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2018 DIGILAW 770 (GUJ)

Chandusinh Keshaji Darbar v. Mamlatdar, Viramgam

2018-06-21

BELA M.TRIVEDI

body2018
JUDGMENT : BELA M. TRIVEDI, J. 1. The petitioner claiming to be a social activist, has filed the present petition for holding the Mamlatdar, Viramgam (Public Information Officer) guilty of not performing his duty, and to penalize him for his willful default in performing his duty and for noncompliance of the order passed by the State Chief Information Commissioner. 2. At the outset, it is required to be stated that this is one of the gross cases of misuse of the Right to Information Act, 2005 (hereinafter referred to as 'the said Act'). The petitioner had applied on 05.08.2016 to the respondent Mamlatdar, the Public Information Officer for providing the information in respect of 25 issues, which are as follows : - xxx xxx 3. As could be seen from the aforestated application, the so called “information” sought for was not only huge in quantity but was vague, incomprehensible and frivolous. It appears that since the petitioner was not provided the said information, as sought for by him within the prescribed time limit, he had approached the Appellate Authority by filing the First Appeal on 14.09.2016. The Appellate Authority and the Assistant Collector, Viramgam Prant, Viramgam had directed the Public Information Officer by the order dated 25.01.2017 to provide the information as sought for by the petitioner within 15 days of the receipt of the order. Since the Public Information Officer had not fully complied with the said order within prescribed time limit, the petitioner had preferred Second Appeal before the respondent No. 3 – Commissioner. When the Second Appeal was listed on board on 18.01.2018 by the respondent No. 3, the petitioner did not remain present and the respondent No. 3 passed the order observing that the petitioner had sought the information in bulk on various issues, out of which the Public Information Officer has already provided the information in part, and the other information being not possible to be provided, has not been provided. However, the respondent No. 3 passed the order directing the respondent No. 1 to provide the information, if not provided by him to the petitioner vide the order dated 18.01.2018. According to the petitioner, the respondent No. 1 Public Information Officer thereafter had not provided any information, and therefore, the present petition has been filed seeking action against the respondent No. 1. 4. According to the petitioner, the respondent No. 1 Public Information Officer thereafter had not provided any information, and therefore, the present petition has been filed seeking action against the respondent No. 1. 4. It is sought to be submitted by the learned advocate for the petitioner, who is appointed by the High Court Legal Aid Committee, that there was disobedience and laxity on the part of the respondent No. 1 in not providing all the information sought for by the petitioner in his application dated 05.08.2016, though directed by the respondent No. 3 – Commissioner, and therefore, appropriate action is required to be taken against him in the said Act. 5. Having regard to the submissions made by the learned advocate for the petitioner in light of the provisions of the said Act, it is required to be noted that as per Section 3 of the said Act, the citizens have right to the information that has been defined under Section 2(f) of the said Act, which reads as under: “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; 6. What is “Right to Information” has been defined under Section 2 (j) of the said Act, which reads as under : - “2 (j) "right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to- (i) inspection of work, documents, records; (ii) taking notes, extracts or certified copies of documents or records; (iii) taking certified samples of material; (iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device;” 7. The obligations of the public authorities have been enumerated in Section 4 of the said Act. 8. Upon the bare perusal of the aforestated provisions, it clearly transpires that the citizens would have right to such information, which is included in the definition of the “information” contained in Section 2(f) of the said Act. The obligations of the public authorities have been enumerated in Section 4 of the said Act. 8. Upon the bare perusal of the aforestated provisions, it clearly transpires that the citizens would have right to such information, which is included in the definition of the “information” contained in Section 2(f) of the said Act. The said information is subject to the exemptions under Section 8 of the said Act. The Supreme Court while interpreting the provisions of the said Act in the case of Central Board of Secondary Eduction and Another versus Aditya Bandopadhyay and Others reported in (2011) 8 SCC 497 , has held as under : -“63. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing. This is clear from a combined reading of Section 3 and the definitions of “information” and “right to information” under clauses (f) and (j) of Section 2 of the Act. If a public authority has any information in the form of data or analysed data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions in Section 8 of the Act. But where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non-available information and then furnish it to an applicant. A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide “advice” or “opinion” to an applicant, nor required to obtain and furnish any “opinion” or “advice” to an applicant. The reference to “opinion” or “advice” in the definition of “information” in Section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance, and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act.” 9. Many public authorities have, as a public relation exercise, provide advice, guidance, and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act.” 9. Further in case of Institute of Chartered Accounts of India versus Shaunak H. Satya and Others reported in (2011) 8 SCC 781 , the Supreme Court considering the safeguards built into the Act in the light of the objects of the Act, observed as under : - “23. The information to which RTI Act applies falls into two categories, namely, (i) information which promotes transparency and accountability in the working of every public authority, disclosure of which helps in containing or discouraging corruption, enumerated in clauses (b) and (c) of section 4(1) of RTI Act; and (ii) other information held by public authorities not falling under section 4(1)(b) and (c) of RTI Act. In regard to information falling under the first category, the public authorities owe a duty to disseminate the information widely suo moto to the public so as to make it easily accessible to the public. In regard to information enumerated or required to be enumerated under section 4(1)(b) and (c) of RTI Act, necessarily and naturally, the competent authorities under the RTI Act, will have to act in a proactive manner so as to ensure accountability and ensure that the fight against corruption goes on relentlessly. But in regard to other information which do not fall under Section 4(1)(b) and ((c) of the Act, there is a need to proceed with circumspection as it is necessary to find out whether they are exempted from disclosure. 24. One of the objects of democracy is to bring about transparency of information to contain corruption and bring about accountability. But achieving this object does not mean that other equally important public interests including efficient functioning of the governments and public authorities, optimum use of limited fiscal resources, preservation of confidentiality of sensitive information, etc. are to be ignored or sacrificed. But achieving this object does not mean that other equally important public interests including efficient functioning of the governments and public authorities, optimum use of limited fiscal resources, preservation of confidentiality of sensitive information, etc. are to be ignored or sacrificed. The object of RTI Act is to harmonize the conflicting public interests, that is, ensuring transparency to bring in accountability and containing corruption on the one hand, and at the same time ensure that the revelation of information, in actual practice, does not harm or adversely affect other public interests which include efficient functioning of the governments, optimum use of limited fiscal resources and preservation of confidentiality of sensitive information, on the other hand. While sections 3 and 4 seek to achieve the first objective, sections 8, 9, 10 and 11 seek to achieve the second objective. 25. Therefore when section 8 exempts certain information from being disclosed, it should not be considered to be a fetter on the right to information, but as an equally important provision protecting other public interests essential for the fulfilment and preservation of democratic ideals. Therefore in dealing with information not falling under section 4(1) (b) and (c), the competent authorities under the RTI Act will not read the exemptions in section 8 in a restrictive manner but in a practical manner so that the other public interests are preserved and the RTI Act attains a fine balance between its goal of attaining transparency of information and safeguarding the other public interests.” 10. From the aforestated settled legal position, it clearly emerges that the said Act provides access to such information that is available and existing. If a Public Information Officer has any information in the form of data or analyzed data, or abstracts or statistics, the applicant may access such information subject to the exemptions under Section 8 of the said Act. Where the information sought, is not a part of the record of the public authority, and where such information is not required to be maintained under any law or rules or regulations of the public authority, the Act does not cast any application upon the public authority to collect or collate such non-available information and then furnish it to the applicant. A public authority is not required to furnish information by drawing inference or making assumptions nor it is required to provide “advice” or “opinion” to the applicant. A public authority is not required to furnish information by drawing inference or making assumptions nor it is required to provide “advice” or “opinion” to the applicant. The twine objects of the Act are to ensure transparency to bring accountability on one hand and to ensure that the revelation of information in actual practice does not harm or adversely affect the other public interest including efficient functioning of the public authorities, on the other hand. 11. Having regard to the said provisions of the said Act, and the interpretations made by the Supreme Court in the aforestated decisions, the Court is of the opinion that most of the information sought for in bulk by the petitioner in his application under the said Act, was nothing but to misuse of process of law, and to cause hurdles in the functioning of the respondent No. 1 inasmuch as the petitioner had sought absolutely vague and incomprehensible information, which the respondent No. 1 - Public Information Officer was neither required to maintain under any law nor was duty bound to collect or collate the information, not available with him. The petitioner under the guise of being a social activist, has kept on filing the proceedings on the ground that he was not furnished with the information asked for, however, the said Act does not oblige the public authorities to provide the information which they are not required to maintain under any law or rules or regulations, and which is exempted under the Act. It is to be noted that the respondent No. 1 had already provided the information in part as observed by the respondent No. 3 in the order dated 18.01.2018, however, there were number of particulars demanded by the petitioner in his application, which could not be directed to be provided. The learned advocate for the petitioner has also failed to point out as to which of the information was not provided to the petitioner, though the respondent No. 1 was bound to provide. 12. In that view of the matter, the Court is of the opinion that the present petition seeking action against the respondent No. 1 under the said Act, is not only frivolous but has been filed to misuse the process of law. Hence, the petition deserves to be dismissed with cost and is accordingly dismissed with cost of Rs. 5,000/-. 12. In that view of the matter, the Court is of the opinion that the present petition seeking action against the respondent No. 1 under the said Act, is not only frivolous but has been filed to misuse the process of law. Hence, the petition deserves to be dismissed with cost and is accordingly dismissed with cost of Rs. 5,000/-. The petitioner is directed to deposit the cost before this Court within two weeks from today. It appears that the petitioner had sought legal aid from the Legal Service Authority for filing this petition, however, the amount of cost shall be paid up by the petitioner from his personal pocket. The petition is dismissed accordingly with the above directions. 13. Copy of the order be sent to the respondent No. 3. Petition dismissed.