CENTRAL INFORMATION COMMISSION

..

F.No.CIC/AT/A/2008/01137
Dated, the 13th March, 2009.

Appellant : Shri D.N. Loharuka

Respondents : High Court of Judicature at Mumbai

FACTS OF THE CASE:

The appellant submitted an application under the RTI Act, 2005 to the
Public Information Officer (PIO) of the High Court of Judicature at Bombay on
16.04.2008 seeking 11 items of information which, inter-alia, included

(i) status about letter sent to the High Court by Speed Post No.EE-
176452405 IN dated 23.3.2006; and

(ii) queries as to under what provisions of the criminal Law/Act and for
want reasons, certain relief were granted to accused persons in
criminal Writ Petition Nos.735, 737 and 736 of 2004;

(iii) the basis of promotion and posting of Shri S.B. Shukre, 4th ASJ
Nagpur to the post of Additional Registrar of the Bombay High
Court.

2. The PIO, in his reply dated 22.05.2008, informed the appellant that
information pertaining to Item No.1 was not available with the Public Authority
whereas the other information contained in Item Nos.2 to Item No.11 do not
come within the purview of the Right to Information Act.

3. Appellant submitted an appeal before the First Appellate Authority on

27.05.2008 stating that the reply furnished by the PIO was unsatisfactory. The
appellant further averred in his appeal that the right to information has wide
scope and that a citizen has a right to seek information on all such aspects where
action has been taken in disregard of legal provisions. The appellant also
submitted that he has already submitted documentary evidence in support of such
frauds and cheatings before the High Court.

4. When the appellant did not receive any reply from the First Appellate
Authority within the time prescribed, he submitted second-appeal before this
Commission on 08.08.2008. He submitted that this is a case of deemed refusal

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of the first-appeal and prayed that the Commission should pass appropriate
orders for providing information with correct proposition of laws.

5. The First Appellate Authority in the meanwhile rejected the appeal

petition filed by the appellant. It appears that the appeal petition was rejected on
the ground that the appellant did not affix court fee stamp of Rs.40/- on the first
appeal submitted by him and did not attach a certified copy of the impugned
order passed by the PIO. The rejection of the first appeal was intimated vide
letter dated 14.8.2008 sent by PIO. The appellant also advised that if he feels
aggrieved with the above order, he may prefer second-appeal before the State
Information Commission, Bombay within 90 days of the receipt of the letter.
However, the appellant in his letter dated 12.9.2008, a copy whereof has been
marked to this Commission, has stated that he did not receive any of the
communications stated to have been sent to him by the PIO of the Bombay High
Court.

6. PIO by his note dated 15.10.2008 also informed the Registrar General of
the High Court that by letter dated 14.8.2008, PIO had already informed the
appellant that 2nd appellate authority is the State Information Commission but
since the appellant has already filed 2nd appeal before the Central Information
Commission in which he has not made any specific request, therefore, the said
letter should be filed without taking any action.

7. The matter was listed for hearing before Division Bench in view of
decision taken by this Commission in its Weekly Meeting that all appeals and
complaints filed against various High Courts should be heard by a Bench
consisting of two Information Commissioners. The hearing was fixed for
29.01.2009 and notices were issued to the appellant as well as to PIO and AA of
the Public Authority on 16.12.2008.

8. Appellant was present in person, while the respondents were represented

by Shri G.M. Khapre, PIO and Deputy Registrar, Bombay High Court, Nagpur
Bench, Nagpur.

9. The PIO and the Appellate Authority submitted a combined written reply
before this Commission on 29.01.2009 stating, inter-alia, as under:

i) The second-appeal is not maintainable as it should have been filed

before the State Information Commission.

ii) Reasons and justification being sought in respect of judicial

proceedings do not come within the ambit of Right to Information
Act in view of judgment of the High Court in the case of Dr.
Celsa Pinto, Ex-Officio Joint Commission (2004 Volo.110(4)
Bombay L.R. 1238).
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 iii) The First Appellate Authority on receipt of first appeal raised
certain objections regarding deficit of court fee of Rs.40/- on the
appeal and non-submission of the certified copy of the impugned
order. The same was communicated to the appellant by letter dated
13.6.2008 followed by reminder on 3.7.2008 (both sent under
Certificate of Posting) but the appellant took no action which led to
rejection of his appeal.

iv) The contention of the appellant that he did not receive any
communication cannot be accepted since the letter and reminder
were sent under Certificate of Posting on his last known postal
address.

v) Right to Information Act is attracted only in cases when the

information is available with the Public Authority, which is in the
form of records, documents, memos etc as defined in Section 2(f)
and (j) of the RTI Act.

vi) The appellant only sought justification and reasons in respect of

orders passed by the Court in the judicial proceedings, which does
not come within the ambit of Right to Information Act.

DECISIONS AND REASONS:

10. The first issue which has been raised in this case relates to jurisdiction of
this Commission to deal with the matter. Although this issue was not pressed at
the time of hearing, yet it is necessary to determine and decide the matter.

11. The Right to Information Act, 2005 provides for constitution of the
Central Information Commission under Section 12(1) of the Act and the State
Information Commission under Section 15(1) of the Act to exercise the powers
conferred and to perform the functions assigned to and under the Act. The
Central Information Commission is constituted by the Central Government and
the State Information Commission is constituted by the respective State
Government.

12. Since the Central as well as the State Information Commissions are
constituted by the respective Governments, their jurisdiction will naturally be
separate and distinct. What would come within the domain of the State would fall
within the jurisdiction of the State Information Commission and whatever is
within the domain of the Union of India will be within the exclusive jurisdiction
of the Central Information Commission.

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13. As per the definition of the Public Authority appearing in Section 2(h) of
the Right to Information Act, 2005, the Central Information Commission should
have exclusive jurisdiction in respect of all public authorities, which are
established or constituted

(i) by or under the Constitutional provisions concerning Union

of India;
(ii) by any other law made by Parliament;
(iii) by notification issued or order made by the Central
Government,
(iv) anybody owned, controlled or substantially financed directly
or indirectly by funds provided by the Central Government;
(v) non-Government organization substantially financed
directly or indirectly by funds provided by the Central
Government.

14. The constitution and organization of the High Courts is within the
legislative ambit of the Parliament under Entry 78 to the Schedule VII of the
Constitution. Article 231 of the Constitution provides that the Parliament may by
law establish a common High Court for two or more States or two or more States
and Union Territories. Thus, all the High Courts as Public Authorities under the
Right to Information Act, 2005 will come within the jurisdiction of the Central
Information Commission and not State Information Commission.

The issue is decided accordingly.

15. The PIO of the Public Authority appearing before the Commission stated
that most of the information that the appellant has asked for are in the form of
questions. He has sought justification and reasons in respect of the orders passed
by the Honble Court in judicial proceedings. This is clearly outside the ambit of
the definition of information appearing in Section 2(f) of the RTI Act.
Information under Section 2(f) means something which is tangible and available
in public authoritys record. Answer to hypothetical queries, or furnishing of
explanations do not come within the ambit of Section 2(f) of the RTI Act. The
issue concerning interpretation of the word information under Section 2(f) of
the RTI Act, 2005 came up before the Goa Bench of the Honble High Court of
Bombay in the case of Dr. Celsa Pinto, Ex-Officio Joint Commission (2004
Volo.110(4) Bombay L.R. 1238). The following observation of the Court
clarifies the scope of Section 2(f):-

The definition cannot include within its fold answers to the

question why which would be the same thing as asking the
reason for a justification for a particular thing. The Public
Information Authorities cannot expect to communicate to the
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 citizen the reason why a certain thing was done or not done in the
sense of a justification because the citizen makes a requisition
about information. Justifications are matter within the domain of
Adjudicating Authorities and cannot properly be classified as
information.

16. However, insofar as the information asked for vide Item No.1 is
concerned, the above proposition does not apply. PIO himself admitted that an
attempt could have been made by him to determine if the information was
available. The appellant in this case wants to know the status of the letter sent to
the Honble Chief Justice of High Court of Bombay by Speed Post on 23.3.2006.
At the hearing, the PIO stated that the letter was not available with the Nagpur
Bench of the Bombay High Court but could be available with the Principal
Bench at Mumbai. Since the information related to the same Public Authority,
the PIO could have obtained it from those who held the information and made it
available to the appellant, by seeking the holders assistance under Section 5(4)
of the Right to Information Act . He could have also sent the request of the
applicant to the PIO of the Principal Bench who could have then transmitted the
information to the appellant.

17. While such alternative options were available to CPIO, his rejecting the
RTI-application on the ground of non-availability of information does not seem
justified given the circumstances of the case. CPIO is required under Section
5(3) of the RTI Act to render reasonable assistance to the persons seeking such
information, which presupposes application of mind regarding where the
information can be located and how it can be accessed.

PIO is accordingly directed to ensure, by invoking the provisions of

Section 5(4) or 6(3) of the RTI Act, that a response is provided to the appellant
regarding the information asked for by him within three weeks from the date of
receipt of this decision.

18. The last question to be resolved is about rejection of the appeal-petition by

the First Appellate Authority on the ground that the appellant did not remove the
office objection relating to affixing of fee of Rs.40 on his first appeal as provided
under the rules of the Bombay High Court. In this connection, it may be
mentioned that the Honble High Court as a competent authority is empowered to
formulate the rules under Section 28 of the RTI Act. Section 29 reads as under:

Section 28:
(1) The competent authority may, by notification in the Official
Gazette, make rules to carry out the provisions of this Act.

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 (2) In particular, and without prejudice to the generality of the
foregoing power, such rules may provide for all or any of the
following matters, namely:
(i) the cost of the medium or print cost price of the materials to be
disseminated under sub-section (4) of section 4;
(ii) the fee payable under sub-section (1) of section 6;
(iii) the fee payable under sub-section (1) of section 7; and
(iv)any other matter which is required to be, or may be, prescribed

19. We wish to rest this matter by stating that the manner in which a
competent authority (under Section 2(e)) exercises its powers to frame rules
under Section 28, is not within the purview of this Commission.

Appeal petition accordingly stands disposed.

( A.N. TIWARI ) (SATYANANDA MISHRA)

Information Commissioner Information Commissioner

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.

(L.C. SINGHI)
Registrar

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