SCA/16073/2007 1/61 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 16073 of 2007 With SPECIAL CIVIL APPLICATION No. 17067 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE DN PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= RELIANCE INDUSTRIES LIMITED - Petitioner Versus GUJARAT STATE INFORMATION COMMISSION & 4 - Respondents ========================================================= Appearance in Special Civil Application No.16073 of 2007: MR MIHIR THAKORE, SENIOR COUNSEL WITH MR DC DAVE for the Petitioner. MR NV ANJARIA for Respondent No.1. MR MAULIK NANAVATI, ASSTT.GOVERNMENT PLEADER for Respondent Nos.2 – 4. MR SB VAKIL, SENIOR COUNSEL WITH MR NAVIN K PAHWA for Respondent No.5. Appearance in Special Civil Application No.17067 of 2007: MR MIHIR THAKORE, SENIOR COUNSEL WITH MR DC DAVE for the Petitioner. MR NV ANJARIA for Respondent No.1. MS TANUJA N. KACHCHHI, ASSTT.GOVERNMENT PLEADER for Respondent Nos.1 – 6. MR SB VAKIL, SENIOR COUNSEL WITH MR NAVIN K PAHWA for Respondent No.7. ========================================================= SCA/16073/2007 2/61 JUDGMENT CORAM : HONOURABLE MR.JUSTICE DN PATEL Date : 16/08/2007 ORAL JUDGMENT Rule. Learned counsel for the respective parties waive service of notice of Rule on behalf of the respondents. Important issues have been raised for the adjudication by this Court, under the Right to Information Act,2005, viz:- [I] Whether the third party is entitled to get, written notice, of request of applicant (who is seeking information), so as :- (i) to allow/ permit the third party to treat the information (relating to or supplied by the third party) as confidential, if so far not treated as confidential; and (ii) to oppose the disclosure of such information i.e. information relating to or supplied by the third party and has been treated as confidential by the third party under Section 11(1) to be read with Section 7(7) of the Act,2005. SCA/16073/2007 3/61 JUDGMENT [II] Whether the third party is entitled to get an opportunity of personal hearing before disclosure of information relating to or supplied by the third party and has been treated as confidential by the third party under Section 11(1) to be read with Section 7(7) of the Act,2005. [III] Whether Public Information Officer should pass speaking order when he discloses information relating to or supplied by the third party and has been treated as confidential by the third party? [IV] What satisfaction must be arrived at prior to the information relating to or supplied by third party and has been treated as confidential by that third party is disclosed? [V] As right of First Appeal as well as Second Appeal is given to third party under Section 19(2) and 19(3), Whether upon request by third party, Public Information Officer should stay his order, giving information about third party at least, till appeal period is over, as like air or smell, information once disclosed, it will spread over, without there being further restrictions, and evenif third party succeeds in First Appeal/Second SCA/16073/2007 4/61 JUDGMENT Appeal, it cannot be gathered back or cannot be ordered to be returned. The aforesaid petitions have been preferred seeking a writ of mandamus, or any other appropriate writ, order or direction for quashing and setting aside the order dated 31st January,2007 passed by respondent No.1 i.e. Gujarat State Information Commission (Annexure “C” to the memo of the petition) as well as the order dated 9th March,2007 passed by respondent No.2 i.e Labour Commissioner and Appellate Authority (Annexure “F” to the memo of the petition) under the Right to Information Act,2005 (hereinafter referred to as “the Act,2005”) as well as the communication dated 9th March,2007 issued by respondent No.4 i.e. Public Information Officer (Annexure “G” to the memo of the petition) and also for a writ, order or direction for commanding respondent Nos.1, 2 and 4 for recalling of information supplied to the original applicant – Rasiklal Mardia and for a direction upon the original applicant – Rasiklal Mardia, not to use such information for any purpose whatsoever and for a writ of prohibition or any other appropriate writ, order or direction restraining the respondent authorities from further proceedings with the complaint of the original applicant i.e. Rasiklal Mardia under Section 18 of the SCA/16073/2007 5/61 JUDGMENT Act,2005 being Complaint No.541/06-07 and for a writ of mandamus or any other appropriate writ, order or direction commanding respondent Nos.1 to 6 in Special Civil Application No.17076 of 2007 not entertaining any application or proceeding at the instance of Mr.Rasiklal S. Mardia under the provisions of the Act,2005, so far as it is pertaining to the petitioner and its group companies. 2. Summarized Facts of the case: 2.1 Several applications (as per arguments of learned Senior Counsel for the petitioner, there are about 55 applications by now) have been preferred by the original applicant i.e. Rasiklal S. Mardia for getting information about the petitioner and its group Companies. One such application is dated 25th July,2006, which was preferred by the said applicant under Section 6 of the Act,2005 to respondent No.3, who transferred the said application to the respondent No.4 on 29th August,2006. He also preferred an application to respondent No.2 (first Appellate Authority) on 21st August,2006. Meanwhile, respondent No.3 wrote a letter dated 29th August,2006 to the original applicant that he may contact respondent No.4 for getting information and his application dated 25th July,2006 has been transferred to respondent No.4. Therefore, he preferred an application in the form of SCA/16073/2007 6/61 JUDGMENT Complaint under Section 18 of the Act,2005 to respondent No.1, which is second Appellate Authority. Respondent No.1 (Second Appellate Authority) remanded the case to respondent No.2, (who is first Appellate Authority) vide order dated 31st January,2007, wherein this respondent No.1 has already conveyed that whatever information demanded is to be given and, therefore, respondent No.2 has also directed Public Information Officer at Jamnagar that whatever information is demanded ought to be given. Thus, order dated 31st January,2007 was followed scrupulously by respondent No.2 and, thereafter by respondent No.1. Order was passed on 9th March,2007 by respondent No.2, who is sitting at Ahmedabad and direction was given to Public Information Officer, who is stationed at Jamnagar. Whatever information was sought for by the original applicant was supplied by Public Information Officer, Jamnagar (which is at distance approximately 350 kms.) on the very same day i.e. on 9th March,2007. Thus, order passed by respondent no.1 dated 31st January,2007 is under challenge as well as order passed on 9th March,2007 passed by respondent No.1, Ahmedabad is also under challenge and information supplied by Public Information Officer, Jamnagar on 9th March,2007 to the original applicant is also under challenge, which are at Annexure “C”, “F” and “G” respectively to the memo of the petitions. SCA/16073/2007 7/61 JUDGMENT 2.2 Informations demanded by the original applicant i.e. Rasiklal Mardia (in Special Civil Application No.16073 of 2007), are as under: “(1) You have recommended for Sales Tax exemption as per Government Policy for Reliance Petrochemicals Ltd. and your Department has confirmed that they have complied with terms and conditions of the Govt. as to local employment etc. Please provide complete copy, verification report done to the labourers working there with proof whatever is available with you and whether genuinely local people are employed is verified or not. (2) Any complaint received by you that they have not complied with the local people and false certificate is issued by your office. If yes copies of all the correspondence and copy of compliance received by you. (3) Year wise inspection done by your Dept. and confirmation that local people are continuously checked, confirmed their eligibility for sales tax exemption benefits and other benefits given to them for putting up the industry. (4) If they have not complied with the terms & conditions whatever action has been initiated by your Dept. and the recommendations made by your Dept. for action to be taken against the company for not complying with terms & conditions, entire copy of the correspondence and present status. (5) Several people died during the time of construction of Refinery. Status of that and copy confirming how many people died, action initiated by your Dept. and the present status of the cases and copy of the case papers.” (Emphasis supplied) Thus, the aforesaid informations were demanded SCA/16073/2007 8/61 JUDGMENT by the original applicant i.e. Rasiklal Mardia. These informations were pertaining to the petitioner Company and its group Companies. 2.3 It also appears from the facts of the case that never any of the authorities have given any notice nor the petitioner was heard before supplying the information relating to the petitioner. It is averred by the petitioner that there is business/commercial rivalry by the original applicant – Rasiklal Mardia with the petitioner Company. This allegation is substantiated by further affidavit filed by the petitioner. Reference of Civil Suit No.1431 of 2003 and Civil Suit No.3189 of 2002 has been given. These Suits are filed by the original applicant- Rasiklal Mardia [the applicant, who has applied for getting information under Section 6 of the Act,2005, who is referred hereinafter as “the original applicant”] for damages against ICICI Bank and in para 6(A) and 7 in the respective plaints, reference of petitioner company is also referred for pointing out commercial / business rivalry between the original applicant and the third party (petitioner). 2.4 It is also brought on record by way of further affidavit filed by the petitioner that the applicant is a defaulter and more than one dozen criminal cases have SCA/16073/2007 9/61 JUDGMENT been filed by Union of India through Rabi Barua – Officer, Serious Fraud and Investigation Office, Ministry of Company Affairs, New Delhi (in short “SFIO”) for various offence viz. for improper calculation of depreciation and signing false annual accounts, for failure to maintain liquid assets and for failure to repay the matured deposit amounts. Details of these one dozen offences are annexed at Annexure “J” to the affidavit filed by the petitioner on 25th July,2006. 2.5 Total 32 applications were preferred for getting information about the petitioner and its group companies and during the course of arguments, this figure increased upto 55 in numbers. In this background, these petitions have been preferred alleging violation of principles of natural justice by the respondent authorities and the information is obtained by the original applicant, who is having commercial rivalry with the petitioner. 3. Contentions advanced by Learned Senior Counsel for the petitioners : It is submitted by learned Senior Counsel Mr.Mihir Thakore with Mr. Dhaval Dave for the petitioners that there is commercial rivalry by the original applicant with the petitioner and its group companies and the Suits have been filed by him as stated hereinabove. SCA/16073/2007 10/61 JUDGMENT There is a reference of the petitioner company in the plaints of the Suits. The applicant is a defaulter and several criminal complaints have been filed against him by Union of India. Therefore, no such application may be entertained by the respondent authorities, at the instance of Mr.Rasiklal S. Mardia under the provisions of the Act,2005, so far as it is pertaining to the petitioner and its group companies. No opportunity of making a representation or written notice was given by the respondent authorities as required under Section 11(1) of the Act,2005 and no representation was considered by the Public Information Officer as per Section 7(7) of the Act,2005. No opportunity of personal hearing was afforded by the respondent authorities. Therefore, orders passed by respondent authorities are unilateral/arbitrary and violative of Article 14 of the Constitution of India. It is also submitted that as per Section 11(1) of the Act,2005, a written notice ought to be given to the petitioner to make a representation to the Public Information Officer, which was never given. The petitioner is a third party as defined under Section 2(n) of the Act,2005 and, therefore, the petitioner was required to be heard by the respondent authorities before imparting information relating to the petitioner and its group Companies. It is contended by learned counsel for the petitioners that no reasons were given by the SCA/16073/2007 11/61 JUDGMENT concerned respondent authority before supplying the information relating to the petitioner. Totally non- speaking orders have been passed. While passing order, reasons are required, if the information is supplied about the third party, under Section 7(1) of the Act,2005. The said order is an appealable order under Section 19(1) of the Act,2005. As per Section 11(2), even third party can prefer an application. Public Information Officer is a quasi judicial authority. It has also been contended by learned counsel for the petitioners that the words under Section 11(1) “............. has been treated as confidential by that third party ......” means, before imparting the information, a third party can treat the information (sought for by the original applicant) relating to third party or supplied by third party, as confidential. In the facts of the present case, a letter was written by the petitioners dated 18th May,2007 (Annexure “A” to Civil Application No.17067 of 2007) that information asked by the original applicant - Rasiklal S. Mardia about the petitioner and its group company is treated as confidential by the third party and request was also made to give an opportunity of being heard, to the petitioner, before disclosure of the information. A reply was given by Public Information Officer, on 30th May,2007 that the information asked by the original applicant was not pertaining to the petitioner and, SCA/16073/2007 12/61 JUDGMENT therefore, there is no need to give an opportunity of being heard to the petitioner. It is also stated by learned counsel for the petitioners that several applications were given to the concerned respondent authorities i.e. Principal Secretary, Industry and Mines Department as well as to the Chief Secretary, Government of Gujarat about the information relating to the petitioner, under the Right to Information Act, which was asked by Rasiklal Mardia, with a prayer that no such information should be given to Rasiklal Mardia about the petitioner and its group Companies, without giving an opportunity of being heard to the petitioner as contemplated under Section 11 of the Act,2005. A detailed list of such applications preferred by the original applicant is given along with Special Civil Application No.17067 of 2007, especially at Annexure “I” to the memo of the petition. It is contended by learned counsel for the petitioners that when arguments were over, the figure has crossed 55 in numbers. Thus, Rasiklal Mardia, because of commercial rivalry has applied under Section 6 of the Act,2005 for the information relating to the petitioner and its group Companies, which cannot be given to the original applicant, in breach of the provisions of the Act,2005. It is also vehemently submitted by learned counsel for the petitioners that the manner in which respondent No.1 has decided the matter vide order dated SCA/16073/2007 13/61 JUDGMENT 31st January,2007 requires to be scrutinized accurately. It appears that without any appeal preferred before Second Appellate Authority, respondent No.1 remanded the matter to respondent No.2, who is first Appellate Authority, with a clear direction in para-4 of the said order to provide information to the original applicant i.e. Rasiklal Mardia, free of charge and within 30 days from the date of order. This direction was given by Second Appellate Authority to respondent No.2, who is first Appellate Authority, who in turn, directed Public Information Officer at Jamnagar to supply the information, whatever are asked for, by the original applicant. The order was passed by the respondent No.2 at Ahmedabad on 9th March,2007 and direction was given to the Public Information Officer at Jamnagar. It is also contended by learned counsel for the petitioners that on the very same day, Public Information Officer, Jamnagar, which is at long distance from Ahmedabad who obeyed the order even without reading it and supplied the information to the original applicant i.e. Rasiklal Mardia on the very same day. Thus, method in which the orders passed by respondent Nos.1, 2 and 4 is such that, it requires a close scrutiny as the said orders are not only in defiance of the provisions of the Act,2005 but are in violation of principles of natural justice. It is also contended by learned counsel for the petitioners SCA/16073/2007 14/61 JUDGMENT that in the facts of the present case, none of the authorities i.e. neither respondent No.1 nor respondent No.2 nor respondent No.4 have arrived at a conclusion that public interest in disclosure outweighs harm or injury to the protected interest of third party. Nor a conclusion is arrived at that larger public interest warrants disclosure of such information. No such satisfaction is arrived at by any of the authorities and, therefore also, all three orders dated 31st January,2007 passed by respondent No.1; order dated 9th March,2007 passed by respondent No.2 and information supplied by respondent no.4 vide letter dated 9th March,2007 deserve to be quashed and set aside as they are in gross violation of the provisions of the Act,2005 and the principles of natural justice. As the information is already supplied in defiance of the provisions of the Act,2005, the same may be ordered to be recalled from the original applicant – Rasiklal Mardia or a direction may be given to the original applicant not to make use of said information for any purpose whatsoever. 4. Contentions advanced by learned counsel for the original applicant – Rasiklal Mardia : Learned counsel for the original applicant (Rasiklal Mardia) submitted that the petitioners have no locus standi to file these petitions. Nothing secret is SCA/16073/2007 15/61 JUDGMENT revealed. No reasons are required to be given for seeking information. Right to get information is an absolute right. Public Information Officer has no right to deny information on the ground of intention of the applicant. Only commercial competitor can best use the information to minimize corruption. No hearing is contemplated under Section 7 of the Act,2005. At the most, Public Information Officer has to consider a representation given under Section 11(1) of the Act,2005. Very rigid is time bound schedule given under the Act,2005 for supply of the information and, therefore, time is an essence and drastic are the consequences, if application seeking information is not disposed of within time bound schedule. Penalties are provided under Section 20 of the Act,2005 and, therefore, this dilutes the principles of natural justice. Even original applicant is not required to be heard under Section 7 of the Act,2005. It is a matter entirely between the original applicant and Public Information Officer. It is contended by learned counsel for the original applicant that the case is not covered under Section 11(1) of the Act,2005, and, therefore, there is no need to follow any procedure by the Public Information Officer prescribed under Section 7(7) of the Act,2005. There is also no need to hear third party, at the most, third party has a right to make a representation. Section 11 has been read and re-read by SCA/16073/2007 16/61 JUDGMENT learned counsels for both the parties and it is contended by learned counsel for the original applicant that this Section 11 is entirely based upon confidentiality. If the test of confidentiality fails, Section 11 is not applicable and if Section 11 is not applicable, there is no question of inviting third party to make a representation. Consequently, there is no need to hear third party. Public Information Officer has not to hold any inquiry, not to hear the original applicant, not to hear the third party and not to follow the Court trappings and, therefore, his function is administrative in nature. It is contended by learned counsel for the original applicant that if the petitioners are aggrieved by the order dated 9th March,2007 passed by Public Information Officer, Jamnagar, an appeal has been provided under Section 19 of the Act,2005 and, therefore, writ is not tenable at law. It is contended by learned counsel for original applicant that it is upon the satisfaction of the Public Information Officer, which entitles the third party for show cause notice. If Public Information Officer is of the opinion that the case of the third party is not covered under Section 11(1) of the Act,2005, there is no need to give any show cause notice to the third party. Only a trade and commercial secrets protected by law is excluded. In fact, the petitioner is not a third party. It is further submitted that second SCA/16073/2007 17/61 JUDGMENT petition being Special Civil Application No.17067 of 2007, is not tenable at law as the information has already been given, it has become infructuous and, therefore, no prayers can be granted. No petitions can be filed on behalf of the group Companies of the petitioner Company. Economically, they may be one but in the eye of law, they all are separate Companies and, separate entities and, therefore, both these petitions deserve to be dismissed. It is further stated that as the information has already been disclosed to the present petitioner and so, issuance of writ is futile and, therefore, petitions may not be entertained by this Court. 5. Contentions advanced by learned counsel for respondent No.1 – Gujarat State Information Commission : Learned counsel for respondent No.1 - Gujarat State Information Commission i.e. Second Appellate Authority, submitted that these petitions are futile writ petitions. There is no applicability of principles of natural justice for passing an order under Section 7 of the Act,2005. It is further submitted that Section 18 gives the width of the power, the area of power and the nature of power. Section 18(1) begins with words “Subject to the provisions of this Act, ......”. These words, SCA/16073/2007 18/61 JUDGMENT enlarges, the scope of Section 18 of the Act,2005. Section 19 of the Act,2005 pertains to appeal. Therefore, Section 18, 19 and 20 are to be read together. Section 18 is for the complaint. Section 19 is for the appeals (First Appeal as well as Second Appeal) and Section 20 is for the penalty. It is further submitted that right to get information has travelled beyond the public authorities. It can go to the private authorities or to the Government authorities. He has also narrated the words used in Section 11(1) of the Act,2005 that “........... has been treated as confidential by that third party” and pointed out that though it is in continuous present tense. These words by themselves are not permitting the subsequent intention of the third party to treat the said information as a confidential. It is vehemently submitted that respondent No.1 while exercising powers under Section 18 of the Act,2005, is not supposed to give hearing to the third party and, therefore, the order passed on 31st January,2007 is true, correct and in consonance with the facts of the case. He has also relied upon “no prejudice” theory and pointed out that by giving information, no prejudice is going to cause to the petitioner and, therefore, hearing is an empty formality. SCA/16073/2007 19/61 JUDGMENT R E A S O N S : 6. I have heard the learned counsels for both the sides, who have read and re-read the following relevant provisions of The Right to Information Act,2005 as well as the Gujarat Right to Information Rules,2005, are as under : Sections 2(n), 7(1), 7(7), 8(d) and 8(j) and 11(1), (2), (3) and (4) and Section 19 as well as Rule 6 of the Gujarat Right to Information Rules,2005, read as under: Section 2(n) “third party” means a person other than the citizen making a request for information and includes a public authority.” Section 7. Disposal of request. - (1) subject to the proviso to sub-section (2) of section 5 or the proviso to sub-section (3) of Section 6,