusion.

6

7. Moreover, in the instant case, the petitioner submitted his application

under Section 6 of the RTI Act before the Administrative Officer-cum-

Assistant State Public Information Officer seeking information in respect of

the questions raised in his application. However, the Public Information

Officer is not supposed to have any material which is not before him; or any

information he could have obtained under law. Under Section 6 of the RTI

Act, an applicant is entitled to get only such information which can be

accessed by the "public authority" under any other law for the time being in

force. The answers sought by the petitioner in the application could not have

been with the public authority nor could he have had access to this

information and Respondent No. 4 was not obliged to give any reasons as to

why he had taken such a decision in the matter which was before him. A

judge cannot be expected to give reasons other than those that have been

enumerated in the judgment or order. The application filed by the petitioner

before the public authority is per se illegal and unwarranted. A judicial

officer is entitled to get protection and the object of the same is not to protect

malicious or corrupt judges, but to protect the public from the dangers to

which the administration of justice would be exposed if the concerned

judicial officers were subject to inquiry as to malice, or to litigation with

those whom their decisions might offend. If anything is done contrary to

7

this, it would certainly affect the independence of the judiciary. A judge

should be free to make independent decisions.

8. As the petitioner has misused the provisions of the RTI Act, the High

Court had rightly dismissed the writ petition.

9. In view of the above, the Special Leave Petition is dismissed

accordingly.

...............................CJI. (K.G. BALAKRISHNAN)

..................................J. (Dr. B.S. CHAUHAN)

New Delhi,January 4, 2010

Main Search Forums Advanced Search Disclaimer Divakar S.Natarajan. vs State Information Commissioner, ... on 27 January, 2009 Cites 11 docs - [View All] The Freedom Of Information Act, 2002Section 6 in The Freedom Of Information Act, 2002Article 19 in The Constitution Of India 1949The Right To Information Act, 2005Section 19 in The Freedom Of Information Act, 2002

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THE HON'BLE MR JUSTICE L.NARASIMHA REDDY

Writ Petition No.20182 of 2008

27-01-2009

Divakar S.Natarajan.

State Information Commissioner, A.P.State Information Commission, Hyderabad and others.

Counsel for petitioner: Party-in-person

Counsel for Respondents : Government Pleader for GAD

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:JUDGMENT:

Transparent functioning of the agencies of a State would go a very long way in providing not only peace and tranquility to its citizens, but also would enable them to lead respectable and meaningful life. Many a time, the citizens feel aggrieved, on account of their not being able to have access to the information, in relation to the matters of their immediate concern. More and more the information is withheld, a citizen would tend to gain an impression, that he is denied what is legitimately due to him, in an arbitrary and capricious manner.

2. Howsoever desirable it may be, to ensure complete openness in state activity, by its very nature, governance requires certain amount of confidentiality, at least in some of its facets. A decent balance needs to be maintained between the two conflicting phenomena. An enlightened citizenry and a responsible Government, with their collective effort, can certainly bring about an ideal situation. It is a continuous process and one cannot expect instant and immediate results. The Domestic Laws and International Conventions emphasize upon the freedom of an individual to hold an opinion for himself, and at the same time, espouse his right to seek furnishing information on any aspect, of his choice.

For instance, Article 19 of the Universal Declaration of Human Rights, 1948, reads as under:

"Article-19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers".

3. The provisions of various domestic enactments and international conventions are almost similar, with semantic changes and with slight difference as to emphasis. Difficulty in enacting provisions, that can maintain equilibrium between these two conflicting ideas, has been felt, and it is too early to say that any perfection, in this regard, has been achieved.

4. The Parliament enacted the Freedom of Information Act in the year 2002. This was repealed by the Right to Information Act, 2005 (for short 'the Act'). The Act confers upon the citizens, the right to information, subject to other provisions thereof. Section 4 creates an obligation on every public authority to maintain various records and information mentioned therein. Section 5 places every public authority under obligation to designate a Public Information Officer (PIO). Section 6, which is very important in the entire scheme of the Act, stipulates the procedure for submission of application to seek information and Section 7 deals with the manner in which disposal is to be given to the applications. The nature of information that can be with held when requested for, is itemized in Section 8. Remedy of appeal is provided for under Section 19 of the Act.

5. The petitioner had produced a documentary in Urdu with title "Hyderabad, August 1948" depicting the life of one Mr.Shoebullah Khan, particularly the circumstances, leading to his martyrdom.

It appears that, the film was appreciated by many and proposal was mooted to confer the status or title of "film maker of acknowledged eminence" upon him. It is stated that eminent personalities, Ex-Chief Minister, Ex-Union Home Minister and some prominent persons, who are holding positions at present, have recommended the conferment of such status on the petitioner. However, that did not take final shape.

6. The petitioner states that he had sent e-mails to the Chief Secretary, Government of A.P., the second respondent herein, on 25th, 26th, 29th and 31st July 2005 and 3rd August 2005, in relation to the subject matter. Complaining that he did not receive any response to the e-mails, the petitioner submitted an application to the concerned PIO, the third respondent herein. Correspondence ensured in this regard and the third respondent wanted the petitioner to be specific about the information required by him. The petitioner filed an appeal on 18.07.2007 before the appellate authority under the Act. Through this, he wanted the information to be given on ten items. A reply was given on 02.11.2007 complying with the information on point No.3 of the appeal and observing that rest of the items do not come under the definition of information. The petitioner approached the State Information Commissioner, the first respondent herein, by way of appeal. The appeal was dismissed through order, dated 09.01.2007.

7. The petitioner made further representations on several dates to the third respondent with a request to furnish the information. Through a letter, dated 04.12.2007, the third respondent informed the petitioner that the available information has already been furnished to the petitioner and that no further correspondence would be entertained in this regard. The petitioner feels aggrieved by these proceedings.

8. On behalf of respondents, a detailed counter-affidavit is filed. It is stated that in spite of repeated requests, the petitioner did not divulge the particulars of information sought for by him and that a perusal of the correspondence at the subsequent stage discloses that what is prayed for by the petitioner cannot be treated as information.

9. The petitioner appeared and argued in person. He contends that the stand taken by the respondents on the applications or appeal submitted by him is contrary to the provisions of the Act and the Rules made thereunder. He submits that the application made by him was self-explanatory, and there was absolutely no justification for the respondents, in insisting that the petitioner shall furnish the copies of e-mails and to specify the nature of information. According to him, a person, who makes an application under Section 6 of the Act, cannot be required to be specific, much less to disclose the purpose for which he needs the information. He has elaborated the grounds pleaded by him in the affidavit.

10. Learned Government Pleader for General Administration Department submits that unless and until the application specifies the nature of information to be furnished, the PIO would not be in a position to accede to the request. He submits that a distinction needs to be maintained, as to the information that can be furnished, on the one hand, and the reasons for existence or non- existence of a particular state of affairs, on the other hand.

11. The petitioner is said to have presented a complaint to the PIO on 23.01.2006. Alleging that the PIO refused to receive the same, the petitioner approached the first respondent on 23.10.2006. The same was treated as an appeal and notice was issued to the third respondent. The copy of the application, dated 23.01.2006, said to have been made by the petitioner is not made part of record of this writ petition. The first respondent rejected the appeal on 09.01.2007.

12. After dismissal of the appeal on 09.01.2007, the petitioner submitted a fresh application on 18.07.2007 to the third respondent, which reads as under: "Kindly provide me with all information, including files and notings, regarding action taken on the matters petitioned vide my emails to then Chief Secretary dtd. 25, 26, 29,

31st July 2005, and 3rd August 2005 and CD with supporting evidence presented to the PS to then CS during my meetings".

On receipt of this, the second respondent requested the petitioner to furnish the copies of e-mails. The petitioner felt aggrieved by such communication and he preferred appeal on 15.10.2007. It is in this appeal that he mentioned the details of information dividing them into ten points. The text of the appeal reads as under:

1. "Whether the Government of Andhra Pradesh considers the applicant to be antagonistic, inimical and posing a threat to the Constitution of India, the Government of India and Andhra Pradesh and the general health and well being of Indian society, because of the various allegations he has leveled in his petitions or for any other reason ?

2. Whether the Government of Andhra Pradesh considers the applicant's no excuses, ultra-peaceful, non-disruptive, non-partisan, sathyagraha now in its seventeenth year - against "the patronage paradigm - the paradigm of irresponsibility, shoddiness, cronyism and corruption that is crushing the spirit of our grand nation and making pygmies of us all" and for the idea of the rule of law, to be deserving of appreciation, consideration and exemplary indulgence?

3. Whether the Government of Andhra Pradesh will be pleased to immediately make available to the applicant a copy of rules framed for the implementation of RTI Act 2005 as mandated by the Act, Rules on filing and preservation of information and any other such rules and procedures as the Government considers fit and relevant in the present case ?

4. Whether the Government of Andhra Pradesh is satisfied that it has in this case, obeyed the letter and observed the spirit of the RTI Act 2005 ?

5. Whether the Government of Andhra Pradesh will unambiguously admit Letter (5) along with (7) constitute a clear admission of gross negligence on the part of the former CS and the current administration ?

6. Whether the Government of Andhra Pradesh is satisfied that it does not possess now, nor does it expect to possess in the near foresseable future, any information regarding the matters mentioned in the applicant's emails and attachments therein, addressed to the former Chief Secretary on dates 25, 26, 29, 31 July 2005 and 3rd August 2005, including copies of letters addressed by former Chief Minister to various Ministers of Information and Broadcasting, Government of India, which after initial denial you have found in your possession ?

7. Whether the Government of Andhra Pradesh is concerned about such a complete disappearance of vital documents and whether it will immediately and without any further delay identify the officials responsible, and take such disciplinary action as prescribed by the Rules, including the registering of FIRs and simultaneously report the same to the applicant with copies of FIRs ?

8. Whether the Government of Andhra Pradesh will immediately make available to the applicant a list of specimen signatures and initials, along with corresponding names and designations of all officers represented in (7) ?

9. Whether the Government of Andhra Pradesh will immediately take suitable action to correct its internal brief regarding the applicant's case appearing in page 9 of note file since

such brief is clearly counterfactual, omits mention of most significant facts, is derogatory, misleading and "uncharitable"?

10. Given the tacit admission of gross negligence at the highest administrative level vide its letters (5) and (7) whether the Government of Andhra Pradesh, in keeping with well established precedents, immediately utilize the information given by the applicant to further the cause of justice and make amends ?"

13. The third respondent issued a reply to this on 02.11.2007. Copy of the rules framed under the Act was furnished and as regards other items, it was observed that they do not fall within the definition of information. Therefore, it needs to be seen as to whether there was any lapse on the part of the respondents in acceding to the request of the petitioner. To appreciate the contention advanced on behalf of the petitioner, it is necessary to extract Section 6 of the Act.

"Sec.6: Request for obtaining information.-

1) A person, who desires to obtain any information under this Act, shall make a request in writing or through electronic means in English or Hindi in the official language of the area in which the application is being made, accompanying such fee as may be prescribed, to

(a) the Central Public Information Officer or State Public Information Officer, as the case may be, of the concerned public authority; (b) the Central Assistant Public Information officer or State Assistant Public Information Officer, as the case may be,

specifying the particulars of the information sought by him or her: Provided that where such request cannot be made n writing, the Central Public Information Officer or State Public Information Officer, as the case may be, shall render all reasonable assistance to the person making the request orally to reduce the same in writing.

2) An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.

3) Where an application is made to a public authority requesting for an information,--

(i) which is held by another public authority; or

(j) the subject matter of which is more closely connected with the function of another public authority,

the public authority, to which such application is made, shall transfer the application or such part of it as may be appropriate to that other public authority and inform the applicant immediately about such transfer: Provided that the transfer of an application pursuant to this sub-section shall be made as soon as practicable but in no case later than five days from the date of receipt of the application."

14. An individual, who wants to secure information from a public authority, has to make an application in the prescribed form. The Act is an improvement over the Freedom of Information Act 2002, in that, it ensures that the applicant cannot be required to give the

reasons for requesting the information. The same is evident from sub-section (2) of Section 6 of the Act.

15. The word "information" is defined under clause-(f) of Section 2 of the Act, which reads as under:

"Sec.2(f): "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 public authority under any other law for the time being in force".

16. Before undertaking further discussion, as to the legality or otherwise of the orders passed by the respondents, the distinction between 'information' on the one hand and the 'reasons' for existence or non-existence of a particular state of affairs on the other hand, needs to be noticed. The Act has comprehensively defined the word 'information'. It takes in its fold, large variety of sources of information, including documents, e-mails, opinions, press releases, models and data material etc. The common feature of various categories, mentioned in the definition is that they exist in one form or the other and the PIO has only to furnish the same, by way of a copy or description. In contrast, the reason or basis as to why a particular state of affairs exists or does not exist cannot be treated as a source, or item of information.

17. For instance, whether or not, any orders have been passed, on an application for grant of a licence can be sought as an information. In case any order has been passed, the PIO would be under obligation to furnish the copy of the order. On the other hand, if no order was passed on the application, information can be furnished to the same effect. However, he cannot be required to furnish the reasons as to why the licence was granted or not granted. It is only the authorities conferred with the power under the relevant statutes, to take a decision on the application, that can throw light on it. Further, the basis for the decision of such an authority, can be culled out from the order passed by him and he cannot be compelled to state as to why he passed the order in a particular manner through an application under the Act. It is only by instituting proceedings such as appeal, revision or writ petition that the authority who passed the order can be required to justify it.

18. Obviously, on account of the fact that the whole concept of Right to Information is of recent origin, instances are occurring where the citizens are insisting on furnishing of reasons in relation to a decision taken by one authority are sought from another, by filing application under the Act. Recently, in one application, a citizen asked the Registrar of the Special Court, established under the A.P. Land Grabbing Act, to state as to why the Court has passed an order in a particular way.

19. Reverting to the facts of the case, the petitioner has made reference only to the e-mails in the application. The respondents herein asked the petitioner at least to furnish the copies of e-mails, so that, they can verify whether anything can be done at their level, in the context of furnishing of information. The petitioner firmly refused to accede to that request and insisted that he is not under obligation to reveal the same. In fact, he claimed confidentiality, in relation to the e-mails.

20. During the course of hearing of the appeal before him, the first respondent made frantic efforts to persuade the petitioner to mention the nature of information, which he wants.

However, the petitioner stuck to his gun. The following observation made by the petitioner makes this aspect, clear: "On 04-01-2007, the case came up for hearing again. The appellant and the respondent were present. Once again, the appellant invoked the plea of confidentiality and expressed his inability to provide copies of the E-mails referred to or even share with the Court the broad details made in his representation to the Chief Secretary.

This Commission having carefully gone through the material papers available with it and the request of the appellant is of the considered view that the appellant has not followed the provisions of Section 6(1) (b) of the RTI Act, 2005, which mandates that the request for obtaining information shall "specify" the particulars of the information sought.

As already mentioned above, it is clear that the mandatory provision of Section 6(1)(b) of the RTI Act, 2005, have not been followed and in view of the fact that the appellant is not prepared to take the Court into confidence and provide it with specific particulars of the information sought, thus, under such circumstances, this Commission has no material evidence before it to arrive at a value judgment on the culpability or not of the Government. In view of the foregoing, the appeal is dismissed".

21. In his affidavit filed before this Court, the petitioner branded the efforts made by the respondents to get the particulars as under: "It is submitted that the State Information Commission / Court utterly disregarded and flouted the provisions of RTI Act 2005 and the decision of the 1st respondent is whimsical and capricious, illegal in the extreme and liable to be set aside.

It is submitted that the State Information Commission fabricated a blatantly specious ruse by claiming falsely that the applicant's petition did not specify the particulars sought.

On the strength of this ruse, and ignoring my repeated protests, it has attempted to intimidate and browbeat me into submitting to its draconian diktat that I divulge copies of my e-mail correspondence with the Chief Secretary.

It has unfairly punished me for protecting my right under the Act (Sec. 6.1 & 6.2) to not be required to give reason for requesting the information or any other personal details except those that may be necessary for purposes of contacting".

22. Even before this Court, the petitioner refused to divulge the nature of information, which he wants, nor did he furnish the copies of e-mails. The curious part of the matter is that, on the one hand, the petitioner stated that his work was highly appreciated by the then Chief Minister, and on the other hand, he complained that he suffered punishment in the hands of the same incumbent. To be specific, the following excerpts are reproduced: "It is further submitted that the former Chief Minister Sri N. Chandrababu Naidu addressed repeated representations to the Union Minister for Information and Broadcasting to commission me as "a film maker of acknowledged eminence" to make films to celebrate the 50th anniversary of our Independence. The former CM's representations on my behalf were among the most popular and well supported actions of his tenure. Mysteriously, they were completely ineffective."

At another place, he said,

"My proposal contained three points that would provide me some immediate relief from the public humiliation, grievous professional embarrassment:

a) The Hon'ble Chief Minster may accept responsibility for the cruel and perverse punishment I had endurd at the hands of his predecessor and offer me a sincere and authentic public apology.

b) The Hon'ble Chief Minister would forward a complete report to the Hon'ble Prime Minister detailing the cruelty I had endured and renewing the request that I be commissioned as a "filmmaker of acknowledged eminence" to produce films to commemorate the 50th anniversary of our Independence.

c) That the Hon'ble Chief Minister would offer an immediately interim financial relief of Rs.Twenty five lakhs."

23. A comparison of these two paragraphs, discloses that the actual grievance of the petitioner was much more than mere collection of 'information', as defined under the Act.

24. It has already been observed that a distinction needs to be maintained between information on the one hand and the reasons in support of an administrative action or inaction on the other hand. The effort of the petitioner appears to have been directed mostly in relation to the latter, that too, without specifying the actual grievance, much less, the authority, who was supposed to take a decision. It is well neigh impossible for any one to accede to the request of the petitioner within the scope of the Act and Rules.

25. Of late, a typical tendency is growing, viz to be conscious, more and more about rights, and not the corresponding obligation. If every citizen feels that he is endowed with the right to question, but is not under obligation to answer, a stage may reach where the comparatively small number of persons, who are being questioned, may join the team of those who choose, just to question. If that happens, the society may face a situation, where it would become difficult to expect answers.

26. The Act is an effective device; which, if utilized judiciously and properly, would help the citizens to become more informed. It no doubt relieves an applicant from the obligation to disclose the reason as to why he wants the information. However, indiscriminate efforts to secure information just for the sake of it, and without there being any useful purpose to serve, would only put enormous pressure on the limited human resources, that are available. Diversion of such resources, for this task would obviously, be, at the cost of ordinary functioning. Beyond a point, it may even become harassment, for the concerned agencies. Much needs to be done in this direction to impart a sense of responsibility on those, who want to derive benefit under the Act; to be more practical and realistic.

27. This Court does not find any legal or factual infirmity in the orders passed by the respondents and the writ petition is accordingly dismissed. There shall be no order as to costs.

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The Public Information Officer/ ... vs A.P. Information Commissioner, ... on 4 December, 2008

Cites 29 docs - [View All]

The Freedom Of Information Act, 2002

The Indian Evidence Act, 1872

The Right To Information Act, 2005

Section 8(1) in The Freedom Of Information Act, 2002

Section 2(f) in The Freedom Of Information Act, 2002

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Andhra High Court

THE HON'BLE SRI JUSTICE V.V.S.RAO

WRIT PETITION No.16717 OF 2008

04-12-2008

The Public Information Officer/ Joint Secretary to Chief Commissioner of Land Administration, Nampally, Hyderabad and another

A.P. Information Commissioner, (under Right to Information Act, 2005), Rep by its Chief Information Commissioner, HACA Bhavan, Hyderabad and others

Counsel for petitioners:THE ADVOCATE GENERAL

Counsel for Respondent No.1: NONE APPEARED

Counsel for Respondent No.2: MR.P.VENUGOPAL

:ORDER:

Whether denial of certified copy of Muntakhab1 to a person on the ground that he/she is not a legal heir of Muntakhab holder is justified under the provisions of Right to Information Act, 2005 (RTI Act, for short)? This interesting question of considerable significance falls for consideration in this writ petition filed by two public authorities of Revenue Administration of Government of Andhra Pradesh, namely, the Public Information Officer/Joint Secretary to Chief Commissioner of Land Administration, Nampally, Hyderabad, and the Appellate Authority/Secretary, Chief Commissioner of Land Administration, Nampally, Hyderabad.

Second respondent, Smt.Gousinnisa Begum (wrongly described as Smt.Gousinnisa Baig) filed an application before first respondent requesting for a copy of Muntakhab No.3232 of 1304F under RTI Act. By an order dated 28.6.2007, first petitioner refused to give certified

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copy on the ground that her name does not figure in Muntakhab nor she produced legal heir certificate issued by competent civil court establishing her succession. First petitioner also opined that Muntakhab is personal in nature, that it has no bearing of public interest and it need not be disclosed. Second respondent preferred appeal before second petitioner. The same was rejected by an order dated 23.1.2008 in Appeal No.C3/1782/2007, on the ground that Muntakhab is not a public document. Second respondent then preferred further appeal before Andhra Pradesh Information Commission constituted under RTI Act. By order dated 02.7.2008, Chief Information Commissioner directed petitioners to furnish copy of Muntakhab to second respondent.

Second respondent filed counter affidavit. Her case is as follows. Sardar Begum in whose favour Muntakhab No.3232 of 1304F issued died in 1901. In succession case No.72 of 1344 Fasli (1934 A.D.) in file No.38/58 of 1339 Fasli- Medak, succession enquiry was conducted. Father of second respondent, Khaja Moinuddin Khan, was declared heir of Muntakhab holder. In this background, if petitioners insist on production of legal heir certificate, it would be highly impossible as Sardar Begum died in 1901. Muntakhab is a public document as defined under Section 74 of Indian Evidence Act, 1872 (Evidence Act, for short) and petitioners cannot deny supply of certified copy of Muntakhab. Learned Special Government Pleader in the office of Advocate General submits that RTI Act impliedly prohibits issue of judgments and decrees in personam. Muntakhab being a decree or succession order issued by competent authority in favour of a person is not a public document and if any person claiming certified copy has to produce legal heir certificate. Per contra, learned Counsel for second respondent raised following contentions. Writ petition is not maintainable at the instance of public authorities whose order is set aside. Petitioners did not suffer any legal injury and no principle of natural justice is violated for seeking redressal in extraordinary public law remedy under Article 226 of Constitution of India. Muntakhab is a document in respect of which petitioners cannot claim any privilege nor supply of copy is prohibited under Section 8 of RTI Act.

To examine briefly history of RTI Act is a necessary initial step to consider the question. Article 19 of Universal Declaration of Human Rights, 1948 (UDHR) recognizes right to receive information, "every one has right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any area and regardless of frontiers." There is no gainsaying that without participation of citizens, democracy is ineffective. To enable citizens to actively participate in governance information should be made available. Information regarding governmental activities, information about people whom they elected, information about bureaucrats, information about benefits which are conferred on citizens in various walks of life and information about governance itself. In Association for Democratic Reforms v Union of India2 and People Union of Civil Liberties v Union of India3, Supreme Court emphasized importance of freedom of information. In People Union of Civil Liberties (supra), Supreme Court observed as under.

Freedom of speech and expression, just as the equality clause and the guarantee of life and liberty, has been very broadly construed by this Court right from the 1950s. It has been variously described as a "basic human right", "a natural right" and the like. It embraces within its scope the freedom of propagation and interchange of ideas, dissemination of information, which would help formation of one's opinion and viewpoint and debates on matters of public concern. The importance which our Constitution-makers wanted to attach to this freedom is evident from the fact that reasonable restrictions on that right could be placed by law only on

the limited grounds specified in Article 19(2), not to speak of inherent limitations of the right. In due course of time, several species of rights unenumerated in Article 19(1)(a) have branched off from the genus of the article through the process of interpretation by this Apex Court. One such right is the "right to information". The right of the citizens to obtain information on matters relating to public acts flows from the fundamental right enshrined in Article 19(1)(a).

Equitable, fair, transparent and justice-ridden administration presupposes that persons be made aware of the Laws, Rules, Regulations and Administrative Guidelines by which their affairs will be governed. Thus right to information has a dynamic role in constitutional governance. All information available with the Government or of information to which the Government/public authorities have access has to be made available to citizens whenever they ask. But like all rights, right to information, which flows from Articles 19(1)(a), 14 and 21 of Constitution, is not at all times and always absolute right. Being a penumbral right to freedom or speech, right to information is subject to State's reasonable restriction on exercise of such right. Interests of sovereignty, integrity, security of India, foreign relations, public order, decency or morality are some of the factors, which might encumber exercise of right to information.

The conference of Chief Ministers on "Effective and Responsive Government" held on 24.5.1997 recognised the need to enact law on right to information. Government of India appointed a working group to examine feasibility and need for Right to Information Act to meet ends of open and responsive governance. The working group recommended for enactment of Freedom of Information Act. The issue was deliberated by group of Ministers in accordance with Article 19 of Constitution and Article 19 of UDHR. The Bill enacting Freedom of Information Act, 2002, was passed on 06.1.2003. But the same could not be brought into existence by notifying date of enforcement for various reasons.

National Advisory Council deliberated on the issue of ensuring greater and more effective access to information in the background of Freedom of Information Act. They suggested important changes to be incorporated in Freedom of Information Act to ensure smoother and greater actions to information. In tune with Council's suggestion, Government of India decided to make number of changes in the Law, inter alia, to include establishment of an appellate machinery with investigating powers, to review decisions of Public Information Officers, penal provisions for failure to provide information, provisions to ensure maximum disclosure and minimum exemptions, consistent with constitutional provisions, and effective mechanism for access to information. In that direction, Right to Information Act, 2005, was enacted repealing Freedom of Information Act, 2002. RTI Act came into force with effect from 21.6.2005. Preamble of RTI Act announces that new Act (RTI Act) is to provide for setting aside practical regime of right to information for citizens to secure access to information under the control of public authorities. In order to promote transparency and accountability in working of public authority and to provide for hierarchy of Information Officers, RTI Act also seeks to harmonise conflicting public interests including efficient operations by the Government and revelation of information in actual practice required by citizen.

RTI Act has six chapters (31 sections) and two schedules. Chapter-I contains short title and dictionary clause. The heart and soul of RTI Act is chapter-II containing Sections 3 to 11, which deal with citizens' right to information and obligation of public authorities. Chapters-III, IV and V constitute Information Commissions at various levels and describe powers and

functions of these Commissions. Miscellaneous provisions are included in Chapter-VI and Section 22 gives overriding effect to the provisions of RTI Act notwithstanding anything contained in Official Secrets Act, 1927, and any other Law for the time being in force or in any instrument having effected by virtue of any law. Section 23 deals with jurisdiction of Courts to entertain any suit, application or proceeding in respect of any order made under RTI Act. As this case does not involve any controversy with regard to constitution of State Information Commission, Central Information Commission etc., and exercise of power by these Commissions, it is not necessary to refer to those sections.

However, it is important to notice provisions of Chapter-II. Section 2(f) of RTI Act defines "information" as to mean 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 public authority under any other law for the time being in force. Section 3 of RTI Act confers on all citizens right to information. The term "record" as defined in Section 2(i) of RTI Act, include any document, manuscript and file, any microfilm, microfiche and facsimile copy of a document, any reproduction of image or images embodied in such microfilm (whether enlarged or not), and any other material produced by a computer or any other device. As per section 2(j) of RTI Act, "right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to inspection of work, documents, records; taking notes, extracts or certified copies of documents or records; taking certified samples of material; and/or obtaining information in any electronic form. Section 4(1)(a) of RTI Act casts a statutory duty on every public authority to maintain all records duly catalogued and to ensure that all records are appropriated to be computerized and connected to network so as to make them accessible. Every public authority is required to designate Central Public Information Officers or State Public Information Officers in all administrative units. These Officers shall deal with request from citizens seeking information and render reasonable assistance. Section 6 of RTI Act enables a person to request for obtaining information. Under Section 7 of RTI Act, Information Officer has to respond within thirty (30) days in default of which, it shall be deemed that information is refused. Even where access to record is required to be provided, Information Officer shall provide assistance. Section 11 of RTI Act contains procedure when information sought relates to a third party, which has been treated as confidential by that third party. In such a case, a notice shall have to be issued to third party for making a representation against disclosure whereupon Information Officer shall take a decision. When information is denied by Public Information Officer, the person can prefer an appeal to such officer, who is senior in the rank to State Information Officer. Even if there is resistance at the appellate stage, Section 18(1)(a) of RTI Act enables aggrieved person to prefer a complaint to State Information Commission. If the State Information Commission comes to the opinion that information was not furnished within the time specified under Section 7(1) of RTI Act or mala fide denied request for information, a fine of Rs.250/- (Rupees two hundred and fifty only) per day (till information is furnished) can be imposed.

Sections 8, 9 and 10 of RTI Act are one group of provisions, which provide for exemption from disclosure of information and grounds for rejection to access in certain cases as well as method of applying principle of severability. Section 8(1) of RTI Act is relevant and reads as under.

8. (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-

(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; (b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court; (c) information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;

(d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;

(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;

(f) information received in confidence from foreign Government; (g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;

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

(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers:

Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over:

Provided further that those matters which come under the exemptions specified in this section shall not be disclosed;

(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:

Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.

Parliament has expressed very clearly on information about which there is no obligation to give such information to any citizen. Even with regard to exemption material under Section 8(1) of RTI Act, as per Section 8(2) of RTI Act, if public interests in disclosure outweighs productive interests, public authority may allow access to information notwithstanding

exemptions under Section 8(1) of RTI Act or Official Secrets Act. Section 9 of RTI Act prohibits giving information, which involves infringement of copy right. Under Section 9 of RTI Act, even with regard to exempted information, if a document contains information which is not exempt, public authority may decline to grant exempted information and allow access to other information, which is not exempted. The overview of RTI Act especially Sections 6, 7, 8 read with Sections 2(f) and 2(i) of RTI Act, leads to conclusion that endeavour of legislation is to harmonise conflicting public and private interests. If information is available with public authority, unless and until it is one of the categories mentioned in Section 8(1), there should not be any objection for furnishing information subject to procedural compliance under RTI Act. Even the information regarding private persons can also be made available after Section 11 of RTI Act is complied with. Theory of 'implied bar' does not apply to a Law, which is made to give full scope to fundamental rights. Section 3 of RTI Act, which confers on every citizen the right to information is manifestation of fundamental rights under Article 19(1)(a) of Constitution. Unless such a right is curtailed by Law made by competent Legislature, by executive constructions the purpose of Law cannot be defeated. Parliament has exempted only certain categories of documents as enumerated under Section 8 of RTI Act with regard to which there is no obligation to furnish information. Explicit exemption of documents under Section 8(1) of RTI Act conclusively presupposes that RTI Act does not impliedly bar furnishing of information with regard to any information as defined under Section 2(f) read with 2(i) of RTI Act.

Next question is whether a Muntakhab can be given only to legal heir of such Muntakhab holder? Muntakhab is essentially a document with list of names with numbers of fields held by original grantee or his successors. A certificate issued by competent authority recognizing succession forms part of Muntakhab and some times by itself is a Muntakhab. When a document recognizes successors in title and such decision is based on enquiry essentially there is determination of rights. It is certainly not an order or judgment in personam4. It is not only between rivals staking claim to property mentioned in Muntakhab but declaration contained therein operates against entire world. In that sense, it is a judgment in rem5.

In Satrucharla Vijaya Rama Raju v Nimmaka Jaya Raju6, Supreme Court explained 'judgment in rem' as follows.

Under the Evidence Act, Section 41 is said to incorporate the law on the subject. The judgment in rem is defined in English Law as "an adjudication pronounced (as its name indeed denotes) by the status, some particular subject- matter by a Tribunal having competent authority for that purpose." Spencer Bower on Res judicata defines the term as one which "declares, defines or otherwise determines the status of a person or a thing, that is to say, the jural relation of the person or thing to the world generally."

A Muntakhab declaring the rights of successors and delineating respective shares of such successors is an order/judgment in rem. Even if it is a judgment in personam, a public authority in possession of such document is bound to give because under Section 2(f) of RTI Act, 'information' means any material in any form and includes inter alia information relating to any private body, which can have access by public authority. Copy of Muntakhab No.3232 of 1304F is in the custody of Chief Commissioner of Land Administration consequent to abolition of Board of Revenue which used to take care of matters pertaining to succession of the heirs of grantees, who are given land grants by sovereign. Whether it is a judgment in rem or judgment in personam in that sense makes no difference and even a third party who has no

direct interest in Muntakhab who might have purchased property from heirs/successors of original grantee are also entitled to seek certified copy of Muntakhab.

The matter can also be examined with reference to Section 74 of Evidence Act. Documents forming the Acts or records of the Acts of sovereign authority of official bodies and Tribunals and of public officers, Legislative, Judicial and Executive of any part of India and public records kept in any state of private documents or public documents. Muntakhab is certainly a public document and it cannot be treated as a private document. Under Section 123 of Evidence Act, the State can claim privilege from producing a document as evidence only when such evidence is derived from unpublished official records relating to State unless permission is obtained from Head of Department. A Muntakhab cannot be a privilege document. When Muntakhab is a public document, State cannot claim any privilege under Section 123 of Evidence Act and petitioners cannot refuse supply of Muntakhab asked by second respondent. As already concluded supra, one need not be legal heir for obtaining a copy of Muntakhab.

Even if a Muntakhab is considered as privileged document under Section 74 read with 123 of Evidence Act, still public authority as defined under Section 2(h) of RTI Act cannot refuse. By reason of Section 22 of RTI Act, provisions of RTI Act shall have effect notwithstanding anything inconsistent therewith contained in any other law. It only means that even if there is a question of privilege involved, RTI Act compels furnishing of information unless and until furnishing of information is barred under Section 8(1) of RTI Act. It is not permissible to read implied prohibitions or invisible mandates in RTI Act. In the result, for the above reasons, writ petition fails and is accordingly dismissed without any order as to costs.

?1 Muntakhib (in Arabic) an abstract of the documents, in the older survey records system being a list of names, with the numbers of the fields held by each. (p.844 in THE LAW LEXICON, P.Ramanatha Aiyar, Reprint Edition 1993). Section 2(c) of Andhra Pradesh (Telangana Area) Atiyat Enquiries Act, 1952 defines "Muntakhabs and Vasikas" as documents issued by competent authorities as a result of Inam or succession enquiries held under the Dastoor-ul- Amal Inams or other Government Orders on the subject and issued by way of continuance or confirmation of Atiyat grants.

2 (2002) 5 SCC 294

3 (2003) 4 SCC 399 = AIR 2003 SC 2363

4 Judgment in personam: The judgment in personal is, in form as well as in substance, between the parties claiming the right, and that is so inter-parties appears by the record itself. (p.644, THE LAW LEXICON)

5 Judgment in rem is one pronounced upon status of some particular person or thing and it binds all persons. (P.644, THE LAW LEXICON)

Judgment in rem: A 'Judgment in rem' is an adjudication pronounced upon the status of some particular subject-matter by a Tribunal having competent authority for that purpose. (P.644, THE LAW LEXICON)

6 (2006) 1 SCC 212