2013 (2) TMI 407 - HC - Indian Laws

Applicability of provisions of RTI ACT - petitioners are school run by the Trust a private unaided one - petitioner contested that respondent No.1 directed the Education Officer (Secondary) to procure information from them and then to supply it to respondent No.5, has done something which is prohibited by RTI Act and also contested about denial of opportunity - Held that - Perusal of impugned appellate judgment shows that Head Mistress working with petitioners i.e. petitioner No.3 had appeared before respondent No.1 on 20th September 2011 for giving evidence of the action taken on applications of respondent No.5. Hearing took place on 16th October 2011 and the impugned order records that on that day present respondent No.5 (appellant) was only present. This position has not been seriously disputed by respondent No.5. Respondent No.5 has not pointed out that there was any other notice or intimation to the petitioners to remain present for hearing on 16th October 2011. The submission of petitioners that out of documents demanded by respondent No.5 vide his two applications, available documents or information have been already supplied and remaining material is not available with it, therefore, does not find any consideration by respondent No.1. Issue whether copy of approval order sought for on 13th December 2010 by respondent No.5 is available with the petitioners or then, it is available with authorities granting approval i.e. respondent No.2, therefore, need not be looked into by this Court. Similarly, on 28th December 2012, respondent No.5 has demanded total nine documents or information & respondent 5 has stated that the information or documents in relation to serial Nos.1, 2, 3, 7, 8 and 9 are still not received by him. Whether this information or document/s is available with the petitioners or not can also be looked into by respondent No.1 after extending them an opportunity of hearing. It is not necessary for this Court to pronounce on it as petitioners have not been given necessary opportunity of hearing before passing of impugned order.

Summary

Issues Involved:
1. Applicability of the RTI Act to a private unaided school.
2. Jurisdiction of the State Information Commissioner under the RTI Act.
3. Violation of principles of natural justice.
4. Definition and scope of "third party" information under the RTI Act.
5. Powers of the appellate authority under Section 19(8) of the RTI Act.

Issue-wise Detailed Analysis:

1. Applicability of the RTI Act to a Private Unaided School:
The petitioners argued that the school run by the Trust is a private unaided institution and, therefore, not a public authority to which the provisions of the RTI Act are applicable. The authorities have concurred with this position, and the concurrent findings have not been contested by the respondent who sought the information.

2. Jurisdiction of the State Information Commissioner under the RTI Act:
The appellate authority directed the Education Officer (Secondary) to gather information from the petitioners and supply it to respondent No.5, an ex-employee of the petitioners. The petitioners contended that this direction exceeded the powers or jurisdiction under the RTI Act, as it sought to achieve indirectly what could not be done directly. The court evaluated whether the provisions of Section 19(8) of the RTI Act were sufficient to empower the appellate authority to issue such directions. It was determined that the appellate authority could issue directions to public authorities to use other powers available under any other law, such as the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (1977 Act), to procure information.

3. Violation of Principles of Natural Justice:
The petitioners claimed that the order passed by the State Information Commissioner was without any opportunity for them to be heard, thus breaching the principles of natural justice. The court noted that the Head Mistress had appeared before the State Commission, but the hearing was conducted on a date when the petitioners were absent without notice. This lack of opportunity for the petitioners to present their case rendered the order unsustainable.

4. Definition and Scope of "Third Party" Information under the RTI Act:
The petitioners argued that the information directed to be supplied was related to a "third party" as defined in Section 2(n) of the RTI Act, and the procedure prescribed in Section 11 for procuring such information had not been followed. The court found that the appellate authority did not address these contentions adequately, and the impugned order did not consider whether the requested information was available with the petitioners or the authorities granting approval.

5. Powers of the Appellate Authority under Section 19(8) of the RTI Act:
The court analyzed the scope of Section 19(8) of the RTI Act, which allows the State Information Commissioner to require public authorities to take necessary steps to secure compliance with the RTI Act. It was concluded that the appellate authority's powers are broad and include issuing directions to public authorities to use other legal powers to procure information. This interpretation aligns with the legislative intent to ensure effective implementation of the RTI Act.

Conclusion:
The court held that the impugned order was unsustainable due to the lack of opportunity for the petitioners to be heard. The order dated 10th February 2012 was quashed and set aside, and the proceedings were restored for fresh hearing and consideration. The petitioners and respondent No.5 were directed to appear before the appellate authority for further instructions, with an emphasis on deciding the appeal as soon as possible. The petition was partly allowed and disposed of without costs.