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2014 DIGILAW 528 (JK)

Rajeev Gupta v. J&K State Information Commission

2014-12-30

JANAK RAJ KOTWAL

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JUDGMENT : Janak Raj Kotwal, J. 1. Heard learned counsel for the parties. 2. Legislature of the State of Jammu and Kashmir has enacted the Jammu and Kashmir Right to Information Act, 2009 (hereinafter the Act) with the object of setting out the regime of Right to Information to the people of the State to secure access to information under the control of public authorities. Section 24 of the Act delegates power to the State Government to make rules for carrying out the provisions of the Act in general and regarding some matters in particular. In exercise of its delegated power under section 24 of the Act, the State Government initially framed rules called the Jammu and Kashmir Right to Information Rules, 2009. These Rules, however, were repealed and the State Government came out with the Jammu and Kashmir Right to Information Rules, 2010 (for short the Rules of 2010). The Rules of 2010 have also been repealed and the State Government has now framed the Jammu and Kashmir Right to Information Rules, 2012 (for short the Rules of 2012), which came into force with effect from 30.08.2012. Rule 13 of the Rules of 2012 repeals the Rules of 2010. Rule 13 reads: "13. Repeal and saving.-(1) The Jammu and Kashmir Right to Information Rules, 2010 are hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken or any order made or any direction issued thereunder before such repeal shall be deemed to have been done, taken, made or issued, as the case may be, under the corresponding provisions of these rules." 3. Section 17 of the Act inter alia empowers the State Information Commission constituted under the Act to impose penalty on a Public Information Officer (PIO) designated under the Act for delay in providing information under the Act to an information seeker. Sub Rules (4) and (5) of the Rule 36 of the Rules of 2010 empowered the State Information Commission to review an order passed by it imposing penalty on a PIO. Sub Rules (4) and (5) read: "(4) Notwithstanding anything contained in this rule, the affected Public Information Officer may file a review before the Commission for revision/waiver of the penalty on the basis of facts that could not be brought to the notice of the Commission at the time of hearing of the appeal. Sub Rules (4) and (5) read: "(4) Notwithstanding anything contained in this rule, the affected Public Information Officer may file a review before the Commission for revision/waiver of the penalty on the basis of facts that could not be brought to the notice of the Commission at the time of hearing of the appeal. (5) If the Commission, following a review of the penalty order, cancels the order and directs restoration/refund of the penalty amount which might have been deducted from the salary of the officer or the pension of a pensioner, the controller of accounts or any such other officers of the public authority shall restore/refund the deducted amount to the credit of the officer or the pensioner, as the case may be." 4. No provision similar to Rule 36 of the Rules of 2010 has been provided in the Rules of 2012. To say precisely, power of review available to the State Information Commission under Rules (4) and (5) of the Rules of 2010 ceases to exist with effect from 30.08.2012 with the repeal of the said Rules by Rule 13 of the Rules of 2012 and so does the right to seek the review. 5. The petitioner at the relevant time was posted as the Executive Engineer, PHE (Mech.) Procurement, Division, Jammu and had been designated as PIO under the Act. On a complaint filed by an information seeker, namely, Dineshwar Singh Jamwal, the State Information Commission, herein respondent, vide its order dated 30.07.2012 imposed penalty of Rs. 25,000/ on the petitioner and by the same order granted him liberty to file a review application for review of the order under Sub Rule (4) of Rule 36 of the Rules of 2010. The petitioner filed the review application on 28.08.2012. As the review application was not decided, the petitioner filed this writ petition seeking mandamus directing respondent to dispose of his review application. In its reply to the writ petition, the respondent has taken the stand that it lacks jurisdiction to decide the review application due to coming into force the Rules of 2012 and repeal of the Rules of 2010 with effect from 30.08.2012. 6. In its reply to the writ petition, the respondent has taken the stand that it lacks jurisdiction to decide the review application due to coming into force the Rules of 2012 and repeal of the Rules of 2010 with effect from 30.08.2012. 6. In the above backdrop, question raised for consideration in this writ petition is, whether the State Information Commission has the jurisdiction to decide a review application filed under Rule (4) of the Rules of 2010 prior to the date of repeal of these Rules by the Rules of 2012? 7. Mr. Vilakshana Singh, learned counsel for the petitioner, submitted that the right to seek review of the order imposing penalty on him is substantive right of the petitioner, which was in existence at the time of filing of the application for review on 28.08.2012 and is not defeated by repeal of the Rules of 2010. In support of his argument, he relied upon Santosh Kumar v RTA and others : AIR 1985 Rajasthan 130. Per contra, Mr. S.K. Anand, learned counsel for the respondent, submitted that power to review its own order is not an inherent power of a court or a forum, it is a power conferred by law and must exist when it is to be exercised. In support, Mr. Anand relied upon Patel Narshi Thakershi v Pradyumansinghji Arjunsinghji : 1971(3) SCC 844 . 8. Well settled it is that neither the right to seek review nor the power to review exists unless conferred by law. No court, tribunal, or a quasi judicial body has the inherent power to review its own decision/order. Such a power must be conferred by any law either specifically or by necessary implication (Ref. : AIR 1970 SC 1273 and : 1971 (3) SCC 844 supra). However, review of a decision/order inheres right of a party to seek review, besides inhering the power to review. To seek review of a decision/order essentially is a substantive right of a person against whom order has been passed and such right once accrued is not defeated by repeal of the provision conferring such right. Sub Rule (4) of Rule 36 of the Rules of 2010 on it plain reading would show that it conferred right of review on an aggrieved person more than it conferred power to review its order on the Information Commission. Sub Rule (4) of Rule 36 of the Rules of 2010 on it plain reading would show that it conferred right of review on an aggrieved person more than it conferred power to review its order on the Information Commission. The right of seeking review, having accrued to the petitioner and the petitioner having availed this right earlier than the repeal of the provision, in my considered view, is not defeated by the repeal. Respondent therefore, still has the power to decide and dispose of the review application filed by the petitioner prior to repeal of the Rules of 2010. In taking this view, I am supported by the view taken by the High Court of Rajasthan in Santosh Kumar (supra) and I quote the relevant from the said judgment as under: "35. ..., from the authorities, the principle of interpretation that can be deduced is that the vested rights or substantive rights cannot be taken away by repeal of an enactment or provision or by an amendment of a provision unless such rights are taken away by some express provision or by necessary implication. As regards, the right of appeal, it is well settled that it is a vested right and such a right arises to a party, when the lis commences. The case may be true of right of review as in connection with a right of review as well, it has been laid down that a right to have review of a decision stands on the same footing and in connection with another remedy by way of reference, it can be said that a right to have a reference is also a vested or substantive right, but the same cannot be true in case of a remedy, by way of revision. ..." 9. The authority, Patel Narshi Thakershi's case, relied upon by Mr. Anand, learned counsel for respondent, does not support the stand of the respondent because it does not deal with a situation arising from repeal of a provision allowing review of an order. It rather states and reiterates that power to review is not an inherent power and must be conferred by law. 10. Viewed thus, this writ petition has merit and is granted. By issue of writ of mandamus respondent is directed to decide and dispose of the review application filed by the petitioner. 11. Disposed of.