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Madhya Pradesh High Court · body

2008 DIGILAW 1112 (MP)

Amarchand Bawaria v. Union of India

2008-09-05

A.M.NAIK

body2008
ORDER 1. Contonment Board, Jabalpur passed Resolution No. 37 prescribing thereby the ratesfor issue of information and copies under the Right to Information Act (hereinafter referred to as "the Act" for convenience) which is on record as Annexure P-2. Petitioner has challenged it for want of powers and jurisdiction being violative of the provisions of the said Act and rules made there under. 2. Following reliefs have been claimed by the petitioner. "(i) That the Hon'ble Court may issue a writ of mandamus by quashing the Resolution No. 37 passed by the Cantonment Board, Jabalpur on 20.12.2005 Annexure P-2. (ii) That the Hon'ble Court may also direct the respondent No.3 to refund the amount taken from other applicants who have applied under Right to Information Act, 2005. (iii) That the Hon'ble Court may direct the respondent No.3 to intimate the applicants whose amount is to be returned. (iv) That the Hon'ble Court may direct the respondent No.1 to take disciplinary action against the Chief Executive Officer of the Cantonment Board, Jabalpur who had taken illegal amounts for giving copies under the Right to Information Act, 2005." 3. No facts of the writ petition in particular are needed to be mentioned except that Right to Information Act, 2005 came into force with effect from 15th of June, 2005. Under section 6 of the Act, a person, desirous of obtaining information under the Act shall make an application accompanied by such fee as may be prescribed. Information is liable to be provided on payment of such fee as may be prescribed. In exercise of powers conferred by clauses (b) and (c) of sub-section (2) of section 27 of the Act, the Central Government made the Right to Information (Regulation of Fee and Cost) Rules, 2005 (hereinafter referred to as "the Rules" for convenience). Rule 4 prescribes the charges as follows: 4. In exercise of powers conferred by clauses (b) and (c) of sub-section (2) of section 27 of the Act, the Central Government made the Right to Information (Regulation of Fee and Cost) Rules, 2005 (hereinafter referred to as "the Rules" for convenience). Rule 4 prescribes the charges as follows: 4. For providing the information under sub-section (1) of section 7, the fee shall be charged by way of cash against proper receipt of by demand draft or bankers cheque payable to the Accounts Officer of the public authority at the following rates: (a) rupees two for each page (in A4 or A3 size paper) created or copied; (b) actual charge or cost price of a copy in larger size paper; (c) actual cost of price for samples or models; and (d) for inspection of records, no fee for the first hour; and a fee of rupees five for each subsequent hour (or fraction thereof). 4. Cantonment Board Jabalpur passed Resolution No. 37 dated 20.12.2005 prescribing thereby Rs. 50/- per copy per page for copy of document of A4 size. Similarly, other rates of cost were also prescribed by the said resolution. 5. Contention of the petitioner is that the said resolution prescribing fee and cost at higher side in contravention of the Fee and Cost Rules is illegal being beyond the powers and the same is liable to be quashed. 6. Petitioner sought certain information by submitting application under section 6 (l) of the Act vide Annexure P-3 dated 4.5.2007. He was asked to deposit Rs. 6501- towards cost for providing information vide Annexure P-4 dated 30th of May, 2007. This compelled the petitioner to submit the writ petition with the reliefs mentioned hereinabove. 7. Respondent No.1 as well as Nos. 3 and 4 submitted their separate replies. It is contended by learned counsel for the respondent No.1 that the petition having preferred without exhausting statutory remedies available to the petitioner is not liable to be entertained. Section 19 of the Act provides for an appeal to an Officer senior in rank to the Central Public Information Officer and also provides for a second appeal to the Central Information Commission. This apart, section 18 (d) of the Act empowers the Central Information Commission to receive and enquire into any complaint with regard to amount of fee. Section 19 of the Act provides for an appeal to an Officer senior in rank to the Central Public Information Officer and also provides for a second appeal to the Central Information Commission. This apart, section 18 (d) of the Act empowers the Central Information Commission to receive and enquire into any complaint with regard to amount of fee. Petitioner without availing the aforesaid remedies has moved in writ jurisdiction in a prematured manner. On merits, it is contended that the Cantonment Board, Jabalpur has determined the Schedule of fees looking to the schedule adopted by the M.P. Government and the Hon'ble High Court of M.P., Jabalpur. The Cantonment Board, Jabalpur had done so as the expenses incurred in issuing copies and information were much higher than the fees being paid by the applicants seeking information. The Cantonment Board, Jabalpur being a local body akin to the Municipal Corporation adopted the Schedule of fees existing for the Municipal Corporations in the State of M.P. However, during pendency of this writ petition, on receipt of representation from various sections of people containing request for reduction of fee, the Cantonment Board, Jabalpur has withdrawn its Resolution No. 37 dated 20.12.2005 vide Resolution No. 6 dated 13.9.2007. 8. In the counter reply on behalf of respondents No.3 and 4, it is contended that under section 57 of the Cantonments Act, 2006, the Central Government has got the power to review any decision or order of the Board and to pass such order thereon as it may deem fit. Accordingly, the petitioner could have made a representation to the Central Government. This apart, under section 18 (1) (d) of the Act, petitioner could have made a representation before the Central Information, Commission. Thus, without invoking the aforesaid remedies, the present writ petition is liable to be dismissed being prematured and for not availing the alternative remedy. On merits, it is contended that the information is sought at times from various old records more than 50 years old. It requires involvement of staff which is already short. Considering these and various other aspects, reasonable cost for providing information has been prescribed vide Resolution No. 37 dated 20.12.2005 which is within the powers of the Cantonment Board, Jabalpur being municipal body. It has been mentioned specifically that the Hon'ble High Court has fixed minimum fees of Rs. 50/- per application in case of general application, Rs. Considering these and various other aspects, reasonable cost for providing information has been prescribed vide Resolution No. 37 dated 20.12.2005 which is within the powers of the Cantonment Board, Jabalpur being municipal body. It has been mentioned specifically that the Hon'ble High Court has fixed minimum fees of Rs. 50/- per application in case of general application, Rs. 500/- in case of information related to tenders, documents, bids, business regulations and the actual cost of medium or printing cost price in case of other documents vide No. 15-R(J) dated 10th of January, 2006 copy of which is on record as Annexure R-2. However, during pendency of the writ petition, Cantonment Board, Jabalpur acceded to the request of various sections of people and withdrew Resolution No. 37 dated 20.12.2005 vide Resolution No.6 dated 13.9.2007. Accordingly, it is contended that this petition has been rendered infructuous. 9. Although resolution in question has already been withdrawn, in view of the stand taken by the respondents that the Resolution No. 37 was rightly passed and further in view of the relief for refund of costs, it is thought proper to decide the issue raised herein. 10. Rule making powers are provided by virtue of sections 27 and 28 of the Act. They read as follows -- Section 27 -- Power to make rules by Appropriate Government -- (1) The Appropriate Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act. (2) In particular~ and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely-- (a) the cost of the medium or print cost price of the materials to be disseminated under sub-section (4) of section 4; (b) the fee payable under sub-section (1) of section 6; (c) the fee payable under sub-section (1) and (5) of section 7; (d) the salaries and allowances payable to and the terms and conditions of service of the officers and other employees under sub-section (6) of section 13 and sub-section (6) of section 16; (e) the procedure to be adopted by the Central Information Commission or State Information, as the case may be, in deciding the appeals under sub-section (10) of section 19; and (f) any other matter which is required to be, or may be, prescribed. Section 28 -- Power to make rules by competent authority -- (1) the competent authority may, by notification in the Official Gazette, make rules to carry out the provisions 9f this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely -- (i) the cost of the medium or print cost price of the materials to be disseminated under sub-section (4) of section; (ii) the fee payable under sub-section (1) of section 6; (iii) the fee payable under sub-section (1) of section 7; and (iv)any other matter which is required to be, or may be, prescribed. 11. Fee and Cost Rules, 2005 have been framed by the Central Government in exercise of its power under clauses (b) and (c) of subsection (2) of section 27 of the Act. Section 28 empowers a competent authority to make rules to carry out the provisions of the Act. The term "Competent Authority" has been defined in clause (e) of section 2 of the Act in the following manner -- 2 (e) "Competent Authority" means -- (i) the Speaker in the case of the House of the People or the Legislative Assembly of a State or a Union Territory having such Assembly and the Chairman in the case of the Council of States of a Legislative Council of States; (ii) the Chief Justice of India in the case of Supreme Court; (iii) the Chief Justice of High Court in the case of a High Court; (iv) the President or the Governor, as the case may be, in the case of other authorities established or constituted by or under the Constitution; (v) the Administrator appointed under Article 239 of the Constitution; 12. It has been contended by the respondents in the return that the Cantonment Board is a local body like Municipal Council and is well competent to make the rules regarding fees and cost as made by this Court. Suffice to say that the Chief Justice of the High Court is a competent authority within the ambit of definition as contained in section 2 (e) of the Act and therefore, by virtue of section 28 he has powers to make rules with regard to fees and cost in exercise of powers under section 28 of the Act. Suffice to say that the Chief Justice of the High Court is a competent authority within the ambit of definition as contained in section 2 (e) of the Act and therefore, by virtue of section 28 he has powers to make rules with regard to fees and cost in exercise of powers under section 28 of the Act. Cantonment Board, Jabalpur being outside the purview of the term of 'competent authority' within the meaning of section 2 (e) of the Act is not competent like the Chief Justice of High Court to make rules. 13. In this view of the matter the subject Resolution No. 37 dated 20.12.2005 was without any power and had no legal sanctity. Reliance on the prescription of fee and cost by High Court is absolutely incorrect and misconceived because of the competency of the High Court by virtue of section 28 read with section 2 (e) of the Act. Since Resolution No. 37 has already been withdrawn it is not required to be quashed. 14. Since Resolution No. 37 was beyond the powers, realization/ receipt of money in excess of Fee and Cost Rules is equally illegal and by no stretch of imagination, respondents No.3 and 4 may be permitted to retain money contrary to their entitlement. Thus, the money received by the respondents No.3 and 4 in excess of the money liable to be paid according to Fee and Cost Rules is liable to be refunded to the persons who deposited the money. 15. In the result, the writ petition is allowed holding that the Resolution No. 37 dated 20.12.2005 was beyond the powers. Respondents No.3 and 4 are hereby directed to refund the excess money within three months after issuing advertisement in the newspaper having considerable circulation for seeking refund of excess money. Parties to bear their own costs.