“In this case he submitted the High Court of Calcutta was not constituted by the Central Government or even under the Constitution of India but by Her Majesty the Queen of England under Letters Patent dating from the time of Queen Victoria. Under section 44 the powers of such legislation are preserved and therefore, cannot be deemed to have been transcended by the power of the Government of India. He further went on to submit that as per Article 246 of the Constitution of India, which deals with the lawmaking powers of Parliament, the High Court is not under the control of President of India or the Government of India”.
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/PA/A/2009/0005, 06 & 07 dated 30-12-2009
Right to Information Act 2005 – Section 19 (3)
Appellant: Shri Sundeep Goyal;
Respondent: Calcutta High Court, Appeals Side
Appeal Heard: 17.9.2010
Decision Announced: 29.9.2010
FACTS
These are three appeals moved by Shri Sundeep Goyal, Director, Goyal Pvt. Ltd. Ballygunge Chambers, Kolkata with regard to information supplied by the PIO, Calcutta High Court, Kolkata. They stem from three requests of a similar nature all submitted on 5.2.2009 and have, therefore, been clubbed together for hearing.
File No. CIC/PA/A/2009/0005
In this case the information sought by Shri Sundeep Goyal is as follows:- “Name and address of the person holding the position of “receiver” in Calcutta High Court suit no. O.C.S. 255/1975, G.A. No. 3007 of 1999. (Central Bank of India vs. Khardah Co. Ltd)”
To this, he received a response dated 5.2.2009 i.e. the very date of making the application informing him as follows:-
“The information asked for cannot be supplied as the matter being subjudice the disclosure of information may constitute contempt of court.”
Shri Sundeep Goyal then moved an appeal on 27.2.2009 pleading as follows:-
“Aggrieved by the response received within prescribed period [5(1) (b)]”
The grounds for this appeal are as below:-
“However, the relevant provision (s) of the Right to Information Act, 2005, under which the said rejection has been presumably made, have not been stipulated.”
On not receiving any orders on his first appeal Shri Sundeep Goyal has moved his second appeal before us pleading as follows:-
“Various decisions by the CIC holding that ‘sub-judice’ is not a valid ground for withholding information sought for under the RTI Act.”
File No. CIC/PA/A/2009/06
In this case the request of appellant Shri Sundeep Goyal was as follows:- Amount of Monies held by the “Receiver” in Calcutta High Court suit no. C.S. 255/1975 GA No. 3007 of 1999 (Central Bank of India Vs Khardah Co. Ltd) giving detailed break-up of fixed deposits, savings account balances, T.D.C. certificates and any other head/ item.”
The reply that he received dated 5.2.2009 was again as below:- “The information asked for cannot be supplied, as the matter being subjudice the disclosure of information may constitute contempt of court.”
This case then followed an identical process with file no. CIC/PA/A/2009/05 with an identical second appeal.
File No. CIC/PA/A/2009/07
Similarly Shri Sundeep Goyal’s request in this file was as below:- Copy of orders passed in Calcutta High Court suit No. C.S. 255/1975 (Central Bank of India vs. Khardatt co. Ltd) in the following courts:-
(a) Court no. 8 on July 3, 2006. (annexure 2)
(b) Court no. 18 on September 1, 2007 (annexure 2) The response of 5.2.2009 was identical with the above two applications as was the process appeal and the second appeal before us.
In response to our appeal notice High Court of Calcutta in letter of 30.8.2010 has submitted an exhaustive reply. To this, is attached an order of First Appellate Authority in all three cases dated 14.9.2009 in which the Appellate Authority has held as follow:-
“I have carefully considered the three Appeals made by M/s Goyal Private Ltd, the Original Side Rules of the High court at Calcutta is to be read along with Act 22 of 2005. As per the judgment of the Hon’ble Supreme Court as laid down, Rules of Chartered High Court has overriding power to the existing law as applicable in other Courts. On the basis of the Principles laid down by the Hon’ble Supreme Court, I refer to Chapter IV Rule 10 of the Original Side Rules of the High Court at Calcutta, where it is specifically stated inter alia, that search of records, copies and inspection at the request of any person not a party to a suit or proceedings, shall be allowed such inspection or copies of the pleadings, proceedings, depositions, orders, decrees and other documents filed in a suit or proceedings when the matter is pending before the Hon’ble Court, subject to the order of the Judge. Without any specific order of the Hon’ble Court as I could find, request for supply of information as prayed for by the appellant tantamount to Contempt of Court, when the matter is subjudice and pending for disposal before the Hon’ble Court. I could also find from the records that the C.S. No. 255 of 1975, G.A. No. 3007 of 1999 (Central Bank of India -vs.- Khardah Co. Ltd) is pending for disposal before this Hon’ble Court.”
In this context the PIO who is an Assistant Master and Referee of the High Court has submitted as follows:-
“Furthermore, by a letter dated 15th September, 2009 bearing No. R 1936 the Appellate Authority had duly server a copy of the said order dated 14th September, 2009 upon Goyals Private Limited. A receipted copy of the letter dated 15th September, 2009 bearing the signature of one Mr. D. Mondal for Goyals Private Limited who had received the said letter dated 15th September, 2009 bearing No. R 1936 along with a copy of the order dated 14th September, 2009 at the office of Goyals Private Limited being premises No. 53/1/3, Hazra Road, Kolkata – 19 is also annexed hereto and marked with the letter ‘D’.”
The PIO has further clarified as follows:-
“Rule 10 of Chapter IV of The Original Side Rules of The High Court at Calcutta, 1914 states as follows:
‘The officer-in-charge of records shall, at the request of any person not a party to a suit or proceedings, grant or allow search, inspection or copies of all pleadings, proceeding, depositions, orders, decrees and other documents filed in such suit or proceeding, or such parts thereof as he may require, on payment of the proper fees and charges, except during the pendency of such suit or proceeding when the granting of same shall be in the discretion of the Registrar subject to the order of the Judge’. A copy of the relevant pages from the Original Side Rules of the High Court at Calcutta, 1914 is annexed hereto and marked with the letter ‘F’.”
PIO has, however, submitted that the required fees under Rule 9 of the Calcutta High Court (Right to Information) Rules has not been paid. However, in concluding his submission PIO has submitted as below:-
“It is further interesting to note that the Second Appeal from the decision of the Appellate Authority on the Original Side of High Court, Calcutta under Section 19(3) of the Right to Information act, 2005 lies with the State Information Commission and not the Central Information Commission as both the Public Information Officer and the Appellate Authority on the Original Side of High Court, Calcutta have been notified under the State Government Gazettes and not Central Government Gazette.”
The appeals were heard on 17-9-2010 through video-conferencing. The following are present.
Appellant: at NIC Studio- Kolkata Shri Sandeep Goyal Respondents at NIC Studio- Kolkata Shri Imran Hafiz, PIO, High Court of Kolkata Appellant Shri Sundeep Goyal submitted that on his application he has agreed to pay such fees as are necessary. However, the High Court has been unable to confirm the manner in which such payment has to be made, nor specified the amount of payment of fees nor could this matter be clarified to him on visiting the High Court. He expressed his readiness to pay whatever fee is necessary in the manner prescribed if he is intimated. To this, respondent Shri Imran Hafiz, PIO replied that the fee was not at issue since the application had nevertheless been accepted and replied to even though the fee was not received even after the reply had been received by appellant Shri Sundeep Goyal. On the question of the order of the Appellate Authority, High Court of Calcutta in appeal, appellant Shri Sundeep Goyal has conceded that he had in fact received the order and subsequent to this had submitted that he had modified the appeal. This modified appeal has not been received by this Commission.
Jurisdiction On the question of the jurisdiction of the Central Information Commission with reference to the submission of the PIO High Court of Calcutta in his letter of 30.8.2010, Shri Imran Hafiz submitted that to qualify as the “appropriate government” exercising jurisdiction over a public authority this must be a public authority ‘which is established, constituted, owned, controlled or substantially financed by funds directly or indirectly by (i) Central Government, (ii) State Government’. In this case he submitted the High Court of Calcutta was not constituted by the Central Government or even under the Constitution of India but by Her Majesty the Queen of England under Letters Patent dating from the time of Queen Victoria. Under section 44 the powers of such legislation are preserved and therefore, cannot be deemed to have been transcended by the power of the Government of India. He further went on to submit that as per Article 246 of the Constitution of India, which deals with the lawmaking powers of Parliament, the High Court is not under the control of President of India or the Government of India. On the other hand in response to a question from this Commission PIO Shri Imran Hafiz conceded that if it is agreed that the High Court of Calcutta, unlike other High Courts and Supreme Court of India had not been established or constituted by the Central Government. It was also not established or indeed constituted by the State Government, besides although the staff of High Court is indeed financed by State Government, it was agreed that indeed the salary of Justices which is the bulk of the finance of High Court is borne from the consolidated fund of India. Moreover it is specified in List of I of the Seventh Schedule, which is referred to in defining the powers of Parliament under Article 246 of the Constitution, the following are included in the powers of the Union:
“78. Constitution and organisation [(including vacations)] of the High Courts except provisions as to officers and servants of High Courts; persons entitled to practice before the High Courts.
79. Extension of the jurisdiction of a High Court to, and exclusion of the jurisdiction of a High Court from, any Union territory.”
Shri Sundeep Goyal on his part has subsequently submitted a statement through fax dated 20.9.2010 in which he has prayed as follows:
We pray for the following orders from this Honourable Commission
1. To set aside (a) the three orders dated February 5, 2009, issued by the PIO, and (b) Order No R-1936 dated September 15, 2009, issued by the Appellate Authority, namely Registrar, Original Side, Calcutta High Court, and
2. To direct the PIO to immediately provide the required information and to take all steps for procuring the same, so as to fulfil the obligations of the Calcutta High Court under the RTI act in respect of the three applications made by the Appellants.
He has grounded this plea on the following:
1. The Public Authority cannot take the plea of non-payment of fees when they themselves were not in a position to accept it.
2. The order of the Appellate Authority has violated the principles of natural justice as it was issued without giving the Appellant the opportunity of being heard.
3. The Public Authority has wrongly based its refusal to provide information under Section 8(b) of the RTI Act, as ‘sub-judice’ is not a ground covered by this exemption.
4. The invocation of this own Rule 10 as an over-riding means to withhold information strikes at the root of the RTI Act as applicable to this Court. Since it is inconsistent with the provisions of the RTI Act, under Section 22 of the Act, it should not be allowed to stand in the way of providing information as provided in the RTI Act.
5. In any case the said Rule 10 does not apply to two out of three application of the Appellant.
DECISION NOTICE:
Right to Information Act, 2005 was enacted by the Parliament and preamble of the Act says that it is for setting out a 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 Central Information Commission and State Information Commission and for matters connected therewith or incidental thereto.
Section 2 of the Act contains ‘definitions’ and starts with:-
In this Act, unless the contest otherwise requires:-
(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 Act has defined the jurisdiction as per the Constitution of Public Authorities. In case Public authorities are established, constituted, owned, controlled or substantially financed by the Central Government then the jurisdiction to hear appeals and complaints is of the Central Information Commission.
As per Article 366(14) of the Constitution of India, “High Court” means any court which is deemed for the purposes of this Constitution to be a High Court for any state and includes-
(a) any court in the territory of India, constituted or reconstituted under this Constitution as a High Court, and
(b) any other court in the territory of India which may be declared by the Parliament by Law to be a High Court for all or any of the purposes of this Constitution.
Similarly, entry 78 of the List I of Schedule VII talks about Constitution and organization (including vacation) of the High Courts except provisions as to officers and servants of High Courts; persons entitled to practice before the High Court. D D Basu’s Shorter Constitution of India, 38th Edition at page 1757 states “by the present entry, the union is given exclusive power over the constitution and organization of the High Courts. By Articles 216-217, the power of appointment of the High Court Judges has invested in the President. The power over the constitution of the High Courts is given to the Parliament for the sake of uniformity.”
The reading of the Constitutional Provisions and the Statutory Provisions leads the Commission to draw the conclusion that the Central Information Commission will have jurisdiction over the High Courts for the Purposes of Right to Information Act. The various other High Courts in the Country like P & H High Court, Delhi High court; Madras High Court and High Court of Jharkhand have appeared before the Commission.
Although respondent Shri Imran Hafiz has ably contended that it will not be the Govt. of India or the Union or indeed the Constitution of India which established or constituted the Calcutta High Court, quite clearly in the context of the present when so called Majesties have ceased to exist and have been succeeded within India or from outside by the Sovereign Democratic Republic of India of which the Head of State is the President of the Union of India, any claim of any public authority in India to have been established by an authority other than those mentioned under the RTI Act cannot be accepted. We must, therefore, conclude this issue with the ruling that the Calcutta High Court on Appeals Side falls squarely within the jurisdiction of the Central Information Commission in accordance with Section 2 (a) of the RTI Act. Even though the Calcutta High Court (Right to Information Rules) 2006 may have been notified by the State Government in the Kolkata Gazette the information sought is not with regard to the working of these rules but with regard to the processes being pursued by the Calcutta High Court in its jurisdictional side, which the Calcutta High Court itself has acknowledged by Appellate Authority’s reference to Rule 10 of Chapter IV of the Original Side Rules of the High Court at Calcutta 1914, which has a direct bearing on the functioning of the Hon’ble Justices of the Calcutta High Court.
Coming then to the prayer of applicant and his plea made on the basis of the response received from Appellate Authority it was confirmed that the pending case of Central Bank of India Vs. Kharda Co. Ltd. (Civil Suit No. 2555/1975 GA No. 3007 of 1999) because of the pendency of which information had been refused by Appellate Authority, Registrar, Original Side, High Court of Calcutta in his order of 14-9-2009 is still pending. Notwithstanding these rules, however, the plea taken both by CPIO and Appellate Authority in all three cases is that the disclosure will amount to contempt of court and, therefore, subject to exemption u/s 8 (1) (b). This section reads as follows:
“Information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;”
In the present case Rule 10 of the Kolkata High Court (Jurisdictional Limits) Act 1919 reads as follows:
10. Search of records, copies, Inspection by non-party – The officer-in- charge of records shall, at the request of any person not a party to a suit or proceedings, grant or allow search, inspection or copies of all pleadings, proceeding, depositions, orders, decrees and other documents filed in such suit or proceeding, or such parts thereof as he may require, on payment of the proper fees and charges, except during the pendency of such suit or proceeding when the granting of same shall be in the discretion of the Registrar subject to the order of the Judge.1 This rule does not debar disclosure of such information in the manner prescribed, as emphasized by us in the above quote. Clearly then this must be read together with Section 8 (1) (h) of the RTI Act which in turn reads as below.
“information which would impede the process of investigation or apprehension or prosecution of offenders”.
Clearly then the Rules of the High Court of Calcutta (1914) on the Original Side passed under the Letters Patent 1865 and Kolkata High Court (Jurisdictional Limits) Act 1919, already protects the information from such disclosure by making this subject to the order of the Judge. However, as part of the procedure for accessing such information it will no doubt be necessary to Emphasis added make reference to such Judge as is provided for u/s 5 (4) of the Act. On the issue of Sec 8(1) (h) we have a detailed ruling from the Delhi High Court in WP No. 3114/2007; Bhagat Singh vs. Chief Information Commissioner & Ors, in which case Hon’ble Ravinder Bhat, J. has held as follows with specific regard to Sec. 8(1) (h):
11. “The Universal Declaration of Human Rights, adopted by the United Nations in 1948, assured by Article 19, everyone the right “to seek, receive and impart information and ideas through any media, regardless of frontiers”. In Secretary Ministry of Information and Broadcasting, Govt. of India and others vs. Cricket Association of Bengal and others (1995 (2) SCC 161) the Supreme Court remarket about this right in the following terms:
“The right to freedom of speech and expression includes the right to receive and impart information. For ensuring the free speech right of the citizens of this country, it is necessary that the citizens have the benefit of plurality of views and a range of opinions on all public issues. A successful democracy posits an “aware” citizenry. Diversity of opinions, views, ideas and ideologies is essential to enable the citizen to arrive at informed judgment on all issues touching them.”
This right to information, was explicitly held to be our fundamental right under Article 19 (1) (a) of the Constitution of India for the first time by Justice K. K. Mathew in the State of UP vs. Raj Narain, (1975) (4) SCC 428. This view was followed by the Supreme Court on a number of decisions and after public demand, the Right to Information Act, 2005 was enacted and brought into force.
12. The Act is an effectuation of the Right to freedom of speech and expression. In an increasingly knowledge based society, information and access to information holds the key to resources, benefits and distribution of powers. Information, more than any other element, is of critical importance participatory democracy. By one fell stroke, under the Act, the make of procedures and official barriers that had previously impeded information, has been swept aside. The citizen and information seekers have, subject to a few exceptions, an overriding right to be given information on matters in the possession of the state and public agencies that are covered by the Act. As is reflected in its preambular paragraphs, the enactment seeks to promote transparency, arrest corruption and to hold the government’s and its instrumentalities accountable to the governed. This spirit of the Act must be borne in mind while construing the provisions contained therein.
13. Access to information under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right self. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation process cannot be a ground for refusal of the information, the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, section 8(1) (h) and other such provisions would become the haven for dodging demands for information.
14. A rights based enactment is akin to a welfare measure, like the Act, should receive a liberal interpretation. The contextual background and history of the Act is such that the exemptions, outlined in Section 8, relieving the authorities from the obligation to provide information, constitute restrictions on the exercise of the rights provided by it. Therefore, such exemption provisions have to be construed in their terms, there is some authority supporting this view (See Nathi Devi vs. Radha Devi Gupta 2005 (2) SCC201, B. R. Kapoor vs. State of Tamil Nadu 2001 (7) SCC 231 and V. Tulasamma vs. Sesha Reddy 1977 (3) SCC 99). Adopting a different approach would result in narrowing the rights and approving a judicially mandated class of restrictions on the rights under the Act, which is unwarranted.”
15. As to the issue of whether the investigation has been complete or not, I think that WP (C) No.3114/07 10 of 11 the authorities have not applied their mind about the nature of information sought. As is submitted by the Petitioner, he merely seeks access to the preliminary reports investigation pursuant to which notices under Sections 131, 143(2), 148 of the Income Tax have been issued and not as to the outcome of the investigation and reassessment carried on by the Assessing Officer. As held in the preceding part of the judgment, without a disclosure as to how the investigation process would be hampered by sharing the materials collected till the notices were issued to the assessee, the respondents could not have rejected the request for granting information2. The CIC, even after overruling the objection, should not have imposed the condition that information could be disclosed only after recovery was made.”
Underlined by us as relevant to present appeals.
From the above, it will be seen that the interpretation given to Rule 10 of the above Rules in the manner done by CPIO & Appellate Authority of the Calcutta High Court in their orders of 5-2-2009 and 14-9-2009 is inconsistent with the dimensions of the application of exemption under sub Section (h) of Section 8 (1) of the RTI Act, even if it is conceded that the Rule itself is not so. It is not acceptable that because the application has not obtained the orders of the Judge, the application is to be rejected. It is the responsibility of the PIO to make the necessary reference. The order of appellate Authority of 14-9-2009 is, therefore, set aside. The information sought by appellant Shri Sandeep Goyal in all the three cases will now be supplied to him in accordance with Rules of the High Court of Calcutta (1914) on the Original Side, but since these were not supplied within the time limit mandated by the Act, they will be provided free of cost as per Sec. 7 (6) within 15 working days of the date of receipt of this Decision Notice. All three appeals are accordingly allowed. There will be no cost Reserved in the hearing, this Decision is announced on this twenty-ninth day of September 2010 in open chambers. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah)
Chief Information Commissioner
29-9-2010 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
(Pankaj K.P. Shreyaskar)
Joint Registrar
Date: 29-9-2010