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Gujarat High Court · body

2014 DIGILAW 657 (GUJ)

THAKOR SARDARJI BHAGVANJI v. STATE OF GUJARAT

2014-06-17

K.M.THAKER

body2014
JUDGMENT : 1. Heard Mr.Nagesh, learned advocate for the petitioner. 2. In present petition, the petitioner has prayed, inter alia, that:- “9(B) Your Lordship may be pleased to quash and set aside order passed by Respondent No.4 in Appeal No.-A-0214-2012 on 01.02.2014 and order passed by Appellate Authority Respondent No.3 Dated 03.01.2012 and letter dated 25.10.2011 by public information officer and sub-Registrar (Respondent No.2) and also be pleased to direct to supply information as per Section 7(5) of the Right to Information Act,2005 in the interest of justice." 3. The petitioner is aggrieved by order dated 01.02.2014 passed by the Chief Information Officer i.e. respondent no.4 in appeal filed by present petitioner against the order dated 03.01.2012 passed by the appellate authority. 4. From the details mentioned in the petition and the submissions made by learned advocate for the petitioners, it has emerged that:- 4.1 Somewhere in October-2011, the petitioner herein made an application under the provisions of Right to Information Act,2005 (herein after referred to as "Act"). The said application was submitted before Information Officer and Sub Registrar, Siddhapur. 4.2 By virtue of the said application, the petitioner demanded certified copies of all documents (with their annexures), which were presented and registered in the office of Sub-Registrar in the span of seven years i.e. from 2005 to 2011. 4.3 By the same application, the petitioner also prayed for certified copies of the index (wherein entry of registered documents are made) in respect of all documents, which came to be registered in the office of Sub Registrar, Siddhapur during aforesaid span of about seven years i.e. from 2005 to 2011. 4.4 It appears that upon examining the request and on further process, the Information Officer in the office of the Sub-Registrar found that during the period in question i.e. from 2005 to 24.10.2011 about 11780 documents were registered. 4.5 Having regard to the fact that the petitioner demanded certified copies of about 11780 documents and certified copies for equal member (i.e. 11780) of index, the respondent authority calculated the fees, which would be payable by the applicant if he wanted to have copies of the said documents. 4.6 According to the calculation made by the authority the amount payable was to the tune of Rs.38,87,400. 4.6 According to the calculation made by the authority the amount payable was to the tune of Rs.38,87,400. 4.7 In that view of the matter, the concerned authority i.e. respondent no.2, vide his letter dated 25.10.2011, informed the petitioner that if he wants to have the copies of the documents mentioned in his application, then he shall have to pay Rs.38,87,400/-. 4.8 However, the petitioner demanded the said documents free of any cost/fees. 4.9 So as to justify his demand that certified copies of the said documents should be provided to him free and without charging any fees, the applicant-petitioner submitted copy of BPL Card and relied on a Government Resolution/Circular and claimed that the authority cannot demand any fees from him. 4.10 On such claim and premise, the petitioner did not pay the fees. 4.11 After the said reply-response from the petitioner, the respondent did not taken any action consequently, he did not receive the documents. 4.12 Aggrieved by the in action, the petitioner preferred an appeal before the respondent no.3. The said appeal (which was filed on or about 16.12.2011) was registered as Appeal No.42/11. 4.13 The appellate authority i.e. the respondent no.3, vide his order dated 03.01.2012 held that the decision of the respondent no.2 is not erroneous and does not warrant interference while dismissing the appeal, the respondent no.3 held and clarified that the documents/information can be supplied on payment of the fees at prescribed rate. 4.14 Aggrieved by the said order, the petitioner filed appeal before the respondent no.4 i.e. Chief Information Officer. The said appeal came to be registered as Appeal No.A-0214-2012. 4.15 After considering the appeal and the said two orders by the subordinate authorities, the respondent no.4 -Chief Information Officer passed order dated 01.02.2014 and rejected the appeal on the grounds mentioned in the order. The said appeal came to be registered as Appeal No.A-0214-2012. 4.15 After considering the appeal and the said two orders by the subordinate authorities, the respondent no.4 -Chief Information Officer passed order dated 01.02.2014 and rejected the appeal on the grounds mentioned in the order. 4.16 The respondent no.4, in the impugned order, referred to and relied upon previous order dated 07.05.2009 passed in Appeal No.1934 of 2007-2008 and observed that the information/documents related to personal information of third party can be made available only if larger public interest warrants the disclosure and since the petitioner has not mentioned, in the application, any details reflecting that the documents/information related to third party is demanded for public interest and before him also the petitioner has not made out any case that he wants the documents/information in public interest, the request by the petitioner does not deserve to be accepted in light of the provision under Section 8 and Section 11 of the Act. 5. Aggrieved by the said order, the petitioner has preferred present petition. 6. I have heard learned Counsel for the petitioner and I have considered the orders and other material on record. 7. The learned Counsel for the petitioner assailed the order by the Respondent No.4 Commissioner and also the other two orders and submitted that the orders are bad in law and arbitrary and against the provisions of the Act. Learned Counsel for the petitioner submitted that the respondent no.4 erred in rejecting the appeal. He also submitted that in view of State Government’ s policy, the petitioner is not obliged to pay any fees and that therefore, documents ought to have been supplied without charging any fees. 8. On perusal of the application, it becomes clear that the petitioner demanded information i.e. the documents related to personal/individual transactions entered into by several persons in respect of the properties situate within territorial limits of authority of respondent no.2, -meaning thereby the information/documents demanded by the petitioner are, in light of the provision under the Act, more particularly, Section 2(n) read with Section 2(f), related to third party (herein after referred as "third party information") and are in the category of “personal information of third party”. The said section 2(n) and 2(f) reads thus:- 2(n) “third party” means a person other than the citizen making a request for information and includes a public authority." 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;" 8.1. In view of the nature of the application made by the petitioner and in light of the petitioner’s objection against the decision of respondent no.2 (which was conveyed to the petitioner vide communication dated 25.10.2011) asking the petitioner to pay the fees, it is appropriate to take into account relevant part of the provision under sub-section (1) of Section 6 as well as sub-section (5) and sub-section (6) of Section 7 of the Act. Sub-section (3) of section 7 also makes provision with regard to fees. The provision under sub-section (1) of Section 6:- 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— " (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. 7. Disposal of request.— (1).... (2).... (3).... (3).... (4).... (5) Where access to information is to be provided in the printed or in any electronic format, the applicant shall, subject to the provisions of sub-section (6), pay such fee as may be prescribed. “Provided that the fee prescribed under sub -section (1) of section 6 and sub-sections (1) and (5) of section 7 shall be reasonable and no such fee shall be charged from the persons who are of below poverty line as may be determined by the appropriate Government. “Provided that the fee prescribed under sub -section (1) of section 6 and sub-sections (1) and (5) of section 7 shall be reasonable and no such fee shall be charged from the persons who are of below poverty line as may be determined by the appropriate Government. (6)Notwithstanding anything contained in sub-section (5), the person making request for the information shall be provided the information free of charge where a public authority fails to comply with the time limits specified in sub-section (1)” 8.2 Thus, the provision under which a citizen can submit application seeking information/documents under the Act i.e. Section 6(1) provides that such application should be submitted along with prescribed fees. Similarly sub- section (3) of Section 7 and Subsection (5) of Section 7 also speak about payment of fess. 8.3 However, proviso of sub-section (5) of Section 7 provides, inter alia, that fess should not be charged from person below poverty line” the applicant, who is a “ . The petitioner claims that he comes within the purview of said expression i.e. a person below poverty line” in sub- section (5) of Section 7, and that therefore, he cannot be asked to pay Rs.38,87,400/-towards fees, feeling aggrieved by the decision, the petitioner carried the matter before respondent no.4. 9. Now, when the impugned order by respondent no.4 is taken into account, it emerges that the respondent no.4 has followed previous decision dated 07.05.2009 in Appeal/Compalint No.1934 of 2007-08. 9.1 The respondent no.4 rejected petitioner’s appeal on the ground that the petitioner failed to justify his request by establishing “public interest as the justification” for the request. The respondent no.4 did not find anything in the application making out a case for “. information on ground of public interest” 10. In view of the said order, question arises whether the respondent no.4 could have denied the petitioner’s appeal on the ground that third party information can be provided in public interest or may be denied if any case that information related to third party is demanded in public interest is not made out. The said decision of the respondent no.4 means that the applicant can be asked to explain the purpose for demanding related to third party. The said decision of the respondent no.4 means that the applicant can be asked to explain the purpose for demanding related to third party. 10.1 So as to examine this aspect, it is necessary to take into account the provision under Sub-section (2) of Section 6, which reads thus:- “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." 10.2 It is true that the said provision provides that the applicant cannot be asked to mention reason for demanding information and thereby the said section provides safeguard for the applicant and insulates him from being compelled to disclose the object behind the demand for information and/or from disclosing personal information. 10.3 However, so as to appreciate the order by respondent no.4 and the petitioner’s contention, it is necessary to also take into account Section 8 and Section 11 of the Act, which reads thus:- 8. Exemption from disclosure of information.— (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,—" (a) ........... (b) ........... (c) ........... (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) ........ (g) ........ (h) ........ (i) ........ (j) information which relates to personal information the disclosure of which has not 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. (2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests." (3) Subject to the provisions of clauses (a), (c) and (i) of subsection (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made under section 6 shall be provided to any person making a request under that section: Provided that where any question arises as to the date from which the said period of twenty years has to be computed, the decision of the Central Government shall be final, subject to the usual appeals provided for in this Act. 11. Third party information.— (1) Where a Central Public Information Officer or the State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information: Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party. (2) Where a notice is served by the Central Public Information Officer or State Public Information Officer, as the case may be, under subsection (1) to a third party in respect of any information or record or part thereof, the third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure. tc "(2) Where a notice is served by the Central Public Information Officer or State Public Information Officer, as the case may be, under subsection (1) to a third party in respect of any information or record or part thereof, the third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure. (3) Notwithstanding anything contained in section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under section 6, if the third party has been given an opportunity to make representation under subsection (2), make a decision as to whether or not to disclose the information or record or part thereof and give in writing the notice of his decision to the third party. (4) A notice given under subsection (3) shall include a statement that the third party to whom the notice is given is entitled to prefer an appeal under section 19 against the decision.” 11. On reading of Section 2(n) and 2(f) and the petitioner’s application, it becomes clear that: (a) The information/documents demanded by the petitioner (b) The documents asked for by the petitioner has no “ relation to any public activity” or public interest. (c) The said documents and the information therein has nothing to do with and they are not related to functioning of public authority and/or discharge of duties of any public authority. (d) Actually, the documents/information demanded by the petitioner are related to private and personal transaction and interest of several individuals is related to personal information of third party. 11.1 It is also true that by virtue of subsection 2 of Section 6, it is provided that a person, who requests for any information is not required to give any reason to support and justify the request/application or any other personal details except those that may be necessary for contacting him. 11.1 It is also true that by virtue of subsection 2 of Section 6, it is provided that a person, who requests for any information is not required to give any reason to support and justify the request/application or any other personal details except those that may be necessary for contacting him. 11.2 However, another question which arises in light of said provision and in view of the facts of present case is whether the said subsection 2 of Section 6 stands divorced from other provision and whether it operates in isolation and whether the scheme of the Act contemplates that the said section shall operate on its own and divorced from other provisions of the Act. 12. On examining the scheme of the Act, it emerges that, actually, the said section is related to and has to be read along with and is required to be construed in light of Section 8 and Section 11 of the Act. 12.1 Section 11 of the Act is sister clause of Section 8 and compliments the provision under Section 8 of the Act. Section 11 of the Act confers right of notice and hearing to third party and provides, inter alia, opportunity to “third party”, if the authority intends to provide“ information related to the concerned third party” to raise objection and opportunity of being heard by the competent authority. 12.2 The concerned third party can avail the opportunity available under and by virtue of section 11, and can effectively exercise his right and can properly raise all available defence/objection if the concerned party is aware about the demand and reason for which such information (information related to his personal interest is demanded). For this purpose also the clarification and disclosure of the purpose for which such information i.e. third party related information, is necessary and is contemplated also. 12.3 The said section 8 of the Act prescribes, inter alia, certain exemptions from the obligation of providing information requested for under Section 6(1) of the Act. For this purpose also the clarification and disclosure of the purpose for which such information i.e. third party related information, is necessary and is contemplated also. 12.3 The said section 8 of the Act prescribes, inter alia, certain exemptions from the obligation of providing information requested for under Section 6(1) of the Act. 12.4 By virtue of section 8, the legislature has identified, described and enumerated certain instances or type of information, in which case, the information officer / competent authority, unless and until he is satisfied that the information demanded by the applicant is demanded in, or for, public interest, is not obliged to and he may decline to part with and provide the information covered under Section 8 of the Act. 12.5 Thus, section 8 implies that if and when information in relation to clause (d), (c) & (j) of Section 8 of the Act is demanded, then the I.O. may, before parting with or providing information, pause and pose a question whether the information is demanded in pubic interest. 12.6 The concerned authority may inquire about and look into the reason for demanding such information which comes within the purview of section 8(1)(a) to (j). 12.6 The concerned authority may inquire about and look into the reason for demanding such information which comes within the purview of section 8(1)(a) to (j). 12.7 When the said provision prescribes that:- (a) if the information demanded is related to third party; and (b) if it is related to personal interest of third party (c) and if it has no relationship to any public activity or interest; and (d) if it has nothing to do with functioning of public authority and/or discharge of duties of any public authority: and (e) if it amounts to or may result into invasion of privacy of individual/s the aspect or concept of public interest is one of the criteria to be taken into account by the authority before providing the information in respect of matters covered under Section 8(1)(a) to (j), then it would also mean that, if necessary details or explanation, clarification do not flow and come out from the application and do not establish that the third party related inforamtion, which is demanded by the application is demanded in/for public interest, then the concerned Officer may ask the applicant to clarify the purpose for which the information is demanded and satisfy him (i.e. the concerned officer) that the information is demanded in public interest and larger public interest justifies disclosure of that information or that larger public interest outweighs the harm to the protected interest. 12.8 This would also mean that Section 8 of the Act, to this limited extent, carves out exception to the Rule embodied in 6(2). 13. The provision under Clause (d) (e) and (j) of sub- section 1 of the Section 8 illustrates such situation or eventualities and Section 11 of the Act, which provides, inter alia, for notice to, and opportunity of hearing to the third party, if the concerned officer intends to disclose third party information, compliments the provision under Section 8 of the Act and the object of said section 8 of the Act. 14. The said section 8 of the Act also clarifies that according to the scheme of the Act sub-section (2) of Section 6 does not operate in isolation and is required to be read and construed in light of Section 8 and Section 11 of the Act. 15. 14. The said section 8 of the Act also clarifies that according to the scheme of the Act sub-section (2) of Section 6 does not operate in isolation and is required to be read and construed in light of Section 8 and Section 11 of the Act. 15. When the provision under Section 8 of the Act and sub-section (2) of Section 6 are read conjointly then it brings out the situation that though the applicant is, ordinarily, not supposed to, mention or explain or disclose reason for demanding any information, however, if such information is “third party information” (i.e. information related to and concerning “third party”) and if it falls within the purview of sub-section (1) of section 8 then in that event before parting with the information, the information officer and competent authority can ask, and he would be justified in asking, the petitioner to establish public interest as the reason or ground for demanding such information and to satisfy him that the said information is demanded in public interest. 15.1 When Section 8(1)(d) (e) and (j) and Section 11 of the Act are read conjointly, then it emerges that in the cases which fall within purview of Section 8 of the act, the authority would be justified if he asks explanation from the applicant and asks the applicant to make out a case that the information is demanded for public interest – and the purpose for which the information is demanded (i.e. public interest) is such which outweighs the objections or protected interest of third party. 16. In present case, the petitioner demanded documents related to information of personal/individual transactions. 16.1 The canvas and the range of the information documents demanded by the petitioner is very wide and the information demanded by the petitioner is not restricted to any particular person and/or particular area, locality and/or particular village/town (but for whole taluka or district) and/or functioning of public authority or discharge of duties of particular public authority, but he demanded copies of all documents registered during the period between 2005-11. 16.2. The documents / information demanded by the petitioner, as rightly held by respondent no.4, fall within purview of Section 8(1)(j) of the Act. 16.2. The documents / information demanded by the petitioner, as rightly held by respondent no.4, fall within purview of Section 8(1)(j) of the Act. 16.3 According to Section 8(1)(j), the information officer / competent authority is not obliged to give the information covered within the purview of Section 8(1)(j) until and unless the authority is satisfied that the applicant demands it in/for public interest and it would not cause unwarranted invasion of privacy of individual and that larger public interest justifies disclosure on said information. 16.4 Thus, in view of the provision under Section 8(1)(j), the applicant is obliged to at least satisfy the authority as to the justification for such demand and that disclosure of such information (i.e. the copies of the “ documents asked for by the petitioner) is in public interest”. 16.5 This would require the applicant to either make out a case in the application itself or to make out a case during the hearing before the competent authority and satisfy the authority. 17. On reading of the application, it emerges that there is nothing in the application which would make out a case that the applicant demanded the information in or for public interest and he did not make out any case even during hearing before the authorities. 17.1. Even in the memo of this petition and/or at the time of hearing of the petition also the petitioner has failed to make out such a case and has failed to demonstrate any justification for demanding third party information. 17.2 Not only this but, actually, the petitioner did not even plead and did not claim at any time, even during hearing of this petition that he needs and he demanded the information (i.e about 11,780 documents and as many index) in, or for, public interest. 17.3. Besides this, on examination of the application, it cannot be said that the information sought for by the petitioner is for public purpose and in public interest. Moreover, he also did not explain or disclose why he required third party information and that too for such a long span i.e. for about seven years. 18. In this background, it is not possible to hold that the impugned order is arbitrary or unjust or without jurisdiction or contrary to provisions under the Act. 19. Moreover, he also did not explain or disclose why he required third party information and that too for such a long span i.e. for about seven years. 18. In this background, it is not possible to hold that the impugned order is arbitrary or unjust or without jurisdiction or contrary to provisions under the Act. 19. The above mentioned aspects and details lead the Court to believe that the application by the petitioner- applicant and his demand for certified copies of about 11780 documents and index, amounts to misuse or abuse of the right conferred under the provision of the Act. 20. Learned advocate for the petitioner submitted that before rejecting the appeal, the respondent Commissioner did not follow the procedure of issuing notice to the third party. 20.1 In advancing such contention, the petitioner overlooks the fact that:- (a) the said requirement is for the protection and benefit of “third party” and (b) the applicant (i.e. the petitioner in present case) cannot invoke the said provision for his benefit / to assail the order declining to grant the request, and“ (c) in present case, third party” is not one or two individuals, but as many as few thousand persons which would mean that the authority will have to issue notice to few thousands persons and invite them, hear them and consider their objections; and (d) according to the provision under Section 11 of the Act, the authority would issue notice to third party, if the authority intends to provide information related to third party. 20.2 Notice to third party will be required, if the authority is prima-facie satisfied and finds any justification, bonafides and purpose in the application / demand and he contemplates to/proposes to part with and provided third party information and the objections by third party – under Section 11 of the Act are required to be heard and considered. 20.3 When the request for third party information is made and the applicant fails to satisfy the authority, even prima-facie that the information demanded by him is demanded in public interest and the authority, and the authority is not convinced to and does not intend to part with and to provide the information, then he is not obliged to issue notice to third party. 20.4 Even otherwise merely because the application is rejected without issuing notice to third party, it does not vitiate the order. 21. 20.4 Even otherwise merely because the application is rejected without issuing notice to third party, it does not vitiate the order. 21. Therefore, when the Commissioner himself, in the first place and prima-facie, finds that the applicant has failed to establish that the information sought for is for public purpose then the respondent Commissioner may pass appropriate order and decline to pass directions providing third party information until the applicant satisfies him. In such case, notice to third party would not be required. 22. In this view of the matter, the applicant cannot assail the order on the ground that notice to third party was not issued. 23. The Act does not contemplate that the authority should, without application of mind or without taking into account the justification for and purpose of the request etc. act mechanically and allow the request. The appellate authority is not supposed to act like a vending machine. 24. The learned counsel for the petitioner, as a last effort, claimed that respondent no.4 should have decided the issue raised by the petitioner against orders by respondent no.2 and respondent no.3 viz. that the petitioner should pay fee for the copies of the documents asked for by him. The said aspect is considered in this order. It is true that if the applicant is a person below “ poverty line” , then authority is obliged to supply the information free of cost. However, when the respondent no.4 found that the information asked for falls within the purview of section 8(1)(j) and in absence of satisfactory explanation the request deserves to be declined, then the said issue pales into insignificance and in the facts of the case, it should not detain the Court and on that ground, the order by respondent no.4 does not warrant inference by this Court. In the facts of the case, the said issue and /or absence of any decision by the respondent no.4 does not vitiate the order since the petitioner’s application is found to be unsustainable on the first/main point. It is clarified that in v of the facts of preset case and since the petition also fails on the main/fundamental issue, the Court has not examined the issue viz. When an application demands information in form of documents in such bulk quantity, then what course of action is available to the authority. 25. It is clarified that in v of the facts of preset case and since the petition also fails on the main/fundamental issue, the Court has not examined the issue viz. When an application demands information in form of documents in such bulk quantity, then what course of action is available to the authority. 25. Having regard to the foregoing discussions and above mentioned facts and (a) when undisputedly the nature of the information/documents demanded by the applicant is covered within the purview of the Section 8(1)(j) of the Act and has also failed to make out he demanded the documents for public purpose and/or in public interest; and (b) when any reason or justification for seeking so many documents, covering such long span is not made out, and when the authority's order is not unjust or arbitrary, there is no reason or justification to interfere with the impugned order. 26. The petitioner has failed to make out any ground to interfere with the impugned order. 27. The petition, therefore, fails and deserves to be rejected. Accordingly, rejected.