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Ramakant Deuri v. Arunachal Pradesh Information Commission And Ors

Ramakant Deuri v. Arunachal Pradesh Information Commission And Ors

(High Court Of Gauhati)

WP(C) 260/2016 | 05-01-2022

Nani Tagia, J.

1. Heard Mr. P.K. Tiwari, learned Senior Counsel assisted by Mr. K. Sexana, learned counsel for the petitioner. Also heard Mr. R. Saikia, learned standing counsel for the State Information Commission representing respondent nos. 1 & 2 and Mr. U. Deka, learned counsel for the respondent no. 3.

2. This writ petition is directed against the order, dated 09.05.2015, passed by the Information Commissioner, Arunachal Pradesh, APIC, Itanagar in Appeal No. APIC-01/2016, whereby the petitioner, the PIO (Public Information Officer)-Cum- Chief Conservator of Forest, Southern Arunachal Circle, Department of Environment and Forests, Deomali, district Tirap has been directed to furnish photo copy of the answer scripts of written test (all subject) of all candidates in a recruitment conducted by the department of forest for the post(s) of UDC.

3. The facts leading to filing of the present writ petition, briefly stated, are as under:

The respondent no. 3 had sought for as many as 9 information from the PIO (Public Information Officer)-Cum- Chief Conservator of Forest, Southern Arunachal Circle, Department of Environment and Forests, Deomali including photo copy of answer script of written test (all subject) in respect of all candidates who qualified in the written test conducted by the Department of Forest for the Post(s) of UDC, vide her application dated 14.09.2015. The petitioner herein, the PIO-cum-Chief Conservator of Forest, Deomali by his letter, dated 19.10.2015, had furnished all the information sought for by the respondent No. 3 except photo copy of the answer script of other candidates, stating it not to be permissible under the law. Against the denial to supply the answer script of other candidates by the aforesaid order, dated 19.10.2015, issued by the PIO-cum-Chief Conservator of Forest, Deomali, the respondent no. 3 had preferred an appeal before the First Appellate Authority under the Right to Information Act, 2005. The First Appellate Authority, vide order, dated 07.12.2015, dismissed the appeal filed by the respondent no. 3. Against the dismissal order of the First Appellate Authority, dated 07.12.2015, the respondent no. 3 had preferred an appeal under Section 19 of the Right to Information Act, 2005, to the APIC which was disposed of by the Information Commissioner, vide order, dated 09.05.2016, directing the petitioner/the PIO-cum-Chief Conservator of Forest, Southern Arunachal Circle, Deomali, to furnish the answer scripts of all the candidates who had participated in the recruitment conducted by the Department for the post(s) of UDC, with a further direction to the parties to the appeal, to appear before the Commission on 16.05.2016 at 10:30 am, and on their failure to comply with the order, might compel the Commission to impose penalty of Rs. 25,000/- (Rupees Twenty Five Thousand) under Section 20 of the RTI Act.

4. Assailing the correctness of the order, dated 09.05.2016, passed by the Information Commissioner directing the petitioner/the PIO-cum-Chief Conservator of Forest, Southern Arunachal Circle, Deomali, to furnish the answer scripts of all the candidates who had participated in the recruitment conducted by the Department for the post(s) of UDC, Mr. P.K. Tiwari, learned Senior counsel for the petitioner has submitted that the answer scripts of candidates other than the information seeker, is a third party information and for providing the third party information, a procedure prescribed under Section 11(1) of the RTI Act, 2005, is mandatory which envisage issuance of notice to the third party, whose information are sought for, to enable them for making submission whether the information sought for, should be furnished or not. The impugned order, dated 09.05.2016, passed by the APIC directing the petitioner/the PIO-cum-Chief Conservator of Forest, Southern Arunachal Circle, Deomali, to furnish the answer scripts of all the candidates who had participated in the recruitment conducted by the Department for the post(s) of UDC without following the procedure envisaged under Section 11(1) of the RTI Act, 2005, therefore, cannot be sustained and the same is liable to held illegal and accordingly, the same may be set aside and quashed, submits the learned Senior counsel.

5. In support of his contentions, Mr. Tiwari, learned Senior counsel, while referring to a decision of the Hon'ble Supreme Court rendered in R.K. Jain -vs-Union of India and another reported in (2013) 14 SSC 794, has referred to the paragraphs 14, 15 & 17.

6. Mr. R. Saikia, learned standing counsel for the State Information Commission representing respondents No. 1 & 2 and Mr. U. Deka, learned counsel for the respondent No. 3, does not dispute the correctness of submission made by Mr. Tiwari, learned Senior Counsel for the petitioner. However, both the learned counsels for the respondents submit that as the respondent no. 3 is entitled to a decision on his application seeking information by following the procedure prescribed under Section 11(1) of the RTI Act, 2005, the matter may be remitted back to the PIO-cum-Chief Conservator of Forest, Deomali, for fresh consideration of the application submitted by respondent No. 3 in accordance with the provisions of RTI Act.

7. The submissions advanced by the learned counsels representing the parties have been duly considered and the materials made available on record have been perused.

8. Section 11(1) of the RTI Act, 2005 which is relevant for the purpose of adjudication of this case, is quoted hereinbelow, for ready reference:

"..... 11. Third party information- (1) Where a Central Public Information Officer or the State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information.

Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party."

9. The provisions of Section 11(1) of the RTI Act, 2005, insofar as it deals with the information related to third party has been interpreted and explained in the decision of the Hon'ble Supreme Court in R.K. Jain (supra) wherein in paragraphs No. 14, 15 & 17, it has been held as under:

"....14. On the other hand Section 11 deals with third-party information and the circumstances when such information can be disclosed and the manner in which it is to be disclosed, if so decided by the competent authority. Under Section 11(1), if the information relates to or has been supplied by a third party and has been treated as confidential by the third party, and if the Central Public Information Officer or a State Public Information Officer intends to disclose any such information or record on a request made under the Act, in Such case after written notice to the third party of the request, the officer may disclose the information, if the third party agrees to such request or if the public interest in the disclosure outweighs in importance any possible harm or injury to the interest of such third party.

15. Section 11(1) is quoted hereunder:

"11. Third-party information - (1) Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information.

Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party."

17. The Delhi High Court in Arvind Kejriwal v. Central Public Information Officer considered Section 11 of the RTI Act. The Court held that once the information seeker is provided information relating to a third party, it is no longer in the private domain. Such information seeker can then disclose in turn such information to the whole world. Therefore, for providing the information the procedure outlined under Section 11(1) cannot be dispensed with."

10. On perusal of Section 11(1) of the RTI Act, 2005, as well as the decision rendered by the Hon'ble Apex Court in R.K. Jain (supra), it is noticed that whenever an information is sought for by an information seeker which pertains to an information of the third party, the Public Information Officer, within 5 days, is required to give written notice to the third party whose information has been sought for, by inviting the third party to make submission in writing or oral as to whether the information sought for, should be disclosed or not. Such submission of the third party is required to be kept in view by the Public Information Officer while taking a decision to disclose the information sought for of the third party. It is also held by the Hon'ble Supreme Court in R.K. Jain (supra), that the notice to the third party under Section 11(1) of the RTI Act, 2005, for the purpose of taking a decision by the PIO whether to disclose the information sought for or not, cannot be dispensed with.

11. In the instant case, while the respondent no. 3 had sought for an information pertaining to third party namely, the answer scripts of the candidates other than the information seeker in a recruitment conducted by the Department of Forest for the post(s) of UDC, the authorities namely, the PIO, First Appellate Authority or APIC had not issued notice to the third party whose information have been sought for by the respondent no. 3 before the respective orders were passed by the 3 (three) authorities, named above.

12. In view of the above, as the impugned order, dated 09.05.2016, has been passed by the APIC in Appeal No. APIC-01/2016 without following the mandate of Section 11(1) of the RTI, Act, 2005, the same cannot be sustained and accordingly, the impugned order, dated 09.05.2016, passed by the APIC, in Appeal No. APIC-01/2016, is hereby set aside and quashed. Consequent upon the setting aside and quashing of the order, dated 09.05.2016, passed by the APIC, in Appeal No. APIC-01/2016, the order, dated 07.12.2015, passed by the First Appellate Authority, vide No. FOR/RTI/2015/59/24560-61 as well as the letter, dated 19.10.2015, issued by the Chief Conservator of Forest-cum-Public Information Officer, Southern Arunachal Circle, Deomali, vide Memo no. SAC/RTI-63/12/2964 are also set aside and quashed.

13. As the information sought for by the respondent no. 3 is also required to be considered in the light of the relevant provisions of RTI Act, more particularly, the Section 11(1) of the Right to Information Act, 2005, the petitioner namely, the Chief Conservator of Forest-cum-Public Information Officer, Southern Arunachal Circle, Deomali is directed to consider afresh the application, dated 14.09.2015, submitted by the respondent no. 3, seeking information mentioned therein by following the mandate of Section 11(1) of the RTI Act, 2005, as indicated hereinabove, as well as other relevant provisions of the RTI Act, 2005.

14. Writ petition is allowed to the extent indicated above and stands disposed of accordingly.

Advocate List

  • Mr. P. K. Tiwari, Sr. Adv. K. Sexena A. R. Gogoi R. L. Thungon

  • R. Saikia, SC Information Commission, AP Mr. U. Deka

Bench
  • Hon'ble MR. JUSTICE NANI TAGIA
Eq Citations
  • 2022 (2) GLT 385
  • LQ/GauHC/2022/772
Head Note

A. Right to Information Act, 2005 — S. 11(1) — Third party information — Public Information Officer, within 5 days, is required to give written notice to the third party whose information has been sought for, by inviting the third party to make submission in writing or oral as to whether the information sought for, should be disclosed or not. Such submission of the third party is required to be kept in view by the Public Information Officer while taking a decision to disclose the information sought for of the third party — Notice to the third party under S. 11(1), for the purpose of taking a decision by the PIO whether to disclose the information sought for or not, cannot be dispensed with — As the impugned order, dt. 09.05.2016, has been passed by the APIC in Appeal No. APIC-01/2016 without following the mandate of S. 11(1), the same cannot be sustained and accordingly, the impugned order, dt. 09.05.2016, passed by the APIC, in Appeal No. APIC-01/2016, is hereby set aside and quashed — Consequent upon the setting aside and quashing of the order, dt. 09.05.2016, passed by the APIC, in Appeal No. APIC-01/2016, the order, dt. 07.12.2015, passed by the First Appellate Authority, vide No. FOR/RTI/2015/59/24560-61 as well as the letter, dt. 19.10.2015, issued by the Chief Conservator of Forest-cum-Public Information Officer, Southern Arunachal Circle, Deomali, vide Memo no. SAC/RTI-63/12/2964 are also set aside and quashed — As the information sought for by the respondent no. 3 is also required to be considered in the light of the relevant provisions of RTI Act, more particularly, S. 11(1) of the Right to Information Act, 2005, the petitioner namely, the Chief Conservator of Forest-cum-Public Information Officer, Southern Arunachal Circle, Deomali is directed to consider afresh the application, dt. 14.09.2015, submitted by the respondent no. 3, seeking information mentioned therein by following the mandate of S. 11(1) of the RTI Act, 2005, as indicated hereinabove, as well as other relevant provisions of the RTI Act, 2005 B. Administrative Law — Administrative Action/Jurisdiction/Discretion/Power — Judicial review/Jurisdiction — Exercise of — Writ petition allowed to the extent indicated above and stands disposed of accordingly — Right to Information Act, 2005