Bombay High Court

Vidarbha Youth Welfare Society, ... vs State Information Commission, ... on 6 September, 2016

Bench: Prasanna B. Varale

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.

WRIT PETITION NO. 1164 OF 2015

Vidarbha Youth Welfare Society,
Amravati, duly registered under the

provisions of the Bombay Public
Trust Act, 1950, bearing registration
no. PTR No. F-242/Amravati,
having its registered office at

Chaitanya Ganediwal, Shekapure
Bungalow, Amravati through its

secretary Shri Yuvraj S/o Vasantrao
Choudhary. ... Petitioner

// VERSUS //

(1) State Information Commission,
Amravati Division, Amravati.

(2) The First Appellate Authority @
District Vocational Education and

Training Officer, Amravati c/o near
bus stand, Amravati.

(3) The Information Officer @ Deputy

District Vocational Education and
Training Officer, Amravati c/o near
bus stand, Amravati.

(4) Shri Prashant s/o Wasudeorao

Deshmukh,
Age - adult, R/o Sangam,
Navjivan Colony, Hariganga oil
mill, Farshi stop, Amravati. ... Respondents
-------------------------------------------------------------------------------------------------
Shri S. A. Dutonde, Advocate for the petitioner
Mrs. H. N. Prabhu, Assistant Government Pleader for respondent nos.
2 and 3
-------------------------------------------------------------------------------------------------

::: Uploaded on - 07/09/2016 ::: Downloaded on - 08/09/2016 00:44:28 :::
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CORAM : PRASANNA B. VARALE, J.

                                              DATE    :   6-9-2016.




                                                         
    ORAL ORDER

Heard Shri S. A. Dutonde, learned counsel for the

petitioner and Mrs. Prabhu, learned Assistant Government Pleader for

the respondent nos. 2 and 3.

2. Though respondent no. 4 is duly served, none appears for

the respondent no. 4.

3. Rule. Rule made returnable forthwith.

4. The petitioner is before this Court challenging the order

passed by the learned State Information Commissioner, Amravati

Bench, Amravati dated 29-12-2014. By the said order, the State

Information Commissioner imposed costs of Rs. 10,000/- on the

petitioner-society as a compensation to be paid to the respondent

no. 4 within stipulated period and disposed of the appeal accordingly.

5. Few facts giving rise to the present petition are

summarized as follows :

The petitioner is a society duly registered under the provisions

of the Bombay Public Trust Act, 1950. The society runs various

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educational institutes imparting education at primary, secondary

and degree levels. The respondent no. 4 was one of the employees

in the degree college, namely, Barrister Ramrao Deshmukh and

Indiraji Tapdia Art and Commerce College, Badnera, District Amravati

run by the petitioner-society. It is the submission of the petitioner that

by following procedure, termination order dated 4-7-2012 was passed

against the respondent no. 4. The respondent no. 4 approached the

petitioner-society for grant of his General Provident Fund. The

petitioner-society forwarded the application to the respondent no. 2

office. The respondent no. 2 i.e. District Vocational Education and

Training Officer, Amravati raised certain objections on the application

filed by the respondent no. 4. It seems that there was some dispute

in grant of General Provident Fund and the period to which the

respondent no. 4 was entitled to. It is not necessary to refer the other

details of dispute between the respondent no. 4 and the petitioner-

society. As certain objections were raised by the respondent no. 2

office, the respondent no. 4 submitted an application to the first

authority i.e. the respondent no. 3 - Information Officer at District

Vocational Education and Training Officer, Amravati seeking

information about the provisions on which the objections were raised.

The application was replied by communication dated 21-4-2014. The

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communication refers to certain shortfalls. It also refers to a fact that

the requisite orders passed by the competent authority were not

annexed to the proposal for grant of the General Provident Fund by

the institute. The respondent no. 4 submitted an appeal before the

first appellate authority. It was the grievance of the respondent no. 4

that the necessary copy of the provisions were not made available to

the respondent no. 4 and the information provided to him was a

misleading information. On hearing the respondent no. 4, it appears

that the Information Officer apprised the respondent no. 4 that due to

procedural difficulties as well as due to a petition pending in the High

Court, the respondent no. 4 would not be entitled to General

Provident Fund, but if a proposal for releasing 75% of the amount of

General Provident Fund is submitted, the same would be forwarded to

the Joint Director along with recommendations. The first appellate

authority then observed that he was satisfied with the information

provided to the respondent no. 4 and then he requested to forward the

proposal for release of 75% of General Provident Fund to Joint

Director at the earliest. The submission of respondent no. 4 and his

proposal was made known to the Information Officer and the first

appeal was disposed of. Being aggrieved by the said order, the

respondent no. 4 submitted an appeal before the State Information

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Commission. It was the grievance of the respondent no. 4 that the

information provided to him was misleading as the information was

not provided to him. Now this particular stand itself is self

contradictory. If the respondent no. 4 was submitting that

information provided to him was misleading, then it cannot be

accepted that the information was not at all provided to him. Be

that as it may, the learned State Information Commissioner heard

the respondent no. 4. The learned State Information Commissioner

observed that it was the grievance of the respondent no. 4 that due to

delay in the office of the respondent nos. 2 and 3, he received the

amount belatedly, as such, it resulted in financial loss to the

respondent no. 4. The learned State Information Commissioner then

observed that the Information Officer and the first appellate authority

provided the information to the respondent no. 4 in time and the

delay in receiving the amount was because of certain procedural

difficulties. The State Information Commissioner then by observing

that as there was a delay at the level of the petitioner-society, the

information was not provided to the respondent no. 4. Then the

State Information Commissioner arrived at a conclusion that the

petitioner-society is responsible for the delay caused in releasing the

provident fund amount to the respondent no. 4 and further passed the

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order of imposing costs in the nature of compensation at the rate of

Rs. 10,000/- on the petitioner-society.

6. Shri Dutonde, learned counsel for the petitioner

vehemently submitted that the State Information Commissioner

grossly erred in imposing the costs/compensation on the petitioner on

two counts. Firstly, no opportunity of being heard was granted to the

petitioner-society before passing the order of grant of compensation

to the respondent no. 4 and secondly, the State Information

Commissioner failed to appreciate that the petitioner-society cannot

be treated as the public authority under the provisions of the Right to

Information Act and resultantly, the State Information Commissioner

could not have passed the order of imposing costs/compensation.

Shri Dutonde, learned counsel in support of his submissions placed

reliance on the judgment of this Court reported in 2009(4) Mh.L.J.

802 in the matter of Bhaskarrao Shankarrao Kulkarni Vs. State

Information Commissioner, Nagpur.

7. The respondent nos. 2 and 3 by filing reply submit that

there was a delay caused at the instance of the petitioner-society and

support the order impugned in the petition. Perusal of the reply filed

on behalf of the respondent nos. 2 and 3 shows that the proposal

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submitted by the petitioner-society was scrutinized and certain

objections were raised on 18-1-2014 and the petitioner-society was

communicated about these objections by communication dated

18-1-2014. It is further submitted that after a period of three months,

petitioner-society complied the objections and resubmitted the

proposal on 29-4-2014. On receiving the said proposal, the Joint

Director, Regional Office, Amravati approved the proposal and the

respondent no. 4 was given a cheque of Rs. 5,48,008/- including

interest up to 31-3-2014. It is submitted in the reply that the

respondent no. 4 again claimed interest from 1-4-2014 to 31-7-2014

and that claim was rejected by the Accounts Officer from the office of

the Regional Office, Amravati vide letter dated 14-11-2014. Thus,

perusal of these facts shows that the petitioner-society resubmitted the

proposal in the month of April, 2014 and the proposal was approved

and the amount was released in favour of the respondent no. 4

including the interest up to 31-3-2014. The respondent no. 4 was

claiming interest from the month of April, 2014 and till 31-7-2014.

The claim was pending before the Accounts Officer and it was

rejected and the same was communicated by a communication

dated 14-11-2014. Thus, there is some substance in the submission of

learned counsel Shri Dutonde for the petitioner that there was no

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delay caused at the level of the petitioner-society and delay on which

the respondent no. 4 was having grievance was at the level of the

office of the Accounts Officer. It is not necessary to go into all these

details. Suffice it to say that the basic ground raised in challenge to

the order impugned is of failure to observe the principle of natural

justice and the other ground is the petitioner-society being not the

public authority, the State Information Commissioner ought not to

have imposed the costs in view of the provisions of the Right to

Information Act. On perusal of the material placed on record, it

clearly reveals that the respondent no. 4 while submitting the

application seeking information or while presenting the appeal to the

first appellate authority or submitting the appeal before the State

Information Commissioner, nowhere made the petitioner-society

party to the proceedings. The order of the State Information

Commissioner further shows that before the State Information

Commissioner, parties were present, namely, the respondent no. 4 as

the appellant and the first appellate authority and the Information

Officer and the Deputy District Vocational Education and Training

Officer, Amravati as the respondents. The order impugned nowhere

refers to the factum of an opportunity granted to the petitioner-

society of hearing. Thus, only on hearing the respondent no. 4 as the

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appellant and the respondent nos. 2 and 3, the order is passed by

the State Information Commissioner thereby imposing costs of

Rs. 10,000/- on the petitioner-society as the compensation. Thus, this

fact clearly shows that no opportunity of hearing was granted to the

petitioner-society. As such, there is considerable merit in the

submissions of learned counsel for the petitioner that the order passed

by the State Information Commissioner is unsustainable on the ground

of not giving opportunity of hearing.

8. Insofar as second ground is concerned, it is not in dispute

that the petitioner is a society registered under the provisions of the

Bombay Public Trust Act, 1950 having registration no. PTR No. F-

242/Amravati. Shri Dutonde, learned counsel for the petitioner

placed reliance on the judgment of this Court in the case of

Bhaskarrao Shankarrao Kulkarni Vs. State Information

Commissioner, Nagpur (cited supra). It would be useful to refer to

said judgment. This Court while dealing with the provisions of the

Right to Information Act, 2005 as well as the Bombay Public Trust Act,

1950 observed that Section 4 of the Right to Information Act deals

with application of the Act to public authority. The definition of the

public authority as given in the Act is referred to and same reads as

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follow :

"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.

This Court then further observed that :

8. A bare reading of definition would make it clear that public trust does not fall in either of the categories.

It is not established or constituted under the Constitution of India, bye-law passed by the parliament, by any law of

the State Legislature or by Notification issued by any appropriate Government. It is also not a body substantively financed or controlled by the Government nor is it a NGO financed by the Government nor does the

trust receive any contribution or grant from the Government. It is not the contention of the State that the State provides any funds to the petitioner trust. It is, therefore, clear from the provisions of this definition that the Act cannot apply to the Public Trust. Any public

trust, therefore, is not at all covered by the definition of the public authority. It is only the public authority which is bound by the provisions of the Act. Any person seeking to establish that a particular public trust is covered by the provisions of the Right to Information Act will have to first prove that it is a public trust created by Government or Parliament or is substantively financed by the government. Until that is done, it must be held to be falling outside the scope of the Right to

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Information Act. If any person interested in the information of the trust, he can definitely apply to the

Charity Commissioner under the provisions of the Public Trust Act to have such information, which the Charity Commissioner may deem fit to be provided. But as far as Right to Information Act is concerned, there is no need

for any public trust to appoint any Information Officer and to entertain any such application under the Right to Information Act. In the circumstances, the petition has to be allowed. Order passed by both the authorities are set aside and quashed. Petition is allowed. Rule is made

absolute.

Thus, on the second ground also, there is merit in the submission of

learned counsel for the petitioner. Considering all these aspects, in my

opinion, the order passed by the learned State Information

Commissioner and impugned in the petition is clearly untenable and

unsustainable. In the result, the writ petition is allowed. The order

impugned in the petition passed by the State Information

Commissioner is quashed and set aside.

Rule is made absolute in aforesaid terms.

JUDGE

wasnik

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