1 in the high court of karnataka at bangalore dated this the 25th day

1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF MARCH, 2014
BEFORE
THE HON’BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NOS.7169-7170/2011 (GM-RES)
BETWEEN:
1.
HIGH COURT OF KARNATAKA
A CONSTITUTIONAL AUTHORITY HAVING
ITS PRINCIPAL SEAT AT VIDHANA VEEDHI,
BANGALORE-560001
REPRESENTED HEREIN BY ITS
STATE PUBLIC INFORMATION OFFICER
AND DEPUTY REGISTRAR (ESTABLISHMENT).
2.
STATE PUBLIC INFORMATION OFFICER
AND DEPUTY REGISTRAR (ESTABLISHMENT)
THE HIGH COURT OF KARNATAKA
HIGH COURT BUILDING, VIDHANA VEEDHI,
BANGALORE-560 001.
... PETITIONERS
(BY SRI S.S. NAGANAND, SENIOR ADV. FOR
M/S. JUST LAW, ADVS.)
AND:
1.
KARNATAKA INFORMATION COMMISSION
AN AUTHORITY CONSTITUTED UNDER
RIGHT TO INFORMATION ACT
HAVING ITS OFFICE AT 3RD FLOOR,
M.S.BUILDING
BANGALORE-560 001.
2
2.
M.R.PRABHAKAR RAO
C/O M.R. KRISHNASWAMY, MAJOR,
NO.9/2, 3RD CROSS, SBM COLONY,
BANASHANKARI 1ST STAGE,
BANGALORE-560 050.
...RESPONDENTS
(BY SRI G.B. SHARATH GOWDA, ADV. FOR R1;
R2 - SERVED)
THESE PETITIONS ARE FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR
RECORDS IN CASE NO. KIC 6117 PTN 2010 ON THE FILE OF
THE 1ST RESPONDENT AND SET ASIDE THE ORDER DATED
17.01.2011 VIDE ANNEXURE-E PASSED THEREIN AND QUASH
THE PROCEEDINGS IN CASE NO.KIC 6117 PTN 2010 VIDE
ANNEXURE-E OF THE COMMISSIONER.
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Challenge in these writ petitions is to an order
passed in KIC/6117/PTN/2010, dated 17.01.2011 by the
Karnataka State Information Commission (for short ‘the
Commission’).
2.
The material facts and circumstances which
have given raise to these writ petitions can be summarised
as follows:
Respondent No.2 submitted an application dated
10.03.2010, to the Registrar (Judicial), High Court of
3
Karnataka, Bangalore, seeking information under the Right
to Information Act, 2005 (for short ‘the Act’), with regard
to an employee Mr. Muniyappa @ Vajra Muniyappa,
working as Jamedar in the High Court of Karnataka.
In
exercise of the power conferred under S.28 of the Act, the
Hon’ble Chief Justice, as the administrative head of the
High Court of Karnataka, has framed the Right to
Information (Regulation of Fee and Cost) Rules, 2005 (for
short ‘the Rules’). The said Rules have been published in
the Karnataka Gazette vide Notification No.HCE 715/05,
Bangalore, dated 14.10.2005.
Rule 3 provides that a
request for obtaining information under Sub-S.(1) of S.6 of
the Act shall be accompanied by an application fee of `10/by way of cash against a proper receipt, payable in the
name of Registrar General. The said application having
been forwarded to the State Public Information Officer
(SPIO) and the Deputy Registrar (Establishment), the
respondent No.2/applicant, was informed that the payment
of application fee by postal order being contrary to Rule 3,
the application is not admitted.
It was notified that the
4
application is required to be addressed to the SPIO and
hence, the postal order for `10/-, enclosed with the
application dated 10.03.2010 is returned.
The applicant
was notified that the information sought being personal in
nature, the disclosure of the same has no relationship with
the public activities or interest and hence, being covered
under S.8(1)(j) of the Act, cannot be furnished. A note was
appended to the said communication, under S.7(8) of the
Act, stating that, if the applicant is aggrieved against the
intimation, an appeal under S.19 of the Act lies to the
Appellate Authority/Registrar (Judicial), High Court of
Karnataka, Bangalore, to be filed within 30 days.
Respondent No.2, on 04.05.2010, filed a complaint
under S.18(1)(a) of the Act, before the Commission and
the same was registered as KIC/6117/PTN/2010. The
complaint was allowed on 17.01.2011 and the Deputy
Registrar of High Court of Karnataka was directed to
provide a copy of service register of Muniyappa @ Vajra
Muniyappa, within 30 days, free of cost, through RPAD,
5
under intimation to Commission and a direction was also
issued to show cause within 30 days, why penalty under
S.20(1) of the Act should not be levied on him. The said
order has been challenged in these writ petitions.
3.
Sri S.S. Naganand, learned Senior advocate,
contended that :
(a)
The Commission was in error in entertaining
the complaint under S.18 of the Act, with regard to a
matter which culminated in an order dated 06.04.2010
passed by the SPIO and the order being appealable under
S.19 of the Act.
(b)
The Commission was in error and acted in
excess of its jurisdiction in entertaining the complaint, as
though, it was a original proceeding and examined the
order of the SPIO, as if it was an Appellate Authority, when
the Commission was not vested with the power to
examine, under S.18 of the Act, the correctness/otherwise
of an order passed by the SPIO.
6
(c)
By taking up the complaint as a original
proceeding, the Commission has rendered S.19 of the Act
as redundant and otiose.
(d)
The impugned order of the Commission is
without jurisdiction and illegal.
The Commission has
completely misdirected itself in failing to notice the noncompliance of the provisions of the Rules framed by the
Competent Authority under S.2(e) of the Act, by exercise
of the power conferred under S.28 of the Act.
He
submitted that the Commission, instead, adverted to the
Karnataka Right to Information Rules, 2005, framed by the
State Government, which is inapplicable to any application
filed before the High Court of Karnataka, as the Competent
Authority has framed the Rules, which are applicable to the
High Court of Karnataka.
He submitted that, the SPIO,
having applied the applicable Rule correctly in dealing with
the application filed by the respondent No.2, there was no
ground for the Commission to ignore the provisions of the
statutory Rules.
7
(e)
The reasoning in the impugned order of the
Commission and its approach to the case is completely
perverse.
(f)
While
passing
the
impugned
order,
the
Commission has simultaneously initiated action under S.20
of the Act proposing to levy the penalty on the SPIO, who
had acted within four corners of the law in holding that the
application seeking information was not in conformity with
the Rules, which are applicable. Thus, the impugned order
is illegal.
(g)
The
respondent
No.2/applicant,
without
exhausting the alternative remedy of preferring an appeal
before the First Appellate Authority, having approached the
Commission
with
a
complaint,
the
same
being
not
maintainable, the impugned order calls for interference.
4.
Sri G.B. Sharath Gowda, learned advocate for
respondent No.1, on the other hand, submitted that
statement of objections was not filed to the complaint
lodged before the Commission by respondent No.2 and in
8
the circumstances, the Commission is justified in allowing
the complaint and directing the furnishing of a copy of the
service register of the employee, who is a public servant.
Learned counsel further submitted that in the facts and
circumstances of the case, no interference with the
impugned order is warranted.
5.
Respondent No.2, though is served with the
notice, has remained absent.
6.
Perused the writ record and considered the
rival contentions. The basic question which falls for decision in
this case is the jurisdiction, if any, of the Commission, under
S.18 of the Act, in directing the disclosure of the information.
7.
Respondent No.2 had sought information on
10.03.2010 by submitting an application vide Annexure-B.
The SPIO, intimated the respondent No.2, on 06.04.2010,
that the application cannot be admitted, on account of it
being contrary to Rule 3 and the postal order was
returned. The applicant was notified with regard to appeal
provided under S.19 of the Act, to the Registrar (Judicial),
9
High Court of Karnataka, within 30 days’ period, from the
date of receipt of the communication. Without filing the
appeal under S.19 of the Act, a complaint under S.18(1) of
the
Act
vide
Annexure-D
having
been
filed,
the
Commission has passed the order on 17.01.2011 vide
Annexure-E.
8.
In
the
case
of
CHIEF
INFORMATION
COMMISSIONER AND ANOTHER Vs. STATE OF MANIPUR AND
ANOTHER, AIR 2012 SC 864, the material facts were that an
application dated 09.02.2007 under S.6 of the Act for
obtaining of information from the SIO relating to the
magisterial enquiries initiated by the Government of
Manipur from 1980-2006 was filed. Finding no response,
the applicant filed a complaint under S.18 of the Act before
the State Chief Information Commissioner, who by an
order dated 30.05.2007 directed the State Information
Officer to furnish the information within 15 days.
order was challenged by filing writ petition.
Said
A second
application was filed on 19.05.2007 for obtaining similar
10
information for the period of 1980 – March 2007 and no
response having been received, the applicant filed a
complaint under S.18 of the Act, which was disposed on
14.08.2007, directing disclosure of the information sought
for within 15 days. The said order was also challenged by
filing of writ petition by the respondents.
Both the writ
petitions having been dismissed by a common order dated
16.11.2007 and writ appeals filed having been disposed of
on 29.07.2010, holding that under S.18 of the Act, the
State Information Commissioner has no power to direct
the respondent to furnish the information and further
having held that such a power has already been conferred
under S.19(8) of the Act on the basis of an exercise under
S.19 only and the direction to furnish information having
been held as without jurisdiction and directing the State
Information Commissioner to dispose of the complaint in
accordance
with
law,
feeling
aggrieved,
the
original
applicant/complainant filed a Special Leave Petition before
the Apex Court.
The question raised for determination
therein reads as follows:
11
“28. The question which falls for decision in this case is the
jurisdiction, if any, of the Information Commissioner under Section
18 in directing disclosure of information. In
the impugned
judgment of the Division Bench, the High Court held that the Chief
Information Commissioner acted beyond his jurisdiction by passing
the impugned decision dated 30th May, 2007 and 14th August,
2007. The Division Bench also held that under Section 18 of the
Act the State Information Commissioner is not empowered to pass
a direction to the State Information Officer for furnishing the
information sought for by the complainant.”
Taking
into
consideration
the
rival
contentions
advanced with reference to the scope of S.18 of the Act,
Apex Court has held as follows:
“30. It has been contended before us by the respondent that under
Section 18 of the Act the Central Information Commission or the
State Information Commission has no power to provide access to
the information which has been requested for by any person but
which has been denied to him. The only order which can be passed
by the Central Information Commission or the State Information
Commission, as the case may be, under Section 18 is an order of
penalty provided under Section 20. However, before such order is
passed the Commissioner must be satisfied that the conduct of the
Information Officer was not bona fide.
31. We uphold the said contention and do not find any error in the
impugned judgment of the High court whereby it has been held that
the Commissioner while entertaining a complaint under Section 18 of
the said Act has no jurisdiction to pass an order providing for access
to the information.”
(emphasis supplied)
12
9.
In the facts of this case, noticed supra,
respondent No.2 having applied for information under S.6
of the Act, after rejection was intimated by the SPIO on
06.04.2010 vide Annexure-C that the remedy of appeal is
provided under S.19(1) of the Act.
10.
The procedure for hearing of the appeals has
been provided in the Act.
The procedure contemplated
under Ss.18 and 19 of the Act is substantially different.
The power under S.18 is supervisory in character and the
procedure under S.19 is an appellate procedure and a
person, who is aggrieved by the intimation of the SPIO can
seek redressal by following the procedure under S.19.
11.
When the specific remedy has been made
available to an aggrieved party, under the Act, the
Commission was not justified in interfering with the order
passed by the SPIO.
When the Act itself provides for a
mechanism, the same cannot be by-passed, which would
defeat the provisions of the Act.
13
12.
In the instant case, the Commission has acted
in excess of its jurisdiction and has committed error in
passing the order dated 17.01.2011, directing the SPIO to
provide a copy of the service register of the employee, free
of cost, through RPAD and in issuing the direction to showcause, why penalty under S.20(1) of the Act should not be
levied, by being of the opinion that there is arbitrariness in
refusing the information sought.
13.
The impugned order is contrary to the decision
of the Apex Court, noticed supra. The contentions urged
by Sri S.S. Naganand are well founded and hence the
impugned order cannot be sustained.
In the result, the writ petitions are allowed and the
impugned order is quashed. The complaint filed before the
Commission being not maintainable, is dismissed.
No costs.
Sd/JUDGE
sac*

Download Report