RTI ACT - POWER TO IMPOSE PENALTY SHOULD BE EXERCISED BY CIC AFTER MAKING DISTINCTION BETWEEN INFORMATION INTENDED TO BRING TRANSPARENCY AND REDUCE CORRUPTION AND OTHER INFORMATION NOT HAVING A BEARING ON ACCOUNTABILITY OR REDUCING CORRUPTION

The High Court of Delhi in  its Order dated 20/02/2014 in the case Union Of India vs Praveen Gupta (W.P.(C) 2258/2012 and CM APPL.4845/2012) set aside  the Order dated 13/10/2011 passed by the Central Information Commission by which a penalty of Rs. 25,000/- was levied on the PIO of Ministry Of External Affairs for supplying the information after a lapse of hundred days instead of prescribed period of thirty days. The Hon’ble High Court arrived at this decision primarily on the following grounds:

(a)    Keeping in view the width and amplitude of the queries raised by the respondent under the RTI Act, the information sought could not have been reasonably disclosed within a period of thirty days.

(b)   The primary duty of the Ministry of External affairs was to maintain good diplomatic relations with different countries and to promote as well as protect the political, economic interest of the country abroad. If the limited manpower and resources of the Ministry of External Affairs were devoted to address such meaningless and vague queries (as raised by the respondent under the RTI Act), the office of the Ministry of External Affairs would come to a standstill.

(c)    The Supreme Court of India in CBSE vs. Aditya Bandopadhyay, (2011) 8 SCC 497, held, inter alia that the RTI Act provides access to all information that is available and existing as would be made clear by a combined reading of Section 3 and the definitions of “information” and “right to information” under clauses (f) and (i) of Section 2 of the Act. If a public authority has any information in the form of data or analysed data, or abstracts, or statistics, an applicant may access such information , subject to the exemptions in Section 8 of the Act. But where the information sought  is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non-available information and then furnish it to an applicant. A public authority is also not required to furnish information which requires drawing of inferences and / or making of assumptions. It is also not required to provide “advice” or “opinion” to an applicant, nor required to obtain and furnish any “opinion” or “advice” to an applicant. The reference to “opinion” or “advice” in the definition of “information” in Section 2 (f) of the Act, only refers to such material available in the records of the public authority.

(d)   The Supreme Court of India  in CBSE vs. Aditya Bandopadhyay further ruled that the power under Section 19(8) of the Act, however, does not extend to requiring a public authority to take any steps which are not required or contemplated to secure compliance with the provisions of the Act or to issue directions beyond the provisions of the Act. The power under Section 19(8) of the Act is intended to be used by the Commissions to ensure compliance with the Act, in particular ensure that every public authority maintains its records duly catalogued and indexed in the manner and in the form which facilitates the right to information and ensure that the records are computerized, as required under clause (a) of Section 4(1) of the Act; and to ensure that the information enumerated in clauses (b) and (c) of Section 4(1) of the Act are published and disseminated, and are periodically updated as provided in sub-sections (3) and (4) of Section 4 of the Act.

(e)   The Supreme Court of India in the aforesaid case further ruled that all efforts should be made to bring to light the necessary information  under clause (b) of Section 4(1) of the Act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption. But, in regard to other information [ that is, information other than those enumerated in sections 4(1)(b) and (c) of the Act], equal importance and emphasis are given to other public interests (like confidentiality of sensitive information, fidelity and fiduciary relationships, efficient operation of Governments, etc.). Indiscriminate and impractical demands or directions under the RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counterproductive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information.

(f)     The Supreme Court of India in ICAI vs Shaunak H. Satya, (2011) 8 SCC781, held that it is necessary to make a distinction in regard to information intended to bring transparency, to improve accountability and to reduce corruption, falling under Sections 4(1)(b) and (c) and other information which may not have a bearing on accountability or reducing corruption. The competent authorities under the RTI Act will have to maintain a proper balance so that while achieving transparency, the demand for information does not reach unmanageable proportions affecting other public interests, which include efficient operation of public authorities and the Government, preservation of confidentiality of sensitive information and optimum use of limited fiscal resources.

 

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THERE WAS NOTHING WRONG IN CENTRAL INFORMATION COMMISSION IMPOSING A PENALTY OF Rs. 25,000/- ON COMMISSIONER, KENDRAYA VIDAYALAYA FOR DELAY IN PROVIDING INFORMATION TO AN RTI APPLICANT.

The High Court of Delhi in its Order dated 01/09/2010 in the case of Commissioner, Kendraya Vidyalaya vs. Santosh Kumar, W.P.(C) 5945/2010 and CM APPL No. 11697/2010 rejected the case of the Petitioner who had challenged the order passed by  the Central Information Commission (CIC) by which  a penalty of Rs. 25,000/- was imposed on him for the delay in furnishing the requested information to the Respondent. The Hon’ble High Court arrived at this conclusion in light of the following facts and circumstances of the case:

(a) It was argued on behalf of the Commissioner, Kendraya Vidyalaya that  (i) the information sought by Santosh Kumar (Respondent) under the RTI Act was provided to him in time; and (ii) the appeal itself should not have been entertained by the CIC as the applicant had not exhausted the remedy of  First Appeal.

(b) The Hon’ble High Court rejected the above arguments when it noted that although the RTI application was filed on 13/08/2009, the complete information was provided to the Respondent only on 06/09/2010 after a delay of over 100 days and, then agai,  the penalty was restricted to Rs. 25,000/- calculated at  fixed statutory rate of Rs. 250/- per day for 100 days delay only. It was further observed that the omission on the part of the Respondent to first exhaust the remedy of First Appeal would not have made any difference to the fact that the complete information was provided to the Respondent only on 06/03/2010.

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IF THERE IS INEXPLICABLE AND CONSIDERABLE DELAY IN DISPOSING OF AN APPEAL BY THE FIRST APPELLATE AUTHORITY UNDER THE RTI ACT,2005, THE CENTRAL INFORMATION COMMISSION CAN NOT BE FAULTED FOR HAVING ORDERED THE PUBLIC AUTHORITY CONCERNED TO PAY A SUITABLE COMPENSATION TO THE APPELANT

The High Court of Delhi by its Order dated 18/08/2010 in Union of India vs. Sunita Dahat,   W.P. (C) No.154 of 2010 and CM No. 307 of 2010 (for stay), dismissed the appeal filed by the Petitioner for striking down the Order dated 24/08/2009 in so far as it provided for payment a compensation of Rs. 5,000/- by the Petitioner  to the Respondent on account of delay the Petitioner had made in considering the First Appeal the Respondent  had earlier filed under the RTI Act. The facts and circumstances attending the case were as follows:

(a)    Section 19(8)(b) of the Right to Information Act, 2005 empowers the Central Information Commission or State Information Commission, as the case may be, to require the public authority to compensate the complainant for any loss or other detriment suffered.

(b) The Respondent, aggrieved that the Central Public Information Officer (CPIO) concerned had not favourably disposed off the application she had earlier made under the RTI Act, filed an Appeal on 04/12/2007 before the First Appellate Authority as provided under the Act.

(c)    The said appeal was disposed of by an order dated 20th/24th August 2009 of the Appellate Authority. There was no explanation why an appeal filed on 4th December 2007 was  not taken up for consideration prior to 8th August 2009 when for the first time, notice of the hearing for 24th August 2009 was issued. The Hon’ble High Court observed that this  was  the only reason  for the CIC to award compensation to the Respondent under Section 19(8)(b) of the RTI Act, 2005. The Petitioner had  erroneously contended  before the Hon’ble High Court that it constituted imposition of a penalty under Section 20 of the RTI Act.

(d)    The Hon’ble High Court further held that awarding a compensation of Rs.5000/‐  to the Respondent in the above circumstances could hardly be characterised as exorbitant or unwarranted. Consequently, the writ petition was dismissed, the  interim stay  vacated and the application  dismissed.

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THERE IS NO JUSTIFICATION IN A PUBLIC AUTHORITY WITHHOLDING THE OFFICE NOTINGS LEADING TO SANCTION OF PROSECUTION OF A DELINQUENT PUBLIC SERVANT IF THE CRIMINAL CASE AGAINST HIM HAS ALREADY BEEN CHARGE SHEETED IN A COURT OF LAW AND ORDER FOR FRAMING THE CHARGES HAVE BEEN PASSED BY THE COURT.

The salient features in the case of S. M. Lamba vs  S. C. Gupta and ANR,  W.P. (C) 6226/2007, decided by the High Court of Delhi partly in favour of the Petitioner are, briefly stated, as given in the succeeding paragraphs.

2. The conduct of the Petitioner, S. M. Lamba, an employee of Oriental Bank of Commerce, was under investigation of the CBI in RC No: SIA-2003-R-0001 on conclusion of which he was charge sheeted in a court of law after the sanction for his prosecution was accorded by the Competent Authority. In this connection, S. M. Lamba filed an application under the RTI Act for furnishing  copies of the following information to him: (i) sanction for  his prosecution issued by the Bank;(ii) Report along with its enclosures submitted by the CBI to Oriental Bank of Commerce for issue of sanction for his prosecution; and (iii) office notings on the basis of which the sanction for his prosecution was issued. While the first named document was provided to S. M. Lamba by the Bank, the request for the remaining two documents was declined. The Central Information Commission also upheld the position taken by the Bank.

3.The High Court of Delhi before which S. M. Lamba filed the aforesaid Petition observed that in regard to supplying a copy of the Report in which the CBI recommended prosecution of M. S. Lamba, the request was declined by the Public Authority on the ground that the said document had been classified as “Confidential” by the CBI because of which the provisions contained in Section 11 of the RTI Act,2005  relating to third party information were attracted. It was contended on behalf of the Petitioner that there was no justification in withholding this document as the charge sheet had already been filed in the Court which had also since passed the order for framing charges.The Hon’ble High Court, however, held that  under the Code of Criminal Procedure 1973 (CrPC) once the stage of an order framing charges was crossed, it would be open to the accused to make an appropriate application before the  learned trial court to summon the above document in accordance with law. Accordingly, the Hon’ble Court ruled that as  far as the Respondent Bank was concerned, this Court found  that no error  was committed by it by taking recourse to Section 11 of the RTI Act. 

5.  In regard to the document containing the office notings on the basis of which the Competent Authority in the Bank had issued sanction for prosecution, the Hon’ble High Court noted that it was refused by the Bank  on the ground that as the prosecution proceedings against S. M. Lamba were in progress in the trial court, the  supply of this document would violate Section 8 (1) (h) of the RTI Act. This contention was however rejected by the Hon’ble High Court which held that the charge sheet having been filed upon completion of investigation, there could be  no apprehension that the disclosure of the office notings leading to sanction of prosecution would impede either the investigation or the trial which was already in progress.

6. The Hon’ble High Court eventually concluded that in the above  view of the matter, there was no justification in withholding the  information relating to office notings sought by the Petitioner. Consequently, the impugned order of the Central Information Commission was modified to the extent that the Respondent Bank was directed to make available to the Petitioner the said  information within two weeks, however, leaving it open to the Respondent  Bank that while doing so it could  conceal the names of any of the  other officers whose names might be reflected. 

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WHETHER AN ORGANISATION IS 'STATE' IN TERMS OF ARTICLE 12 OF THE CONSTITUTION IS NOT RELEVANT TO DECIDE WHETHER IT IS A PUBLIC AUTHORITY FOR THE PURPOSES OF THE RTI ACT . THE DEFINITION OF PUBLIC AUTHORITY UNDER RTI ACT DOES NOT TALK OF 'DEEP AND PERVASIVE' CONTROL . IT IS ENOUGH IF IT IS SHOWN THAT THE ORGANISATION IS 'CONTROLLED' BY THE APPROPRIATE GOVERNMENT.
[IN THE HIGH COURT OF DELHI AT NEW DELHI-W.P.(C) No. 8219 of 2009-INDIAN RAILWAY WELFARE ORGANISATION versus D.M. GAUTAM & ANR. O R D E R 03.05.2010   W.P.(C) No. 8219 of 2009 & CM No. 4976 of 2009 (for stay)]

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1. Is the Indian Railway Welfare Organisation (“IRWO‟) a public authority  within the meaning of Section 2(1)(h) of the Right to Information Act, 2005  (“RTI Act‟)? The Central Information Commission („CIC‟) has in the  impugned order answered the said question in the affirmative. The CIC‟s  order is under challenge in the present writ petition by the IRWO.

2. The IRWO states that it is a society registered under the Societies  Registration Act of 1860. Its principal object is to promote and provide  dwelling units all over India to serving and retired railway personnel and  their widows on a no profit no loss basis. The dwelling units provided by  the IRWO are on self-financing basis. It is stated that the IRWO’s  memorandum specifies that the sources of funds of the IRWO would be predominantly and chiefly from nationalized and commercial banks. It is  submitted that IRWO receives no grant from the Railway Board or the  Central Government. It received a loan of Rs. 10 crores from the Ministry  of Railways which has since been repaid. A loan of Rs. 6 crores was taken from the Railway public sector undertakings (PSUs) of which only Rs. 1.2  crores remains to be paid. IRWO submits that its affairs are administered by a governing body of which the Member (Staff) Railway Board is the ex-officio chairman. It is submitted that the IRWO is neither an agent nor an  instrumentality of State within the meaning of Article 12 of the Constitution  of India. It maintains that there is neither a deep nor a pervasive control of  the IRWO by the Indian Railways or the Ministry of Railways. There is no substantial funding of the IRWO either directly or indirectly by funds  provided by the appropriate government, i.e the central government.

 3. In the impugned order, the CIC has highlighted the following factors for concluding that IRWO is a “public authority‟ within the meaning of Section  2(1) (h) of the RTI Act:

(a) IRWO is indirectly owned, controlled and substantially financed by the  Railway Board and the Ministry of Railways.

(b) The initiation of the registration of the IRWO was by the Ministry of  Railways. The basic infrastructure including land was also provided by the  Railway Board and the Ministry of Railways.

(c) The initial loan of Rs.10 crores and the loans by the Railway PSUs  constituted indirect financing of the IRWO.

(d) Property provided to the IRWO for its head quarters in Delhi was at a  very nominal rate and that also constituted indirect financing by the central government.

(e) IRWO works for the welfare of Railway employees and if a regime of  transparency is ushered, the faith of Railway employees in it would be  strengthened.

4. Learned counsel for the Petitioner submits that the IRWO had written to  the Adviser, Land and Amenities, Railway Board on 10th May 2006  pointing out why it was not a public authority under Section 2(1)(h) of the  RTI Act. No reply in response thereto was received from the Railway Board. On the other hand, at a meeting held to discuss the question of  granting of loan to the IRWO by the Ministry of Railways, the Railway  Board opined as under:

 “IRWO is an independent organization. Ministry of  Railway does not give any grant or loan to an  independent organization. It cannot form part of our budget. It is correct that financial assistance was provided in  1989-90. But that was with the approval of the Ministry  of Finance. In this case also it has to be with the  approval of Ministry of Finance. Further, as per the extant orders on `New Service/New  Instrument of Service‟, loans to be provided to  Public/Private institutions require Parliament’s  approval.”

5. It is submitted that it is not as if IRWO is granted a loan by the Ministry  of Railways as and when it raises a demand. The Ministry of Railways exercises no control, whether administrative or financial, over the working  of the IRWO. There are only 4 officials in the Ministry of Railways in ex officio capacity out of the total 19 members in the governing body of the  IRWO while the others are non-government members. No member of the  governing body is nominated by the central government and no member can  be removed by the central government. It is, therefore, submitted that there  is no control of the IRWO by the central government. There is also no  substantial financial assistance received by the IRWO from the Ministry of Railways.

6. Learned counsel for Respondent No. 1, on the other hand, highlights  several other factors which make the IRWO a public authority for the  purposes of the RTI Act. First, the Union Railway Minister in a budget  speech made in Parliament in 1989-90 announced the registration of the  IRWO and highlighted the fact that it had started its activities with a loan of  Rs. 3 crores provided by the Ministry of Finance. Further, a sum of Rs. 10  crores had been proposed as a loan to the IRWO by way of capital in the  Railway Budget of 1990-91. Secondly, in the registration process of the  Society, the Ministry of Railways was the sole sponsor. The relevant  extracts of the registration papers including a letter dated 20th September  1989 written by the Member (Staff) of the Railway Board to the Registrar of Societies stating that the “Ministry of Railways have decided to set up a  Society to be known as Indian Railways Welfare Organisation…” is relied upon.

7. Thirdly, as regards the management and control which the Ministry of  Railways/Railway Board exercises over the IRWO, the following factors  are highlighted: - Chairman, Railway Board is the Patron of the IRWO - Member (Staff) Railway Board is the ex-officio Chairman  IRWO and is a member of its Governing Body - Executive Director, Establishment, Railway Board is a  member of the Governing Body - Executive Director, Finance, Railway Board is a member of  the Governing Body - Executive Director/Adviser, Land Management is a member of  the Governing Body - Managing Director, IRWO is appointed by nomination by its  Patron (who is the Chairman, Railway Board) and the MD is a  member of the Governing Body - Director (Technical), IRWO is appointed by nomination by  Member (Staff), Railway Board (who is the Chairman, IRWO)  and is a member of the Governing Body  Director (Finance) IRWO is appointed by nomination by the  Member (Staff) Railway Board (who is the Chairman, IRWO)  and is a member of the Governing Body - Four co-opted Members in the Governing Body of IRWO are  nominated/approved by the Chairman, Railway Board who is  also the Patron, IRWO - IRWO Grievance Committee (a permanent body) is chaired by  the Adviser, Land and Amenities, Railway Board, who is a  member of the Governing Body of the IRWO. He is also the  Head of the Land and Amenities Directorate of the Railway  Board. - All issues of the IRWO including appointment of Directors,  terms and conditions of their service including their tenure, house rent etc., demands and representations of IRWO  employees are processed by the Land and Amenities  Directorate of the Railway Board. IRWO was instructed to  submit all cases to that Directorate requiring approval of the  Railway Board.

8. As regards financial assistance, apart from the above factors, it is pointed out that in 1998 on the request of the IRWO some of the PSUs of the  Ministry of Railways i.e. IRCON, RITES and CONCOR were directed to  give Rs. 2 crores each as soft loan to the IRWO. Further a request for a  loan of Rs.100 crores was considered by the Ministry of Railways recently.  It is also pointed out that the Railway Board sanctions complimentary  passes to officers and staff of IRWO every year. There are 14 sets of passes  for the Managing Director/Directors, 15 sets of passes for General  Managers, 15 sets of posts for other officers and staff. Importantly, it is pointed out that the IRWO has its Corporate Office (Headquarters) in Delhi  and a number of Zonal Offices which have been provided land/office  accommodation by the Ministry of Railways on either very nominal charges  or without any charges. A list of 9 such offices has been set out in the  counter affidavit in the present writ petition. As far as Delhi is concerned, it is pointed out that office space has been provided for the headquarters of  the IRWO in the Delhi Railway Office Complex, Shivaji Bridge (Minto  Bridge) behind Shankar Market, New Delhi on licence basis for 21 years  for just Rs.12,400 for approximately 3,000 sq. ft. area. The market rent  could be at least Rs. 3 lakhs per month or Rs. 36 lakhs per year. There are  other factors highlighted in the counter affidavit to show that in fact it is the  Ministry of Railways and/or the Railway Board that controls the IRWO. It  is therefore submitted that the IRWO answers the description of a public authority under Section 2(1)(h) of the RTI Act.

9. The above submissions have been considered. There is no denial by the  IRWO that it is a society which was formed by a letter written by the  Member (Staff), Railway Board to the Registrar of Societies. However, the said letter is sought to be explained away by saying that the Member (Staff)  was not perhaps aware of the legal status of IRWO. This Court is unable to  appreciate this submission. The question is not whether the person who sent that letter was aware of the legal status but whether in fact it was the Indian  Railways which formed the society. On that score, there appears to be no doubt.

10. Section 2(1)(h) of the RTI Act defines the expression “public authority‟  to mean any authority or body or institution of self-government established  or constituted by a law made by the Parliament or State Legislature or by a  Notification or order by the appropriate Government and includes under  Section 2(1)(h) (d) (i) and (ii):

 (i) body owned, controlled or substantially financed;

(ii) non-Government organization substantially financed, directly or indirectly by funds provided by  the appropriate Government;

11. As far as the present case is concerned, the question can be approached  from two angles. The first is whether IRWO is controlled by the  appropriate Government. The second is whether as a non governmental organisation it is substantially financed directly or indirectly by funds  provided by the central government.

12. In a judgment dated 7th January 2010 of the learned Single Judge of this  Court in Indian Olympic Association v. Veeresh Malik [W.P.(C) No. 876 of 2007] it has been observed, in the context of Section 2(h) as under:

“In the case of control, or ownership, the intention here was  that the irrespective of the constitution (i.e. it might not be  under or by a notification), if there was substantial financing,  by the appropriate government, and ownership or control, the  body is deemed to be a public authority. This definition would  comprehend societies, co-operative societies, trusts, and other  institutions where there is control, ownership, (of the appropriate government) or substantial financing. The second  class, i.e. non-government organization, by its description, is  such as cannot be “constituted” or “established” by or under a  statute, or notification.”

13. As regards what could constitute substantial financing, the Court in  Indian Olympic Association v. Veeresh Malik observed as under:

“60.This Court therefore, concludes that what amounts to  “substantial” financing cannot be straight-jacketed into rigid  formulae, of universal application. Of necessity, each case would have to be examined on its own facts. That the percentage of funding is not “majority” financing, or that the body is an impermanent one, are not material. Equally, that the institution or organization is not controlled, and is autonomous is irrelevant; indeed, the concept of non-government organization means that it is independent of any  manner of government control in its establishment, or management. That the organization does not perform – or pre-dominantly perform -“public” duties too, may not be material, as long as the object for  funding is achieving a felt need of a section of the public, or to secure larger societal goals. To the extent of such funding, indeed, the  organization may be a tool, or vehicle for the executive government’s policy fulfillment plan.”

14. As regards the control of IRWO, this Court finds that the key posts in  the IRWO are held by officials of the Railway Board although in an ex officio capacity. It is not denied that the Chairman of the Railway Board is  the patron of the Indian Railways and the Member(Staff), Railway Board is  the Chairman of IRWO in ex officio capacity; that the Executive Directors  of Establishment, Finance and Land Management are all members of the  governing body; that the Managing Director of the IRWO is appointed by  nomination by the Chairman, Railway Board and the Director (Technical),  IRWO is by nomination by the Member (Staff) of Railway Board and is  also a member of the governing body. The Director (Finance), IRWO is nominated by the Member (Staff) Railway Board. Four co-opted members are nominated/approved by the Chairman Railway Board. The IRWO Grievance Committee which is a permanent body is chaired by the Adviser,  Land & Amenities, Railway Board. The above factors point to the control of the IRWO by the Ministry of Railways.

15. At this juncture it must be observed that the submission that the control  has to be “deep and pervasive‟ is based on the decisions rendered by the  courts in the context of Article 12 of the Constitution. In the first place, the question whether IRWO is “state” is not relevant for answering the question  whether it is a public authority for the purposes of the RTI Act. The definition of “public authority‟ under Section 2 (1) (h) RTI Act does not talk  of “deep and pervasive‟ control. It is enough if it is shown that the authority  is “controlled‟ by the central government. The composition of the  Governing Body of IRWO and the manner of appointments of key  personnel of the IRWO as noticed hereinbefore bears testimony to the control that the central government through the Ministry of Railways and Railway Board has over IRWO.

16. As regards the financing, it is important to note that apart from the past  financing through loans by the Indian Railways and the Ministry of Railways even the recent proposal from the Ministry of Railways for a loan to the IRWO has not been rejected. All that is said is that “in this case also  it has to be with the approval of the Ministry of Finance”. Also importantly  as regards the request by Indian Railways for loan from the PSUs it has  been observed as under:

 “IRWO requested for loan from Railway PSUs like Rs.  20 crores each from RITES, CONCOR and IRCON and Rs.10 crores each from IRCTC & Railtel Corporation at the same term and conditions as last time as mentioned at Genesis above. IRWO has discussed the matter with IRFC and advised that IRFC is agreeable to advance loan to IRWO at appropriate terms. However, IRWO still feels that possibilities may be explored for advancing the loan from Railway PSUs (viz. IRCON, RITES, CONCOR, etc.) since rate of interest from bank would be high.”

 17. It is, therefore, not possible to agree with the contentions of learned  counsel for the Petitioner that there is no substantial financing of the IRWO  through funds directly or indirectly provided by the Ministry of Railways. The point here is whether such financing is accessible to the IRWO. The answer to that question has to be in the affirmative. This distinguishes IRWO from any other society that may not have similar access to government funds. The other factors highlighted in the counter affidavit filed by the Respondents also demonstrate the control over the IRWO of the Ministry of Railways.

18. For the aforementioned reasons, this Court is satisfied that no error has been committed by the CIC in holding that IRWO is a public authority within the meaning of Section 2(1)(h) of the RTI Act and directing disclosure to the Respondent of the information sought by them from the IRWO. The writ petition is dismissed. The interim order is vacated and the application is also dismissed.

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WHETHER THE INFORMATION ABOUT THE ADDRESS OF A CENTRAL GOVERNMENT PETITIONER SOUGHT BY A PRIVATE PERSON WHO HAD OBTAINED A COURT DECREE AGAINST THE SAID PETITIONER CAN BE REFUSED BY THE PUBLIC AUTHORITY MERELY ON THE GROUND THAT IT IS A MATTER OF PRIVATE LITIGATION DEVOID OF PUBLIC INTEREST

[In the High court of Judicature at Madras the case of M. Kaliaperumal vs (1) the Central Information Commissioner; (2) the Appellate Authority-cum- Director of Postal Services, Andhra Pradesh ; and (3) the Public Information Officer-cum-Superintendent of Post Offices, Gudur Division, Gudur in W. P. No. 16070 of 2009 and M. P. No. of 2009.]

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M. Kaliaperumal had in his application dated 11/03/2008 submitted to the Superintendent of Post Offices, Gudur Division under Section 6 of the RTI Act, 2005 sought the information about the address of one K. Ramachandra Rao, a retired Sub-Post Master who was drawing his pension from Gudur Head Post Office, as he was not available at the address indicated in the official document. The reason given by M. Kaliaperumal was that he had secured a judgement and decree against him from the civil court which he wanted to execute.

2.However, the PIO-Cum-Superintendent of Posts  rejected the application of M. Kaliaperumal  on the ground that it was a matter of private litigation which did not come under the purview of a Public Interest Litigation. The Appeal preferred before the First Appellate Authority-Cum-Director of Postal Services was also turned down in terms of Section 8(1)(j)-Exemption Clause- read with Section 11-Third Party information-of the Act and that such information could not be furnished as no public interest was involved. M. Kaliaperumal had in this appeal elaborated that the said Ramachandra Rao had committed forgery and the court had also awarded costs in his civil suit and that in absence of his actual address he was unable to take further civil and criminal action against him. Aggrieved by this order, M. Kaliaperumal filed a Second Appeal before the Central Information Commission (CIC)  in which he pleaded that the requested information was for the legal prosecution of Government of India ‘s Pensioner and hence, the information sought was prohibited neither under Section 8(1)(j) nor under 8(d) of the RTI Act. CIC, however, rejected the Second appeal by an order dated 01/05/2009 while stating in paragraph 5 of the order that:

“5.The Commission observed, based on the documents provided, that there is a private litigation case between the Appellant and Mr. Ramachandra Rao and that there is no relationship of the disclosure with any public activity or interest and is of the opinion that the address can be provided by the Court to the Applicant, if required and denies the information under Section 8(1)(g) of the RTI Act.”

3.In light of the foregoing account, the short question before the Hon’ble High Court was whether the Petitioner was entitled to get the information sought for by him. The Hon’ble High Court decided the matter in favour of the Petitioner after taking into account, inter alia, the following  precedents and facts of the case:

(i) The High Court of Judiacture at Madras had in V. V. Mineral Vs. The Director of Geology & Mining, Chinnai, inter alia, held that the RTI Act did not give any full immunity for disclosure of a third party document in as much as the authorities under the RTI Act were required to weigh the pros and cons of the conflict of interest between private commercial interest and public interest in the disclosure of such information;

(ii)When the list of loan defaulters together with their photographs were sought to be published in newspapares by a Nationalised Bank, the same was challenged by placing reliance upon the right to privacy and also by stating that the Banking Laws provided secrecy clause. V.Ramasubramanian, J. vide his judgment in K.J.Doraisamy Vs. The Assistant General Manager, State Bank of India, Erode Branch, Erode‐638 001 reported in 2006 (5) CTC 829 rejected such claims. In doing so, he also placed reliance upon the provisions of the RTI Act and rejected the right of privacy claimed by the petitioner therein. He  observed, inter alia, that the provision contained in Section 4(2) of the RTI Act, 2005 relating to suo moto disclosure of information by the Public Authorities left no room for doubt that the ‘Right to Privacy’ fades out in front of the ‘Right to Information’ and ‘larger public interest’. The said judgment was also confirmed by a division bench of the High Court, Madras;

(iii) If it is seen in the context of the above legal precedents, the petitioner’s demand for the residential address of a Central Government pensioner would be denied solely on the ground that the petitioner is pursuing a private civil litigation and therefore, such an information could not be furnished. In the present case, however, the motive for the demand for a Central Government pensioner’s exact whereabouts in execution of a civil court’s decree may not be irrelevant. Whether the pensioner really exists on the date of receipt of his pension or whether any fraudulent claims are being made from the Central Government can also be a relevant factor. In those cases, if any person wants to find out whether the pension amount paid by the Central Government is really going to an actual beneficiary or bogus claims are being made, such information cannot be denied. A question came up before the Supreme Court as to whether a pensioner goes out of control of the Government once he retired from service and becomes a pensioner. After referring to the relevant rule, the Supreme Court in State of Maharashtra Vs. M.H.Mazumdar reported in 1988 (2) SCC 52, in paragraph 5 observed, inter alia, that a pensioner does not cease to become totally out of control from the Government. On the contrary, his conduct and character are continuously monitored by the Central Government. In that context, the whereabouts of such pensioner is also very much relevant and it cannot be a private information. The authorities are bound to help in execution of Court orders. Besides, there are many instances when it is alleged that   pension claims are made even in the name of dead persons. Therefore, such information cannot be shut out when a query is made regarding the real address of a Government pensioner.  

4.In the light of the above, the Hon’ble High Court set aside the impugned orders and  directed  the concerned to furnish the correct address of K.Ramachandra Rao to the petitioner within thirty days from the date of receipt of copy of the order.

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INFORMATION RELATING TO ANY PRIVATE BODY WHICH IS ACCESSIBLE TO A PUBLIC AUTHORITY UNDER ANY OTHER LAW FOR THE TIME BEING IN FORCE FALLS UNDER THE PURVIEW OF THE RTI ACT, 2005 AND HAS TO BE SUPPLIED TO THE APPLICANT.

[N THE HIGH COURT OF DELHI AT NEW DELHI- WRIT PETITION (CIVIL) NO. 7265 OF 2007 IN THE CASE OF POORNA PRAJNA PUBLIC SCHOOL VERSUS CENTRAL INFORMATION COMMISSION & OTHERS DECIDED ON 25/09/2009]

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1. The petitioner Poorna Prajna Public School is a private unaided  school recognized under the Delhi School Education Act, 1973 (hereinafter  referred to as DSE Act, for short). Mr. D.K.Chopra, respondent no.4 herein, father of a former student of the petitioner School, had filed an application  under the Right to Information Act, 2005 (hereinafter referred to as the  RTI Act, for short) before the Public Information Officer appointed by the  Department of Education, Government of National Capital Territory of Delhi(GNCTD, for short) on or about 18th September, 2006. Respondent no.4 had asked for the following information :-

―1. Please provide me the information under RTI Act as to what decision were taken on my representations filed in your office Vasant Vihar file no.133/2005 and other offices. Why they were not communicated to me within stipulated period? What are the office rules?

2. MVS Thakur, Education Officer told me on 25/01/2006 that they can not interfere much in the non-aided school, but what is the role of your observer who was present in Executive Committee Meeting in Pooran Prajna Public School on 24/01/2006. If school does not do two meetings in a year what punishment can be given and who can give it.

3. I may be provided all copies of the minutes of the school since 1988 and action taken report.

2. Information in respect of query no.3 i.e. copies of the minutes of the managing committee were not available with the Department of Education. Accordingly, a request was sent by the Department of Education to the petitioner School. The petitioner School by their letter dated 30th August, 2007 submitted that they were a private unaided institution and not covered under the RTI Act and respondent no.4 had no locus standi to ask for information. It was pointed out that respondent no.4 had filed a writ petition in the High Court against the petitioner School which was dismissed. The petitioner also relied upon Rule 180(i) of the Delhi School Education Rules, 1973 (hereinafter referred to as DSE Rules, for short) and submitted that the information sought for cannot be furnished and was outside the purview of the RTI Act.

3. Not satisfied with the order passed by the public information officer, the respondent no.4 filed the first appeal and then approached the Central Information Commission (hereinafter referred to as CIC, for short).

4. The CIC by their impugned Order dated 12th September, 2007 has held that the petitioner School was indirectly funded by the Government as it enjoyed income tax concessions; was provided with land at subsidized rates etc. Further, the petitioner school was a ‘public authority‘ as defined in Section 2(h) of the RTI Act. Lastly, the Information Commissioner has held that the public authority i.e. GNCTD can ask for information from the petitioner School and therefore the public information officer should have collected the information with regard to the minutes of the managing committee from the petitioner School and furnished the same to the respondent no.4. It was noted that all aided and unaided schools perform governmental function of promoting high quality education and further an officer of the GNCTD was nominated by the Directorate of Education as a member of the managing committee. GNCTD has control over the functioning of the private schools and has access to the information required to be furnished.

5. RTI Act was enacted in the year 2005 as a progressive and enabling with the object of assigning meaningful role and providing access to the citizens. It ensures openness and transparency consistent with the concept of participatory democracy and constitutional right to seek information and be informed. It also ensures that the Government and their instrumentalities are accountable to the governed and checks corruption, harassment and red-tapism.

6. The provisions of the RTI Act have not been challenged by the petitioner School in the present petition. The contentions raised and argued relate to interpretation of the provisions of RTI Act.

7. The terms ―information and ―right to information have been defined in Sections 2(f) and 2(j) of the RTI Act and read as under:-

―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.

2(j). ―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 –(i) inspection of work, documents, records;(ii) taking notes, extracts, or certified copies of documents or records;(iii) taking certified samples of material; (iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device;  (emphasis supplied)

8. Information as defined in Section 2(f) means details or material available with the public authority. The later portion of Section 2(f) expands the definition to include details or material which can be accessed  under any other law from others. The two definitions have to be read harmoniously. The term ―held by or under the control of any public authority in Section 2(j) of the RTI Act has to be read in a manner that it effectuates and is in harmony with the definition of the term ―information as defined in Section 2(f)…….Therefore,if a public authority has a right and is entitled to access information from a private body, under any other law, it is ―information as defined in Section 2(f) of the RTI Act. The term ―held by the or under the control of the public authority used in Section 2(j) of the RTI Act will include information which the public authority is entitled to access under any other law from a private body. A private body need not be a public authority and the said term ―private body has been used to distinguish and in contradistinction to the term―public authority as defined in Section 2(h) of the RTI Act. Thus, information which a public authority is entitled to access, under any law, from private body, is information as defined under Section 2(f) of the RTI Act and has to be furnished.

9. It may be appropriate here to refer to the definition of the term ―third party in Section 2(n) of the RTI Act which reads as under:-

―2(n). ―third party means a person other than the citizen making a request for information and includes a public authority.

10. Thus the term ―third party includes not only the public authority but also any private body or person other than the citizen making request for the information. The petitioner School, a private body, will be a third party under Section 2(n) of the RTI Act. The above interpretation is in consonance with the provisions of Sections 11(1) and 19(4) of the RTI Act. Section 11 prescribes the procedure to be followed when a public information officer is required to disclose information which relates to or has been supplied by a third party and has been treated as confidential by the said third party. Section 19(4) stipulates that when an appeal is preferred before the CIC relating to information of a third party, reasonable opportunity of hearing will be granted to the third party before the appeal is decided. Third party as stated above includes a private body. As held above, a public authority is not a private body.

12. A private body or third party can take objections under Section 8 of the RTI Act before the public information officer or the CIC. In terms of Section 11(4) of the RTI Act, an order under Section 11(3) rejecting objections of the third party is appealable under Section 19 of the RTI Act before the CIC.

13. Information available with the public authority falls within section 2(f) of the RTI Act. The last part of section 2 (f) broadens the scope of the term ‘information‘ to include information which is not available, but can be accessed by the public authority from a private authority. Such information relating to a private body should be accessible to the public authority under any other law. Therefore, section 2(f) of the RTI Act requires examination of the relevant statute or law, as broadly understood, under which a public authority can access information from a private body. If law or statute permits and allows the public authority to access the information relating to a private body, it will fall within the four corners of Section 2(f) of the RTI Act. If there are requirements in the nature of preconditions and restrictions to be satisfied by the public authority before information be accessed and asked to be furnished from a private body, then such preconditions and restrictions have to be satisfied. A public authority cannot act contrary to the law/statute and direct a private body to furnish information. Accordingly, if there is a bar, prohibition, restriction or precondition under any statute for directing a private body to furnish information, the said bar, prohibition, restriction or precondition will continue to apply and only when the conditions are satisfied, the public authority is obliged to get information. Entitlement of the public authority to ask for information from a private body is required to be satisfied.

14. Section 22 of the RTI Act, reads:- “22. Act to have overriding effect.—The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

15. Section 22 of the RTI Act is an overriding clause but it does not modify any other statute or enactment, on the question of right and power of a public authority to call for information relating to a private body. A bar, prohibition or restriction in a statutory enactment, before information can be accessed by a public authority, continues to apply and is not obliterated by section 22 of the RTI Act. Section 2(f) of the RTI Act does not bring about any modification or amendment in any other enactment, which bars or prohibits or imposes pre-condition for accessing information  from private bodies. Rather, it upholds and accepts the said position when it uses the expression ―which can be accessed i.e. the public authority should be in a position and entitled to ask for the said information. Section 22 of the RTI Act, an overriding provision does not mitigate against the said interpretation for there is no contradiction or conflict between the provisions of Section 2(f) of the RTI Act and other statutory enactments/law. Section 22 will apply only when there is a conflict between the RTI Act and Official Secrets Act or any other enactment. As a private body, the Petitioner School is entitled to plead that they cannot be compelled to furnish information because the public authority is not entitled to information/documents under the law. The petitioner school can also claim that information should not be furnished because it falls under any of the sub-clauses to Section 8 of the RTI Act. Any such claim, when made, has to be considered by the public information officer, first authority and the CIC. In other words, a private body will be entitled to the same protection as is available to a public authority including protection against unwarranted invasion of privacy unless there is a finding that the disclosure is in larger public interest.

16. Section 8 of the RTI Act is a non-obstante provision which applies notwithstanding other sections of the RTI Act. In other words, Section 8 over-rides other provisions of the RTI Act. Section 8 stipulates the exceptions or rules when information is not required to be furnished. Section 8 of the RTI Act is a complete code in itself. Section 8 does not modify the term ―information as defined in Section 2(f) of the RTI Act. Whether or not Section 8 applies is required to be examined when information under Section 2(f) is asked for. To deny ―information as defined in section 2(f), the case must be brought under any of the clauses of Section 8 of the RTI Act. ―Right to information under the RTI Act is a norm and Section 8 adumbrates exceptions i.e. when information is not to be supplied. It is not possible to accept the contention of the petitioner School that ―information as defined in Section 2(f) need not be furnished under the RTI Act for reasons and grounds not covered in Section 8. This  will be contrary to the scheme of the RTI Act. Information as defined in Section 2(f) of the RTI Act is to be furnished and supplied, unless a case falls under sub-clauses (a) to (j) of Section 8(1) of the RTI Act. Thus all information including information furnished and relating to private bodies available with public authority is covered by Section 2(f) of the RTI Act. Further, information which a public authority can access under any other law from a private body is also ―information under section 2(f). The public authority should be entitled to ask for the said information under law from the private body. Details available with a public authority about a private body are ―information and details which can be accessed by the public authority from a private body are also ―information but the law should permit and entitle the public authority to ask for the said details from a private body. Restrictions, conditions and prerequisites imposed and prescribed by law should be satisfied. The question whether information  should be denied requires reference to Section 8 of the RTI Act.

17. Learned counsel for the petitioner School submitted that the Directorate of Education does not have an access to the minutes of the managing committee. Under Rule 180 (i) of the DSE Rules, the private unaided schools are required to submit return and documents in accordance with Appendix 2 thereto and minutes of the managing committee are not included in Appendix 2. Rule 180 (i) of the DSE Rules is not the only provision in the DSE Rules under which Directorate of Education are entitled to have access to the records of a private unaided school. Rule 50 of the DSE Rules, stipulates conditions for recognition of a private school and states that no private school shall be recognized or continue to be recognized unless the said school fulfills the conditions mentioned in the said Section. Clause (xviii) of Rule 50 of the DSE Rules as under:-

―50. Conditions for recognition.- No private school shall be recognized, or continue to be -WPC No.7265/2007 Page 11 -recognized, by the appropriate authority unless the school fulfills the following conditions, namely-

(i) – (xvii) x x x x x x

(xviii) the school furnishes such reports and information as may be required by the Director from time to time and complies with such instructions of the appropriate authority or the Director as may be issued to secure the continued fulfillment of the condition of recognition or the removal of deficiencies in the working of the school;

18. Under Rule 50(xviii) of the DSE Rules, the Directorate of Education can issue instructions and can call upon the school to furnish information required on conditions mentioned therein being satisfied. Rule 50 therefore authorizes the public authority to have access to information or records of a private body i.e. a private unaided school. Validity of Rule 50(xviii) of the DSE Rules is not challenged before me. Under Section 5 of the DSE Act, each recognized school must have a management committee. The management committee must frame a scheme for management of the school in accordance with the Rules and with the previous approval of the appropriate authority. Rule 59(1)(b)(v) of the DSE Rules states that the Directorate of Education will nominate two members of the managing committee of whom one shall be an educationist and the other an officer of the Directorate of Education. Thus an officer of the Directorate of Education is to be nominated as a member of the management committee. Minutes of the management committee have to be circulated and sent to the officer of the Directorate of Education. Obviously, the minutes once circulated to the officer of the Directorate of Education have to be regarded as ‘information‘ accessible to the Directorate of Education, GNCTD. In these circumstances, it cannot be said that information in the form of minutes of the meeting of the management committee are not covered under Section 2(f) of the RTI Act.

19. In view of the above findings, the question whether the petitioner school is a public authority is left open and not decided. Writ Petition has no merit and is accordingly dismissed…  

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