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Calcutta High Court · body

2009 DIGILAW 28 (CAL)

Greenhood Co-operative Housing Society Ltd v. STATE OF WEST BENGAL

2009-01-21

SANJIB BANERJEE

body2009
Judgment :- (1) The added respondent, the person who made the request under Section 6 of the Right to Information Act, 2005, and the State Information Commissioner are vociferous in having the ad-interim order of December 29, 2008 vacated. The writ petitioner had complained of an order passed by the State Information Commissioner requiring a trunk kept in the custody of the Registrar of Co-operative Societies pursuant to orders made by a competent Court, to be opened for the purpose of certain documents as sought by the information seeker to be made available to the State Information Commissioner. At the time that the writ petition was received in the Christmas Vacation an order was made on December 29, 2008 staying the State Information Commissioners order of November 11, 2008 and the consequential order of December 12, 2008 passed by the Registrar of Co-operative Societies. (2) The writ petitioner makes two points. First, the writ petitioner says that since it is a Co-operative Society and the information sought related to it, at the very least, the State Information Commissioner should have sought its views before proceeding to require the documents to be brought. The second point that the writ petitioner makes is that the Registrar of Co-operative Societies was in custody of the trunk following an order of the Judicial Magistrate. The writ petitioner says whatever may be the authority of the State Information Commissioner under the Right to Information Act, 2005; he cannot act in derogation of the powers vested in a regular judicial authority as the Judicial Magistrate in the present case. (3) In addition, it is submitted on behalf of the writ petitioner that the provisions of Section 18(3) of the Right to Information Act would not apply in respect of any matter pertaining to a Co-operative Society as a Cooperative Society answers only to one master which is the Registrar under the West Bengal Co-operative Societies Act and Section 134 and Section 143 of the West Bengal Co-operative Societies Act would preclude the operation of Section 18(3) of the Right to Information Act in the present situation. (4) On behalf of the Commissioner and the added respondent it is submitted that the original order by which the request under Section 6 of the Right to Information Act was rejected, was not sustainable. (4) On behalf of the Commissioner and the added respondent it is submitted that the original order by which the request under Section 6 of the Right to Information Act was rejected, was not sustainable. They say that the appeal carried under Section 19(1) of the Right to Information Act before the appellate forum resulted in the appellate forum repeating the reason given by the Public Information Officer and there appears to be no application of mind by the first appellate authority. (5) There is a substantial merit in such contention. Under Section 8(3) of the Right to Information Act, the matters covered by clauses (a), (c) and (i) of Section 8(1) can be made available to a person making a request under Section 6 of the said Act if the request is made more than 20 years after a document covered by any of the three limbs of sub-section (i) had come into existence. Section 8(3) of the Right to Information Act, by no stretch of imagination, mandates that any request for information relating to a document that was in existence for a period of more than 20 years prior to the date of the request, cannot be acceded to. (6) The first ground urged by the writ petitioner that the writ petitioner ought to have been informed or the State Information Commissioner should, at least, have given a notice to the writ petitioner, is a matter which requires a closer consideration. Section 11 of the Right to Information Act provides that when a request is made under Section 6 of the said Act relating to any information concerning a third party or any information that has been supplied by a third party and has been treated as confidential by the third party, it is incumbent on the Information Officer (or the Appellate Authority, as the case may be), to give a written notice to the third party before the information is made available. The documents that the added respondent sought in this case, pertain to the petitioner Co-operative Society and are minutes of the meetings held by the petitioner society in the year 1985. The documents that the added respondent sought in this case, pertain to the petitioner Co-operative Society and are minutes of the meetings held by the petitioner society in the year 1985. Prima facie, it would appear that such information related to the writ petitioner and it is an entirely different matter as to whether the other limb of Section 11(1) of the Right to Information Act -that of the petitioner having treated the minutes as confidential was required to be considered. In view of the order that is proposed to be passed on this petition, no final view need be expressed here on such aspect of the matter. (7) The second ground put forth by the writ petitioner is again of some merit. When a regular judicial officer is in seisin of a matter or has made a direction in relation to a document or material and it is pursuant to such direction that the document or material is kept in the custody of a person, it is expected of any Public Information Officer or the hierarchy recognised by the Right to Information Act, to request the judicial authority to release the information. Propriety demands that the Public Information Officer or the first or second appellate authorities do not issue a direction which would amount to the judicial officer, in his judicial capacity, being subservient to the orders of any officer or authority exercising powers under the Right to Information Act. (8) The additional point that has been urged by the writ petitioner is devoid of any merit. The fact that there is a Section 134 in the West Bengal Co-operative Societies Act that bars the jurisdiction of Civil Courts or there is a non-obstante clause in Section 143 of the State Co-operative Societies Act would not have any bearing or impact on the provisions of Section 18(3) of the Right to Information Act. One need not look beyond the overriding effect of Section 22 of the Right to Information Act in such context. (9) For the reasons above, the order dated November 11, 2008 passed by the State Information Commissioner is set aside and the matter is remanded to such Commissioner. One need not look beyond the overriding effect of Section 22 of the Right to Information Act in such context. (9) For the reasons above, the order dated November 11, 2008 passed by the State Information Commissioner is set aside and the matter is remanded to such Commissioner. It will be open to the Commissioner to take the same view upon assessing the matter in the light of the observations above and upon considering whether it would be necessary to hear the writ petitioner before making the order. In the event the Commissioner is of the view that the same order may be made, whether or not the writ petitioner is heard, the Commissioner should make a request to the judicial officer under whose orders the Registrar of Co-operative Societies holds the trunk for the sake of propriety. (10) Since the order of December 12, 2008 passed by the Registrar of Co-operative Societies is based on the order of November 11, 2008 passed by the State Information Commissioner, such order of the Registrar of Co-operative Societies stands set aside. (11) It is made clear that the merits of the appeal before the State Information Commissioner, that now stands revived upon this order of remand, have not been gone into and all matters may be decided by the State Information Commissioner afresh. However, the reason put forth by the Public Information Officer and the first appellate authority in refusing the information merely on the ground that the document is more than 20 years old is no ground for refusal of information under the Right to Information Act. (12) W.P. 483 (W) of 2009 is disposed of as above without any order as to costs. (13) The State Information Commissioner should make it convenient to dispose of the matter on remand within a period of four weeks from the date of communication of an authenticated copy of this order. (14) Urgent certified photostat copy of this order be given to the parties upon compliance with all requisite formalities. Order accordingly.