* THE HON’BLE MR JUSTICE V.V.S.RAO + WRIT PETITION No.16717 OF 2008 % Dated 04.12.2008 # The Public Information Officer/ Joint Secretary to Chief Commissioner of Land Administration, Nampally, Hyderabad. AND ANOTHER …PETITIONERS. and $ 1 A.P. Information Commissioner, (under Right to Information Act, 2005), Rep by its Chief Information Commissioner, HACA Bhavan, Hyderabad. AND OTHERS …RESPONDENTS. ! Counsel for petitioners: THE ADVOCATE GENERAL ^ Counsel for Respondent No.1: NONE APPEARED Counsel for Respondent No.2: MR.P.VENUGOPAL < GIST: > HEAD NOTE: ? Cases referred 1. (2002) 5 SCC 294 2. (2003) 4 SCC 399 = AIR 2003 SC 2363 3. (2006) 1 SCC 212 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE FOURTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION No.16717 of 2008 Between: 1 The Public Information Officer/ Joint Secretary to Chief Commissioner of Land Administration, Nampally, Hyderabad. 2 The Appellate Authority/Secretary, Chief Commissioner of Land Administration, Nampally, Hyderabad. ..... PETITIONERS AND 1 A.P. Information Commissioner, (under Right to Information Act, 2005), Rep by its Chief Information Commissioner, HACA Bhavan, Hyderabad. 2 Smt. Gousinnisa Baig, D/o. Late Nawab Khaja Moinuddin Khan, W/o. Syed Mehmood Samiullah, aged about 40 years, Occ : Household, r/o. 17-8-176 and 177, Chowni Nade-Ali Baig, Yakutpura, Hyderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue Writ of Certiorari, or any other appropriate writ, order or direction, calling for the records relating to the orders passed by the 1st respondent in Appeal No. 889/CIC/2008, dt.2-7-2008, directing the petitioners herein to furnish the copy of Muntakab No.3232 of 1304F categorizing the same as public document within a period of 30 days from the date of receipt of the order and quash the same. Counsel for the Petitioners: THE ADVOCATE GENERAL Counsel for the Respondent No.1: NONE APPEARED Counsel for the Respondent No.2: MR.P.VENUGOPAL The Court made the following: THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.16717 of 2008 ORDER: Whether denial of certified copy of Muntakhab[1] to a person on the ground that he/she is not a legal heir of Muntakhab holder is justified under the provisions of Right to Information Act, 2005 (RTI Act, for short)? This interesting question of considerable significance falls for consideration in this writ petition filed by two public authorities of Revenue Administration of Government of Andhra Pradesh, namely, the Public Information Officer/Joint Secretary to Chief Commissioner of Land Administration, Nampally, Hyderabad, and the Appellate Authority/Secretary, Chief Commissioner of Land Administration, Nampally, Hyderabad. Second respondent, Smt.Gousinnisa Begum (wrongly described as Smt.Gousinnisa Baig) filed an application before first respondent requesting for a copy of Muntakhab No.3232 of 1304F under RTI Act. By an order dated 28.6.2007, first petitioner refused to give certified copy on the ground that her name does not figure in Muntakhab nor she produced legal heir certificate issued by competent civil court establishing her succession. First petitioner also opined that Muntakhab is personal in nature, that it has no bearing of public interest and it need not be disclosed. Second respondent preferred appeal before second petitioner. The same was rejected by an order dated 23.1.2008 in Appeal No.C3/1782/2007, on the ground that Muntakhab is not a public document. Second respondent then preferred further appeal before Andhra Pradesh Information Commission constituted under RTI Act. By order dated 02.7.2008, Chief Information Commissioner directed petitioners to furnish copy of Muntakhab to second respondent. Second respondent filed counter affidavit. Her case is as follows. Sardar Begum in whose favour Muntakhab No.3232 of 1304F issued died in 1901. In succession case No.72 of 1344 Fasli (1934 A.D.) in file No.38/58 of 1339 Fasli-Medak, succession enquiry was conducted. Father of second respondent, Khaja Moinuddin Khan, was declared heir of Muntakhab holder. In this background, if petitioners insist on production of legal heir certificate, it would be highly impossible as Sardar Begum died in 1901. Muntakhab is a public document as defined under Section 74 of Indian Evidence Act, 1872 (Evidence Act, for short) and petitioners cannot deny supply of certified copy of Muntakhab. Learned Special Government Pleader in the office of Advocate General submits that RTI Act impliedly prohibits issue of judgments and decrees in personam. Muntakhab being a decree or succession order issued by competent authority in favour of a person is not a public document and if any person claiming certified copy has to produce legal heir certificate. Per contra, learned Counsel for second respondent raised following contentions. Writ petition is not maintainable at the instance of public authorities whose order is set aside. Petitioners did not suffer any legal injury and no principle of natural justice is violated for seeking redressal in extraordinary public law remedy under Article 226 of Constitution of India. Muntakhab is a document in respect of which petitioners cannot claim any privilege nor supply of copy is prohibited under Section 8 of RTI Act. To examine briefly history of RTI Act is a necessary initial step to consider the question. Article 19 of Universal Declaration of Human Rights, 1948 (UDHR) recognizes right to receive information, “every one has right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any area and regardless of frontiers.” There is no gainsaying that without participation of citizens, democracy is ineffective. To enable citizens to actively participate in governance information should be made available. Information regarding governmental activities, information about people whom they elected, information about bureaucrats, information about benefits which are conferred on citizens in various walks of life and information about governance itself. In Association for Democratic Reforms v Union of India[2] and People Union of Civil Liberties v Union of India[3], Supreme Court emphasized importance of freedom of information. In People Union of Civil Liberties (supra), Supreme Court observed as under. Freedom of speech and expression, just as the equality clause and the guarantee of life and liberty, has been very broadly construed by this Court right from the 1950s. It has been variously described as a “basic human right”, “a natural right” and the like. It embraces within its scope the freedom of propagation and interchange of ideas, dissemination of information, which would help formation of one’s opinion and viewpoint and debates on matters of public concern. The importance which our Constitution-makers wanted to attach to this freedom is evident from the fact that reasonable restrictions on that right could be placed by law only on the limited grounds specified in Article 19(2), not to speak of inherent limitations of the right. In due course of time, several species of rights unenumerated in Article 19(1)(a) have branched off from the genus of the article through the process of interpretation by this Apex Court. One such right is the “right to information”. The right of the citizens to obtain information on matters relating to public acts flows from the fundamental right enshrined in Article 19(1)(a). Equitable, fair, transparent and justice-ridden administration presupposes that persons be made aware of the Laws, Rules, Regulations and Administrative Guidelines by which their affairs will be governed. Thus right to information has a dynamic role in constitutional governance. All information available with the Government or of information to which the Government/public authorities have access has to be made available to citizens whenever they ask. But like all rights, right to information, which flows from Articles 19(1)(a), 14 and 21 of Constitution, is not at all times and always absolute right. Being a penumbral right to freedom or speech, right to information is subject to State’s reasonable restriction on exercise of such right. Interests of sovereignty, integrity, security of India, foreign relations, public order, decency or morality are some of the factors, which might encumber exercise of right to information. The conference of Chief Ministers on “Effective and Responsive Government” held on 24.5.1997 recognised the need to enact law on right to information. Government of India appointed a working group to examine feasibility and need for Right to Information Act to meet ends of open and responsive governance. The working group recommended for enactment of Freedom of Information Act. The issue was deliberated by group of Ministers in accordance with Article 19 of Constitution and Article 19 of UDHR. The Bill enacting Freedom of Information Act, 2002, was passed on 06.1.2003. But the same could not be brought into existence by notifying date of enforcement for various reasons. National Advisory Council deliberated on the issue of ensuring greater and more effective access to information in the background of Freedom of Information Act. They suggested important changes to be incorporated in Freedom of Information Act to ensure smoother and greater actions to information. In tune with Council’s suggestion, Government of India decided to make number of changes in the Law, inter alia, to include establishment of an appellate machinery with investigating powers, to review decisions of Public Information Officers, penal provisions for failure to provide information, provisions to ensure maximum disclosure and minimum exemptions, consistent with constitutional provisions, and effective mechanism for access to information. In that direction, Right to Information Act, 2005, was enacted repealing Freedom of Information Act, 2002. RTI Act came into force with effect from 21.6.2005. Preamble of RTI Act announces that new Act (RTI Act) is to provide for setting aside 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 working of public authority and to provide for hierarchy of Information Officers, RTI Act also seeks to harmonise conflicting public interests including efficient operations by the Government and revelation of information in actual practice required by citizen. RTI Act has six chapters (31 sections) and two schedules. Chapter-I contains short title and dictionary clause. The heart and soul of RTI Act is chapter-II containing Sections 3 to 11, which deal with citizens’ right to information and obligation of public authorities. Chapters-III, IV and V constitute Information Commissions at various levels and describe powers and functions of these Commissions. Miscellaneous provisions are included in Chapter-VI and Section 22 gives overriding effect to the provisions of RTI Act notwithstanding anything contained in Official Secrets Act, 1927, and any other Law for the time being in force or in any instrument having effected by virtue of any law. Section 23 deals with jurisdiction of Courts to entertain any suit, application or proceeding in respect of any order made under RTI Act. As this case does not involve any controversy with regard to constitution of State Information Commission, Central Information Commission etc., and exercise of power by these Commissions, it is not necessary to refer to those sections. However, it is important to notice provisions of Chapter-II. Section 2(f) of RTI Act defines "information" as to mean any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force. Section 3 of RTI Act confers on all citizens right to information. The term “record” as defined in Section 2(i) of RTI Act, include any document, manuscript and file, any microfilm, microfiche and facsimile copy of a document, any reproduction of image or images embodied in such microfilm (whether enlarged or not), and any other material produced by a computer or any other device. As per section 2(j) of RTI Act, "right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to inspection of work, documents, records; taking notes, extracts or certified copies of documents or records; taking certified samples of material; and/or obtaining information in any electronic form. Section 4(1)(a) of RTI Act casts a statutory duty on every public authority to maintain all records duly catalogued and to ensure that all records are appropriated to be computerized and connected to network so as to make them accessible. Every public authority is required to designate Central Public Information Officers or State Public Information Officers in all administrative units. These Officers shall deal with request from citizens seeking information and render reasonable assistance. Section 6 of RTI Act enables a person to request for obtaining information. Under Section 7 of RTI Act, Information Officer has to respond within thirty (30) days in default of which, it shall be deemed that information is refused. Even where access to record is required to be provided, Information Officer shall provide assistance. Section 11 of RTI Act contains procedure when information sought relates to a third party, which has been treated as confidential by that third party. In such a case, a notice shall have to be issued to third party for making a representation against disclosure whereupon Information Officer shall take a decision. When information is denied by Public Information Officer, the person can prefer an appeal to such officer, who is senior in the rank to State Information Officer. Even if there is resistance at the appellate stage, Section 18(1) (a) of RTI Act enables aggrieved person to prefer a complaint to State Information Commission. If the State Information Commission comes to the opinion that information was not furnished within the time specified under Section 7(1) of RTI Act or mala fide denied request for information, a fine of Rs.250/- (Rupees two hundred and fifty only) per day (till information is furnished) can be imposed. Sections 8, 9 and 10 of RTI Act are one group of provisions, which provide for exemption from disclosure of information and grounds for rejection to access in certain cases as well as method of applying principle of severability. Section 8(1) of RTI Act is relevant and reads as under. 8. (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,— (a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; (b) 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; (c) information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature; (d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; (e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information; (f) information received in confidence from foreign Government; (g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes; (h) information which would impede the process of investigation or apprehension or prosecution of offenders; (i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers: Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over: Provided further that those matters which come under the exemptions specified in this section shall not be disclosed; (j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. Parliament has expressed very clearly on information about which there is no obligation to give such information to any citizen. Even with regard to exemption material under Section 8(1) of RTI Act, as per Section 8(2) of RTI Act, if public interests in disclosure outweighs productive interests, public authority may allow access to information notwithstanding exemptions under Section 8(1) of RTI Act or Official Secrets Act. Section 9 of RTI Act prohibits giving information, which involves infringement of copy right. Under Section 9 of RTI Act, even with regard to exempted information, if a document contains information which is not exempt, public authority may decline to grant exempted information and allow access to other information, which is not exempted. The overview of RTI Act especially Sections 6, 7, 8 read with Sections 2(f) and 2(i) of RTI Act, leads to conclusion that endeavour of legislation is to harmonise conflicting public and private interests. If information is available with public authority, unless and until it is one of the categories mentioned in Section 8(1), there should not be any objection for furnishing information subject to procedural compliance under RTI Act. Even the information regarding private persons can also be made available after Section 11 of RTI Act is complied with. Theory of ‘implied bar’ does not apply to a Law, which is made to give full scope to fundamental rights. Section 3 of RTI Act, which confers on every citizen the right to information is manifestation of fundamental rights under Article 19(1)(a) of Constitution. Unless such a right is curtailed by Law made by competent Legislature, by executive constructions the purpose of Law cannot be defeated. Parliament has exempted only certain categories of documents as enumerated under Section 8 of RTI Act with regard to which there is no obligation to furnish information. Explicit exemption of documents under Section 8(1) of RTI Act conclusively presupposes that RTI Act does not impliedly bar furnishing of information with regard to any information as defined under Section 2(f) read with 2(i) of RTI Act. Next question is whether a Muntakhab can be given only to legal heir of such Muntakhab holder? Muntakhab is essentially a document with list of names with numbers of fields held by original grantee or his successors. A certificate issued by competent authority recognizing succession forms part of Muntakhab and some times by itself is a Muntakhab. When a document recognizes successors in title and such decision is based on enquiry essentially there is determination of rights. It is certainly not an order or judgment in personam[4]. It is not only between rivals staking claim to property mentioned in Muntakhab but declaration contained therein operates against entire world. In that sense, it is a judgment in rem[5]. In Satrucharla Vijaya Rama Raju v Nimmaka Jaya Raju[6], Supreme Court explained ‘judgment in rem’ as follows. Under the Evidence Act, Section 41 is said to incorporate the law on the subject. The judgment in rem is defined in English Law as “an adjudication pronounced (as its name indeed denotes) by the status, some particular subject-matter by a Tribunal having competent authority for that purpose.” Spencer Bower on Res judicata defines the term as one which “declares, defines or otherwise determines the status of a person or a thing, that is to say, the jural relation of the person or thing to the world generally.” A Muntakhab declaring the rights of successors and delineating respective shares of such successors is an order/judgment in rem. Even if it is a judgment in personam, a public authority in possession of such document is bound to give because under Section 2(f) of RTI Act, ‘information’ means any material in any form and includes inter alia information relating to any private body, which can have access by public authority. Copy of Muntakhab No.3232 of 1304F is in the custody of Chief Commissioner of Land Administration consequent to abolition of Board of Revenue which used to take care of matters pertaining to succession of the heirs of grantees, who are given land grants by sovereign. Whether it is a judgment in rem or judgment in personam in that sense makes no difference and even a third party who has no direct interest in Muntakhab who might have purchased property from heirs/successors of original grantee are also entitled to seek certified copy of Muntakhab. The matter can also be examined with reference to Section 74 of Evidence Act. Documents forming the Acts or records of the Acts of sovereign authority of official bodies and Tribunals and of public officers, Legislative, Judicial and Executive of any part of India and public records kept in any state of private documents or public documents. Muntakhab is certainly a public document and it cannot be treated as a private document. Under Section 123 of Evidence Act, the State can claim privilege from producing a document as evidence only when such evidence is derived from unpublished official records relating to State unless permission is obtained from Head of Department. A Muntakhab cannot be a privilege document. When Muntakhab is a public document, State cannot claim any privilege under Section 123 of Evidence Act and petitioners cannot refuse supply of Muntakhab asked by second respondent. As already concluded supra, one need not be legal heir for obtaining a copy of Muntakhab. Even if a Muntakhab is considered as privileged document under Section 74 read with 123 of Evidence Act, still public authority as defined under Section 2(h) of RTI Act cannot refuse. By reason of Section 22 of RTI Act, provisions of RTI Act shall have effect notwithstanding anything inconsistent therewith contained in any other law. It only means that even if there is a question of privilege involved, RTI Act compels furnishing of information unless and until furnishing of information is barred under Section 8(1) of RTI Act. It is not permissible to read implied prohibitions or invisible mandates in RTI Act. In the result, for the above reasons, writ petition fails and is accordingly dismissed without any order as to costs. _______________ (V.V.S.RAO,J) December 04, 2008. NOTE: L.R. Copy be marked. (By order) YS [1] Muntakhib (in Arabic) an abstract of the documents, in the older survey records system being a list of names, with the numbers of the fields held by each. (p.844 in THE LAW LEXICON, P.Ramanatha Aiyar, Reprint Edition 1993). Section 2(c) of Andhra Pradesh (Telangana Area) Atiyat Enquiries Act, 1952 defines “Muntakhabs and Vasikas” as documents issued by competent authorities as a result of Inam or succession enquiries held under the Dastoor-ul-Amal Inams or other Government Orders on the subject and issued by way of continuance or confirmation of Atiyat grants. [2] (2002) 5 SCC 294 [3] (2003) 4 SCC 399 = AIR 2003 SC 2363 [4] Judgment in personam: The judgment in personal is, in form as well as in substance, between the parties claiming the right, and that is so inter-parties appears by the record itself. (p.644, THE LAW LEXICON) [5] Judgment in rem is one pronounced upon status of some particular person or thing and it binds all persons. (P.644, THE LAW LEXICON) Judgment in rem: A ‘Judgment in rem’ is an adjudication pronounced upon the status of some particular subject-matter by a Tribunal having competent authority for that purpose. (P.644, THE LAW LEXICON) [6] (2006) 1 SCC 212