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Himachal Pradesh High Court · body

2017 DIGILAW 807 (HP)

Hari Ram Dhiman v. State of Himachal Pradesh

2017-07-18

AJAY MOHAN GOEL, SANJAY KAROL

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JUDGMENT : Sanjay Karol, J. Petitioner makes out a grievance that action of the authorities in insisting for payment of postal charges for furnishing information, under the provisions of the Right to Information Act, 2005 (hereinafter referred to as the Act), is ultra vires, unconstitutional and illegal. 2. The Act came to be enacted with the solitary object of setting up a practical regime of right to information so that citizens could secure access to information, which was under the control of public authorities, so that transparency and accountability in the working of every public authority could be promoted. The constitution of a Central Information Commission and State information Commissions and for matters connected therewith or incidental thereto was provided for. 3. India is a Democratic Republic. Object of the Act postulates that a democracy requires an informed citizenry and transparency of information, which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed. The Act harmonizes the conflicting interests. Optimum use of physical resources and preservation of confidentiality of sensitive information being one of them. 4. It is with this backdrop, the Act came to be notified on 21.6.2005. 5. Now under the Act, every public authority is under an obligation to maintain all of its records duly catalogued and indexed in a manner and the form which facilitates the right to information under the Act and ensures that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated. 6. Section 6 enables a person to obtain information under the Act. Such request made, by virtue of Section 7, is required to be processed and information furnished, in accordance with law, upon payment of fee, so prescribed under the Act. 7. Sub-section (3) of Section 7 of the Act stipulates payment of additional fee by the applicant. 8. Sections 27 & 28 of the Act empower the appropriate Government and competent authority to frame Rules, more specifically that of payment of fee, payable for seeking information under the Act. 9. Noticeably, the Central Government notified Rules, known as Right to Information Rules, 2012. 8. Sections 27 & 28 of the Act empower the appropriate Government and competent authority to frame Rules, more specifically that of payment of fee, payable for seeking information under the Act. 9. Noticeably, the Central Government notified Rules, known as Right to Information Rules, 2012. Clause (g) of Rule 4 prescribes that fee for providing information under sub-sections (1) and (5) of Section 7 of the Act shall be charged at the rate “so much of postal charge involved in supply of information that exceeds fifty rupees”. Thus, if the postal charges are less than Rs.50/-, no fee is payable. 10. However, in exercise of its Rule making power (sub-section (1) of Section 27 of the Act), the State of Himachal Pradesh, being the appropriate Government, has also framed Rules, known as Himachal Pradesh Right to Information Rule, 2006 (hereinafter referred to as State Government Rules). 11. For the purpose of adjudication of the present lis, relevant Rules are reproduced as under: “3. Application for seeking information:- (1) Any person seeking information under the Act shall make an application in Form ‘A’ to the Public Information Officer/Assistant Public Information Officer accompanied by fee prescribed in rule 5 and the Public Information Officer/Assistant Public Information Officer shall duly acknowledge the receipt thereof and shall enter the particulars in Part I of the Application Register maintained for the purpose in Appendix I. (2) Except in the case of an applicant who is determined by the State Government as being below poverty line, the application shall be accepted only if it is accompanied by a challan in support of payment of the requisite application fees as specified in rule 5. A separate application shall be made in respect of each subject and in respect of each year to which the information relates. (3) When the information sought for is ready and requires payment of additional fee, if any, the Public Information Officer/Assistant Public Information Officer shall communicate to the applicant the fact in Form ‘B’ specifying the additional fee to be paid, on his address given in the application. The particulars of information being supplied shall be entered in Part II of the Application Register. (4) When the information is ready the Public Information Officer/Assistant Public Information Officer will inform the applicant in Form ‘C’. The particulars of information being supplied shall be entered in Part II of the Application Register. (4) When the information is ready the Public Information Officer/Assistant Public Information Officer will inform the applicant in Form ‘C’. (5) Any information supplied under sub rule (4) shall be in the language available in the office record.” “5. Charging of fee:- (1) Except in the case of persons who are below poverty line as determined by the State Government, the Public Information Officer/Assistant Public Information Officer shall charge the fee for supply of information at the following rates, namely:- Description of Information Price/Fees in Rupees 1 Fee alongwith application. Rs.10 per application. 2 Where the information is available in the form of a priced publication. On printed price. 3 For other than priced publication. Rs.10 per page of A-4 size or smaller and actual cost subject to minimum of Rs.20 per page in case of larger size. 4 Where information is available in electronic form and is to be supplied in electronics form e.g. Floppy, CD etc. Rupees 50 per floppy and Rs.100 per CD 5 Fee for inspection of Record/document Rs.10 per 15 minutes or fraction thereof. (2) Every page of information to be supplied shall be duly authenticated giving the name of the Applicant (including below poverty line status if that is the case), and shall bear the dated signatures and seal of the concerned Public Information Officer/Assistant Public Information Officer supplying the information. (3) Fees/Charges shall be deposited in a Government Treasury under the head of account “0070 - OAS, 60 - OS, 800 - OR, 11 - Receipt head under Right to Information Act, 2005”. Accruals into this head of account may be placed in a separate fund by way of grant-inaid for furthering the purposes of the Act, including purchase of equipment and consumables, providing training to staff etc.” 12. Petitioner wants the Court to hold that since no fee towards postal charges is specifically prescribed in Rule-5 and since the Rules framed by the Central Government also do not require payment of postal charges, in excess of Rs.50/-, the authority should not insist on payment of postal charges, be it more or less than Rs.50/-. Emphasis is laid on the fact that fee can be charged only and only if there is a charging section. 13. Emphasis is laid on the fact that fee can be charged only and only if there is a charging section. 13. Firstly, what needs to be ascertained is as to whether there is any conflict between the Rules framed by the Central Government and the State Government. Legislative competence to frame Rules is there. Rules so framed by the Central Government pertain to and are operative only to the legislative extent and the authority to which the Central Government exercises its power. It definitely does not exercise its power under the Act, insofar as the State Government is concerned. The State Government has not adopted the Rules so framed by the Central Government. To the contrary, the State has framed its own Rules. There is no conflict between the ambit, scope and applicability, insofar as the two Rules are concerned. In any event, there is no challenge to the Rules. 14. This takes us to the next issue, as to whether the State/authorities are well within their right to charge fee towards postal charges. 15. Bare reading of Rule-5 of State Government Rules reveals that no fee is prescribed for postal charges, but then this Rule pertains only to preparation of record and not supply thereof, through postal services. This Rule itself provides for payment of additional fee. 16. Sub-rule (3) of Rule 3 of the State Government Rules specifically provides for payment of additional fee. 17. Thus, in our considered view, the authorities are well within their right to ask for postal charges, as additional fee, under the State Government Rules. After all, the information sought is to be communicated, in writing and not by electronic mode but through postal services. If an applicant is seeking information he must pay for it. The Act does not prohibit charging of fee or prescribe furnishing of information free of charge. After all, the State also has limited fiscal resources. It can be said that after all, the mighty State can afford payment of postal charges, which are meager in amount, but then issue is not restricted to a single person. Several applications, not in thousands but in lakhs, are being filed and the State cannot be allowed to bear the burden of postal charges. Hence, for all the aforesaid reasons, present petition is dismissed. Pending applications, if any, also stand disposed of.