Right to Information Act 2005

Public authority

It is necessary to refer and expert Section 2(f), (h), (j) and Section 3 of the Right to Information Act, 2005 (in short, ‘the Act’).

2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advice, 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;

(g) …

(h) “public authority” means any authority or body or institution of self-government established or constituted-

(a) by or under the Constitution;

(b) by any other law made by Parliament;

(c) by any other law made by State Legislature;

(d) by notification issued or order made by the appropriate Government and includes any-

(i) body owned, controlled or substantially financed;

(ii) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;

(i) …

(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 materials;

(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.

The object of the Act is to provide 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. In view of the above provisions excerpted, it cannot be said that Section 2(f) of the Act encompasses the personal information of the officials of the public authority. The intention of the legislation is to provide right to information to a citizen pertaining to public affairs of the public authority.

The expression “public authority” is defined in Section 2(h) of the RTI Act as follows:

h) “public authority” means any authority or body or institution of self- government established or constituted-

(a) by or under the Constitution;

(b) by any other law made by Parliament;

(c) by any other law made by State Legislature;

(d) by notification issued or order made by the appropriate Government, and includes any-

(i) body owned, controlled or substantially financed;

(ii) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;

 For an authority or body or institution to be classified as a public authority under clause (b) of Section 2(h), what is necessary is that the authority, body or institution is established or constituted by a law made by Parliament. Consciously, the Parliament has not used the expression “under any other law made by Parliament”. Therefore, the authority or body or institution should be created by, and come into existence by the statute framed by the Parliament, and not under the statute so framed. For example, a company is constituted under the Companies Act. It cannot be said that a company is constituted “by a law made by Parliament”. For it to be classified as an authority or body or institution under clause (b) or Section 2(h), it should be a statutory corporation.

Right to Information Act

The RTI Act is an Act enacted to provide for citizens to secure, access to information under the control of public authorities and to promote transparency and accountability in the working of every public authority. The preamble of the Act reads as follows:

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, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.

WHEREAS the Constitution of India has established democratic Republic;

AND WHEREAS 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;

AND WHEREAS revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information;

AND WHEREAS it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal;

NOW, THEREFORE, it is expedient to provide for furnishing certain information to citizens who desire to have it.

Every public authority is also obliged to maintain all its record duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerized are, within a reasonable time and subject to availability of resources, computerized and connected through a network all over the country on different systems so that access to such record is facilitated. Public authority has also to carry out certain other functions also, as provided under the Act.

The expression “public authority” is defined u/s 2(h) of the RTI Act, which reads as follows:

  1. Definitions. In this Act, unless the context otherwise requires:

(h) “public authority” means any authority or body or institution of self-government established or constituted–

(a) by or under the Constitution;

(b) by any other law made by Parliament;

(c) by any other law made by State Legislature;

(d) by notification issued or order made by the appropriate Government, and includes any–

(i) body owned, controlled or substantially financed;

(ii) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government.

Legislature, in its wisdom, while defining the expression “public authority” u/s 2(h), intended to embrace only those categories, which are specifically included, unless the context of the Act otherwise requires. Section 2(h) has used the expressions ‘means’ and includes’. When a word is defined to ‘mean’ something, the definition is prima facie restrictive and where the word is defined to ‘include’ some other thing, the definition is prima facie extensive. But when both the expressions “means” and “includes” are used, the categories mentioned there would exhaust themselves. Meanings of the expressions ‘means’ and ‘includes’ have been explained by this Court in Delhi Development Authority Vs. Bhola Nath Sharma (Dead) by L.Rs. and Others, When such expressions are used, they may afford an exhaustive explanation of the meaning which for the purpose of the Act, must invariably be attached to those words and expressions.

Section 2(h) exhausts the categories mentioned therein. The former part of 2(h) deals with:

(1) an authority or body or institution of self-government established by or under the Constitution,

(2) an authority or body or institution of self-government established or constituted by any other law made by the Parliament,

(3) an authority or body or institution of self-government established or constituted by any other law made by the State legislature, and

(4) an authority or body or institution of self-government established or constituted by notification issued or order made by the appropriate government.

Societies, with which we are concerned, admittedly, do not fall in the above mentioned categories, because none of them is either a body or institution of self-government, established or constituted under the Constitution, by law made by the Parliament, by law made by the State Legislature or by way of a notification issued or made by the appropriate government. Let us now examine whether they fall in the later part of Section 2(h) of the Act, which embraces within its fold:

(5) a body owned, controlled or substantially financed, directly or indirectly by funds provided by the appropriate government,

(6) non-governmental organizations substantially financed directly or indirectly by funds provided by the appropriate government.

The expression ‘Appropriate Government’ has also been defined u/s 2(a) of the RTI Act, which reads as follows:

2(a). “appropriate Government” means in relation to a public authority which is established, constituted, owned, controlled or substantially financed by funds provided directly or indirectly-

(i) by the Central Government or the Union territory administration, the Central Government;

(ii) by the State Government, the State Government.

The RTI Act, therefore, deals with bodies which are owned, controlled or substantially financed, directly or indirectly, by funds provided by the appropriate government and also non-government organizations substantially financed, directly or indirectly, by funds provided by the appropriate government, in the event of which they may fall within the definition of Section 2(h)(d)(i) or (ii) respectively. As already pointed out, a body, institution or an organization, which is neither a State within the meaning of Article 12 of the Constitution or instrumentalities, may still answer the definition of public authority u/s 2(h)(d)(i) or (ii).

(a) Body owned by the appropriate government-A body owned by the appropriate government clearly falls u/s 2(h)(d)(i) of the Act. A body owned, means to have a good legal title to it having the ultimate control over the affairs of that body, ownership takes in its fold control, finance etc. Further discussion of this concept is unnecessary because, admittedly, the societies in question are not owned by the appropriate government.

(b) Body Controlled by the Appropriate Government

A body which is controlled by the appropriate government can fall under the definition of public authority u/s 2(h)(d)(i). Let us examine the meaning of the expression “controlled” in the context of RTI Act and not in the context of the expression “controlled” judicially interpreted while examining the scope of the expression “State” under Article 12 of the Constitution or in the context of maintainability of a writ against a body or authority under Article 226 of the Constitution of India. The word “control” or “controlled” has not been defined in the RTI Act, and hence, we have to understand the scope of the expression ‘controlled’ in the context of the words which exist prior and subsequent i.e. “body owned” and “substantially financed” respectively. The meaning of the word “control” has come up for consideration in several cases before this Court in different contexts. In The State of West Bengal Vs. Nripendra Nath Bagchi, while interpreting the scope of Article 235 of the Constitution of India, which confers control by the High Court over District Courts, this Court held that the word “control” includes the power to take disciplinary action and all other incidental or consequential steps to effectuate this end and made the following observations:

The word ‘control’, as we have seen, was used for the first time in the Constitution and it is accompanied by the word ‘vest’ which is a strong word. It shows that the High Court is made the sole custodian of the control over the judiciary. Control, therefore, is not merely the power to arrange the day to day working of the court but contemplates disciplinary jurisdiction over the presiding Judge…. In our judgment, the control which is vested in the High Court is a complete control subject only to the power of the Governor in the matter of appointment (including dismissal and removal) and posting and promotion of District Judges. Within the exercise of the control vested in the High Court, the High Court can hold enquiries, impose punishments other than dismissal or removal….

The above position has been reiterated by this Court in Chief Justice of Andhra Pradesh and Others Vs. L.V.A. Dixitulu and Others, . In Corporation of the City of Nagpur, Civil Lines, Nagpur and another Vs. Ramchandra and others, while interpreting the provisions of Section 59(3) of the City of Nagpur Corporation Act, 1948, this Court held as follows:

  1. It is thus now settled by this Court that the term “control” is of a very wide connotation and amplitude and includes a large variety of powers which are incidental or consequential to achieve the powers-vested in the authority concerned….

The word “control” is also sometimes used synonyms with superintendence, management or authority to direct, restrict or regulate by a superior authority in exercise of its supervisory power. This Court in The Shamrao Vithal Co-operative Bank Ltd. Vs. Kasargod Pandhuranga Mallya, held that the word “control” does not comprehend within itself the adjudication of a claim made by a co-operative society against its members. The meaning of the word “control” has also been considered by this Court in State of Mysore Vs. Allum Karibasappa and Others, while interpreting Section 54 of the Mysore Cooperative Societies Act, 1959 and Court held that the word “control” suggests check, restraint or influence and intended to regulate and hold in check and restraint from action. The expression “control” again came up for consideration before this Court in Madan Mohan Choudhary Vs. The State of Bihar, in the context of Article 235 of the Constitution and the Court held that the expression “control” includes disciplinary control, transfer, promotion, confirmation, including transfer of a District Judge or recall of a District Judge posted on ex-cadre post or on deputation or on administrative post etc. so also premature and compulsory retirement. Reference may also be made to few other judgments of this Court reported in Gauhati High Court and Another Vs. Kuladhar Phukan and Another, , State of Haryana Vs. Inder Prakash Anand H.C.S. and Others, High Court of Judicature for Rajasthan Vs. Ramesh Chand Paliwal and Another, Kanhiya Lal Omar Vs. R.K. Trivedi and Others, T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others, , Ram Singh and Others Vs. Union Territory, Chandigarh and Others, etc.

Writ of Mandamus to the Public Authority

A writ of mandamus will lie only in a situation where the Petitioner who seeks for issue of a writ, has a legal right with a corresponding statutory duty to act on the part of a public authority and there is inaction on the part of that public authority and the person having right has demanded the exercise of his right, has insisted on the authority to pass proper orders and in most situations such demand or request being through an application in the prescribed form etc., prescribed by the rules made under the statutory provisions.

A writ of mandamus lies to direct a public authority to perform a public duty in accordance with the statutory provision if there is failure on the part of such authority to perform the legal or statutory duty. Mandamus is for compelling a public authority to perform in accordance with the statute. No mandamus lies to compel any public authority or the tribunal either to act contrary to a statutory provision or to overlook a statutory provision in performing its functions. Prayer for issue of a writ in the nature of mandamus in respect of the appeal said to have been filed by the Petitioner and pending before the tribunal and for a direction in this regard is totally misconceived. Mandamus does not lie. Prayer for mandamus cannot be granted by any stretch of imagination.

Promissory estoppel

Union of India (UOI) and Others Vs. Godfrey Philips India Ltd., , the doctrine of promissory estoppel is applicable against the Government in the exercise of its governmental, public or executive functions and the doctrine of executive necessity or freedom of future executive action cannot be invoked to defeat the applicability of the doctrine of promissory estoppel. Of course, there can be no promissory estoppel against the legislature in the exercise of its legislative functions nor can the Government or public authority be debarred by promissory estoppel from enforcing a statutory prohibition. It is equally true that promissory estoppel cannot be used to compel the Government or a public authority to carry out a representation or promise which is contrary to law or which is outside the authority or power of the officer of the Government or of the public authority to make. The doctrine of promissory estoppel, being an equitable doctrine, must yield when the equity so requires, if it can be shown by the Government or public authority that having regard to the facts as they have transpired, it would be inequitable to hold the Government or public authority to the promise or representation made by it and the Court would not raise an equity in favour ol the person to whom the promise or representation is made and enforce the promise or representation against the Government or public authority. The doctrine is applicable if a person has altered his position to his prejudice. In the instant cases, the petitioner had not been given coupes for which they had given the highest bids at the auctions. After acceptance and ratification of the bids by the State Government, agreements were to be executed both by the State Government and the petitioners. Until that had not been done, it is not understood as to how it could reasonably be said that the petitioners had altered their position to their prejudice and that consequently, the State was estopped by the doctrine of promissory estoppel.

Co-operative society

Dattaprasad Co-Operative Housing Society Ltd. Vs. Karnataka State Chief Information Commissioner and Another, the Right to Information Act, 2005 is not applicable to Co-operative Societies, inasmuch as, Co-operative Societies cannot be treated as a public authority.

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