High Court of Karnataka vs Karnataka Information Commission

A.N. Venugopala Gowda, J.—Challenge in these writ petitions is to an order passed in Case No. KIC/6117/PTN/2010, dated 17-1-2011 by the Karnataka State Information Commission (for short, ''the Commission''). The material facts and circumstances which have given raise to these writ petitions can be summarised as follows:

Respondent 2 submitted an application dated 10-3-2010, to the Registrar (Judicial), High Court of Karnataka, Bangalore, seeking information under the Right to Information Act, 2005 (for short, ''the Act''), with regard to an employee Mr. Muniyappa alias Vajra Muniyappa, working as Jamedar in the High Court of Karnataka. In exercise of the power conferred u/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-section (1) of Section 6 of the Act shall be accompanied by an application fee of Rs. 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 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 application is required to be addressed to the SPIO and hence, the postal order for Rs. 10/-, enclosed with the application dated 10-3-2010 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 u/s 8(1)(j) of the Act, cannot be furnished. A note was appended to the said communication, u/s 7(8) of the Act, stating that, if the applicant is aggrieved against the intimation, an appeal u/s 19 of the Act lies to the Appellate Authority/Registrar (Judicial), High Court of Karnataka, Bangalore, to be filed within 30 days.

Respondent 2, on 4-5-2010, filed a complaint u/s 18(1)(a) of the Act, before the Commission and the same was registered as Case No. KIC/6117/PTN/2010. The complaint was allowed on 17-1-2011 and the Deputy Registrar of High Court of Karnataka was directed to provide a copy of service register of Muniyappa alias Vajra Muniyappa, within 30 days, free of cost, through RPAD, under intimation to Commission and a direction was also issued to show cause within 30 days, why penalty u/s 20(1) of the Act should not be levied on him. The said order has been challenged in these writ petitions.

Sri S.S. Naganand, learned Senior Advocate, contended that:

(a) The Commission was in error in entertaining the complaint u/s 18 of the Act, with regard to a matter which culminated in an order dated 6-4-2010 passed by the SPIO and the order being appealable u/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, u/s 18 of the Act, the correctness/otherwise of an order passed by the SPIO.

(c) By taking up the complaint as a original proceeding, the Commission has rendered Section 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 non-compliance of the provisions of the Rules framed by the Competent Authority u/s 2(e) of the Act, by exercise of the power conferred u/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 2, there was no ground for the Commission to ignore the provisions of the statutory Rules.

(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 u/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 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.

Sri G.B. Sharath Gowda, learned Advocate for respondent 1, on the'' other hand, submitted that statement of objections was not filed to the complaint lodged before the Commission by respondent 2 and in 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.

Respondent 2, though is served with the notice, has remained absent.

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, u/s 18 of the Act, in directing the disclosure of the information.

Respondent 2 had sought information on 10-3-2010 by submitting an application vide Annexure-B. The SPIO, intimated the respondent 2, on 6-4-2010, 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 u/s 19 of the Act, to the Registrar (Judicial), High Court of Karnataka, within 30 days'' period, from the date of receipt of the communication. Without filing the appeal u/s 19 of the Act, a complaint u/s 18(1) of the Act vide Annexure-D having been filed, the Commission has passed the order on 17-1-2011 vide Annexure-E.

In the case of Chief Information Commr. and Another Vs. State of Manipur and Another, , the material facts were that an application dated 9-2-2007 u/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 u/s 18 of the Act before the State Chief Information Commissioner, who by an order dated 30-5-2007 directed the State Information Officer to furnish the information within 15 days. Said order was challenged by filing writ petition. A second application was filed on 19-5-2007 for obtaining similar information for the period of 1980 - March 2007 and no response having been received, the applicant filed a complaint u/s 18 of the Act, which was disposed on 14-8-2007, 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 29-7-2010, holding that u/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 u/s 19(8) of the Act on the basis of an exercise u/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 SLP before the Apex Court. The question raised for determination therein reads as follows:

The question which falls for decision in this case is the jurisdiction, if any, of the Information Commissioner u/s 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 u/s 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 Section 18 of the Act, Apex Court has held as follows:

It has been contended before us by the respondent that u/s 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, u/s 18 is an order of penalty provided u/s 20. However, before such order is passed the Commissioner must be satisfied that the conduct of the Information Officer was not bona fide.

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 u/s 18 of the said Act has no jurisdiction to pass an order providing for access to the information".

(emphasis supplied)

In the facts of this case, noticed supra, respondent 2 having applied for information u/s 6 of the Act, after rejection was intimated by the SPIO on 6-4-2010 vide Annexure-C that the remedy of appeal is provided u/s 19(1) of the Act.

The procedure for hearing of the appeals has been provided in the Act. The procedure contemplated under Sections 18 and 19 of the Act is substantially different. The power u/s 18 is supervisory in character and the procedure u/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 u/s 19.

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 bypassed, which would defeat the provisions of the Act.

In the instant case, the Commission has acted in excess of its jurisdiction and has committed error in passing the order dated 17-1-2011, 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 show cause, why penalty u/s 20(1) of the Act should not be levied, by being of the opinion that there is arbitrariness in refusing the information sought. 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.