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2018 DIGILAW 484 (CHH)

Sharad Dewangan, S/o Late Shri Sundar Lal Dewangan v. State of Chhattisgarh, Through the Development Commissioner

2018-08-06

SANJAY K.AGRAWAL

body2018
ORDER : 1. R.V. Raveendran, J, in the matter of Central Board of Secondary Education and another v. Aditya Bandopadhyay and others, (2011) 8 SCC 497 speaking for the Supreme Court pertinently observed qua right to information as under: - “66. The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of the RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under clause (b) of Section 4(1) of the Act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption. ...” 2. Claiming the above-stated right to information, the petitioner made an application under Section 7 of the Right to Information Act, 2005 (for short, 'the RTI Act'), but that was not granted by the Public Information Officer as well as by the first appellate authority leading to filing of application before the second appellate authority / State Information Commission. The State Information Commission in the appeal preferred under Section 19 of the RTI Act directed the Public Information Officer on 18-5-2016 to furnish information to the petitioner which was not furnished leading to filing of complaint under the RTI Act which was ultimately closed with a direction to the Public Information Officer to furnish information within 30 days and also issued notice to the concerned authority as to why penalty under Section 20(1) of the RTI Act be not imposed and as to why disciplinary proceeding be not initiated under Section 20(2) of the RTI Act. The petitioner thereafter complained before this Court in a writ petition filed bearing W.P.(C)No.587/2018 that the order of the State Information Commission is not being complied with by the Public Information Officer. This Court by order dated 26-3-2018 directed the Chief Executive Officer of the Zila Panchayat concerned to look into the petitioner's grievance and to ensure compliance of the order passed by the State Information Commission, but again this batch of writ petitions has been filed claiming non-compliance of the order passed by the State Information Commission by the Public Information Officer. Thus, the executability of the order passed by the State Information Commission in exercise of power conferred under Section 19(3) of the RTI Act is the lis brought before this Court by the petitioner herein in this batch of writ petitions. 3. I have heard the petitioner in person as well as learned counsel for the State Information Commission and learned State counsel. 4. The Freedom of Information Act, 2002 was enacted and thereafter, in order to ensure greater and more effective access to information, the Government resolved that the Freedom of Information Act, 2002 enacted by the Parliament needs to be made more progressive, participatory and meaningful. The Government examined the suggestions made by the National Advisory Council and others and decided to make a number of changes in the law. The important changes proposed to be incorporated, inter alia, include establishment of an appellate machinery with investigating powers to review decisions of the Public Information Officers; penal provisions for failure to provide information as per law; provisions to ensure maximum disclosure and minimum exemptions, consistent with the constitutional provisions, and effective mechanism for access to information and disclosure by authorities, etc., and as such, the Right to Information Act, 2005 was enacted and brought into force with effect from 15th June, 2005. It is an Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. 5. At a focused glance of the provisions contained in the RTI Act, it is quite vivid that each and every Information Commission constituted under the RTI Act is an independent quasi-judicial authority having responsibility and power to get its orders implemented. The Supreme Court in the matter of Namit Sharma v. Union of India, (2013) 1 SCC 745 clearly and unmistakably held that the Information Commissions are quasi-judicial bodies and the functioning of the Commission is quite in line with the functioning of the civil courts and it has even expressly been conferred with the limited powers of the civil court. While considering the nature of function to be performed by the Commission, the Supreme Court held as under: - “72. While considering the nature of function to be performed by the Commission, the Supreme Court held as under: - “72. The Information Commission, as a body, performs functions of wide magnitude, through its members, including adjudicatory, supervisory as well as penal functions. Access to information is a statutory right. This right, as indicated above, is subject to certain constitutional and statutory limitations. The Act of 2005 itself spells out exempted information as well as the areas where the Act would be inoperative. The Central and State Information Commissioners have been vested with the power to decline furnishing of an information under certain circumstances and in the specified situations. For disclosure of information, which involves the question of prejudice to a third party, the authority concerned is required to issue notice to the third party who can make a representation and such representation is to be dealt with in accordance with the provisions of the Act of 2005. This position of law in India is in clear contrast to the law prevailing in some other countries where information involving a third party cannot be disclosed without consent of that party. However, the authority can direct such disclosure, for reasons to be recorded, stating that the public interest outweighs the private interest. Thus, it involves an adjudicatory process where parties are required to be heard, appropriate directions are to be issued, the orders are required to be passed upon due application of mind and for valid reasons. The exercise of powers and passing of the orders by the authorities concerned under the provisions of the Act of 2005 cannot be arbitrary. It has to be in consonance with the principles of natural justice and the procedure evolved by such authority. Natural justice has three indispensable facets i.e. grant of notice, grant of hearing and passing of reasoned orders. It cannot be disputed that the authorities under the Act of 2005 and the tribunals are discharging quasi-judicial functions.” 6. The question is whether the State Information Commission has power and jurisdiction to execute its order? 7. It is the cardinal principle of interpretation that courts or tribunals possess implied and inherent power to execute their own order. 8. It cannot be disputed that the authorities under the Act of 2005 and the tribunals are discharging quasi-judicial functions.” 6. The question is whether the State Information Commission has power and jurisdiction to execute its order? 7. It is the cardinal principle of interpretation that courts or tribunals possess implied and inherent power to execute their own order. 8. At this stage, it would be appropriate to notice the Latin phrase ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest which means where anything is conceded, there is conceded also anything without which the thing itself can not exist. 9. The Supreme Court in the matter of Savitri w/o Govind Singh Rawat v. Govind Singh Rawat, (1985) 4 SCC 337 relying upon the aforesaid maxim held that every court must be deemed to posses by necessary intendment all such powers as are necessary to make its orders effective, and observed as under: - “6. … Every court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim “ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest” (Where anything is conceded, there is conceded also anything without which the thing itself cannot exist). [Vide Earl Jowitt's Dictionary of English Law, 1959 Edn., p. 1797.] Whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done then that something else will be supplied by necessary intendment. Such a construction though it may not always be admissible in the present case however would advance the object of the legislation under consideration. A contrary view is likely to result in grave hardship to the applicant, who may have no means to subsist until the final order is passed. ...” 10. Similarly, the Bombay High Court in the matter of Bidi Leaves and Tobacco Merchants Association v. The State of Bombay, 1958 SCC OnLine Bom 248 had elucidated the Latin phrase noticed herein-above as under: - "13. … Craies on Statute Law has stated at p. 239 of the 5th edn.: “Grant of a right implies grant of the means necessary for its exercise. … Craies on Statute Law has stated at p. 239 of the 5th edn.: “Grant of a right implies grant of the means necessary for its exercise. One of the first principles of law with regard to the effect of an enabling Act is that if the Legislature enables something to be done, it gives power at the same time, by necessary implication, to do everything which is indispensable for the purpose of carrying out the purpose in view, 'on the principle' as Parke B. said in Clarence Ry. v. Great N. of England Ry. (13 M. & W. 706) that ubi aliquid conceditur, conceditur etiam id swte quo res ipsa non esse potest.” “ 11. In Corporation of Dudley, In re, (1881) 8 Q.B.D. 86 Brett L.J. said that (p. 93): "The general rule on this head of law is, that where the legislature gives power to a public body to do anything of a public character, the legislature means also to give to the public body all rights, without which the power would become wholly unavailable, although such a meaning cannot be implied in relation to circumstances arising accidentally only." 12. Maxwell on the Interpretation of Statutes, 10th edn., has stated the legal position thus at p. 361: "Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution." 13. Crawford on Statutory Construction at p. 267 has stated: "One may find numerous situations where statutes have been extended by implication. Thus, a statutory grant of a power, privilege or property carries with it, by implication everything necessary to its enjoyment or exercise. So also the creation of a new duty or obligation or the prohibition of an act formerly lawful, carries with it, by implication, a corresponding remedy to assure its observance ..." 14. Thus, on the basis of above-stated legal principle, it is quite vivid that a statutory Tribunal which has been conferred with the power to adjudicate a dispute and has also the power and jurisdiction to implement its order so passed. The Information Commissions constituted under the RTI Act have been vested with the powers of civil court under Section 18 of the RTI which states as under: - “18. The Information Commissions constituted under the RTI Act have been vested with the powers of civil court under Section 18 of the RTI which states as under: - “18. Powers and functions of Commission:-(1) xxx (2) xxx xxx xxx (3) The Central Information Commission or State Information Commission, as the case may be shall, while inquiring into any matter under this section, have the same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908, in respect of the following matters, namely:— (a) summoning and enforcing the attendance of persons and compel them to give oral or written evidence on oath and to produce the documents or things; (b) requiring the discovery and inspection of documents; (c) receiving evidence on affidavit; (d) requisitioning any public record or copies thereof from any court or office; (e) issuing summons for examination of witnesses or documents; and (f) any other matter which may be prescribed. (4) xxx xxx xxx” 15. Apart from this, under Section 19(8)(b) of the RTI Act, the Central Information or State Information Commission, as the case may be, has power and jurisdiction to require the public authority to compensate the complainant for any loss or other detriment suffered. Section 20 of the RTI Act confers jurisdiction to the Central Information Commission or the State Information Commission, as the case may be, to impose a penalty of ? 250/- each day till application is received or information is furnished subject to maximum penalty of ? 25,000/-. Likewise, sub-section (2) of Section 20 of the RTI Act confers jurisdiction to the Central Information Commission or the State Information Commission, as the case may be, to recommend for disciplinary action against the Central Public Information Officer or the State Public Information Officer, as the case may be, under the service rules applicable to him in appropriate cases where the Commission at the time of deciding any complaint or appeal is of the opinion that the said Officer without any reasonable cause and persistently, failed to receive an application for information or has not furnished information within the time specified under sub-section (1) of Section 7 or mala fidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information. As such, the RTI Act is a self-contained Code and sufficient powers have been vested to the Commission to enforce its own order to do complete justice. Therefore, it cannot be concluded that the Commission has no power and jurisdiction to enforce its own order, as sufficient power and jurisdiction have been conferred to the State Information Commission(s) by the Legislature while enacting the RTI Act. 16. It is trite law that the jurisdiction of this Court under Article 226 of the Constitution of India is limited to seeing that the judicial or quasijudicial tribunals or administrative bodies exercising quasi-judicial powers, do not exceed their statutory jurisdiction and correctly administer the law laid down by the statute under which they act. So long as the hierarchy of officers and appellate authority created by the statute function within their ambit, this Court need not interfere. Even otherwise, the powers of judicial supervision of the High Court under Articled 227 of the Constitution of India are not greater than those under Article 226 of the Constitution and must be limited to seeing that tribunal functions within the limits of its authority. 17. Reverting to the facts of the present case, it is apparent on the face of record that the second appeal filed by the petitioner has been entertained and direction to furnish information has been issued by the Commission to the Public Information Officer in the complaint filed for non-compliance of its order and even show cause notice has been issued for imposing penalty under Section 20(1) of the RTI Act recommending departmental action under Section 20(2) against the Public Information Officer, but thereafter, the matter has not been pursued by the petitioner before the Commission further and writ petitions have been filed to get the order of the State Information Commission executed. This court in extraordinary jurisdiction would not like to convert itself (writ court) into executing court, as it has already been held that the State Information Commission has power and jurisdiction to get its order complied with for which the petitioner has to approach the Commission and repose faith on the Commission. As such, the writ petitions cannot be entertained for mere execution of order, as the petitioner without conclusion of proceedings initiated for non-compliance of the order passed by the Commission has approached this Court. 18. As such, the writ petitions cannot be entertained for mere execution of order, as the petitioner without conclusion of proceedings initiated for non-compliance of the order passed by the Commission has approached this Court. 18. Apart from this, under Section 25 of the RTI Act a provision for monitoring and reporting has been enacted providing that the Commission shall prepare a report on the implementation of the provisions of the RTI Act during that year and forward a copy thereof to the appropriate Government. The report shall contain recommendations for reform, including recommendations in respect of the particular public authorities, for the development, improvement, modernisation, reform or amendment of the RTI Act or other legislation or common law or any other matter relevant for operationalising the right to access information, and that report has to be laid before the appropriate legislature and as such, sufficient safeguard / procedure has been laid down in the Act for securing the compliance of its order. 19. Concludingly, as such, resort by the petitioner to the remedy under Article 226 of the Constitution of India without availing the remedy available under the RTI Act for getting the order of the Commission complied with is not only uncalled for, but also unnecessary. The petitioner is at liberty to pursue the jurisdiction of the Commission as provided under Section 20(1) & (2) of the RTI Act which has already been initiated against the erring Public Information Officer. 20. With the aforesaid observations, all the writ petitions are dismissed. No order as to cost(s).