Mr. Sundeep Goyal Director vs High Court Of Calcutta (As) on 29 September, 2010

                    CENTRAL INFORMATION COMMISSION
            Appeal No. CIC/PA/A/2009/0005, 06 & 07 dated 30-12-2009
               Right to Information Act 2005 - Section 19 (3)

Appellant:          Shri Sundeep Goyal;
Respondent:         Calcutta High Court, Appeals Side
                                                     Appeal Heard: 17.9.2010
                                              Decision Announced: 29.9.2010


FACTS

These are three appeals moved by Shri Sundeep Goyal, Director, Goyal
Pvt. Ltd. Ballygunge Chambers, Kolkata with regard to information supplied by
the PIO, Calcutta High Court, Kolkata. They stem from three requests of a
similar nature all submitted on 5.2.2009 and have, therefore, been clubbed
together for hearing.

File No. CIC/PA/A/2009/0005
In this case the information sought by Shri Sundeep Goyal is as follows:-
“Name and address of the person holding the position of “receiver”
in Calcutta High Court suit no. O.C.S. 255/1975, G.A. No. 3007 of
1999. (Central Bank of India vs. Khardah Co. Ltd)”

To this, he received a response dated 5.2.2009 i.e. the very date of
making the application informing him as follows:-

“The information asked for cannot be supplied as the matter being
subjudice the disclosure of information may constitute contempt of
court.”

Shri Sundeep Goyal then moved an appeal on 27.2.2009 pleading as
follows:-

“Aggrieved by the response received within prescribed period [5(1)

(b)]”

The grounds for this appeal are as below:-

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“However, the relevant provision (s) of the Right to Information Act,
2005, under which the said rejection has been presumably made,
have not been stipulated.”

On not receiving any orders on his first appeal Shri Sundeep Goyal has
moved his second appeal before us pleading as follows:-

“Various decisions by the CIC holding that ‘sub-judice’ is not a valid
ground for withholding information sought for under the RTI Act.”

File No. CIC/PA/A/2009/06
In this case the request of appellant Shri Sundeep Goyal was as follows:-
Amount of Monies held by the “Receiver” in Calcutta High Court
suit no. C.S. 255/1975 GA No. 3007 of 1999 (Central Bank of India
Vs Khardah Co. Ltd) giving detailed break-up of fixed deposits,
savings account balances, T.D.C. certificates and any other head/
item.”

The reply that he received dated 5.2.2009 was again as below:-
“The information asked for cannot be supplied, as the matter being
subjudice the disclosure of information may constitute contempt of
court.”

This case then followed an identical process with file no.
CIC/PA/A/2009/05 with an identical second appeal.

File No. CIC/PA/A/2009/07
Similarly Shri Sundeep Goyal’s request in this file was as below:-
Copy of orders passed in Calcutta High Court suit No. C.S.
255/1975 (Central Bank of India vs. Khardatt co. Ltd) in the
following courts:-

(a) Court no. 8 on July 3, 2006. (annexure 2)

(b) Court no. 18 on September 1, 2007 (annexure 2)

The response of 5.2.2009 was identical with the above two applications as
was the process appeal and the second appeal before us.

In response to our appeal notice High Court of Calcutta in letter of
30.8.2010 has submitted an exhaustive reply. To this, is attached an order of

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First Appellate Authority in all three cases dated 14.9.2009 in which the Appellate
Authority has held as follow:-

“I have carefully considered the three Appeals made by M/s Goyal
Private Ltd, the Original Side Rules of the High court at Calcutta is
to be read along with Act 22 of 2005. As per the judgment of the
Hon’ble Supreme Court as laid down, Rules of Chartered High
Court has overriding power to the existing law as applicable in other
Courts. On the basis of the Principles laid down by the Hon’ble
Supreme Court, I refer to Chapter IV Rule 10 of the Original Side
Rules of the High Court at Calcutta, where it is specifically stated
inter alia, that search of records, copies and inspection at the
request of any person not a party to a suit or proceedings, shall be
allowed such inspection or copies of the pleadings, proceedings,
depositions, orders, decrees and other documents filed in a suit or
proceedings when the matter is pending before the Hon’ble Court,
subject to the order of the Judge. Without any specific order of the
Hon’ble Court as I could find, request for supply of information as
prayed for by the appellant tantamount to Contempt of Court, when
the matter is subjudice and pending for disposal before the Hon’ble
Court. I could also find from the records that the C.S. No. 255 of
1975, G.A. No. 3007 of 1999 (Central Bank of India -vs.- Khardah
Co. Ltd) is pending for disposal before this Hon’ble Court.”

In this context the PIO who is an Assistant Master and Referee of the High
Court has submitted as follows:-

“Furthermore, by a letter dated 15th September, 2009 bearing No. R
1936 the Appellate Authority had duly server a copy of the said
order dated 14th September, 2009 upon Goyals Private Limited. A
receipted copy of the letter dated 15th September, 2009 bearing the
signature of one Mr. D. Mondal for Goyals Private Limited who had
received the said letter dated 15th September, 2009 bearing No. R
1936 along with a copy of the order dated 14th September, 2009 at
the office of Goyals Private Limited being premises No. 53/1/3,
Hazra Road, Kolkata – 19 is also annexed hereto and marked with
the letter ‘D’.”

The PIO has further clarified as follows:-

“Rule 10 of Chapter IV of The Original Side Rules of The High
Court at Calcutta, 1914 states as follows:

‘The officer-in-charge of records shall, at the request of any person
not a party to a suit or proceedings, grant or allow search,
inspection or copies of all pleadings, proceeding, depositions,
orders, decrees and other documents filed in such suit or

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proceeding, or such parts thereof as he may require, on payment of
the proper fees and charges, except during the pendency of such
suit or proceeding when the granting of same shall be in the
discretion of the Registrar subject to the order of the Judge’. A copy
of the relevant pages from the Original Side Rules of the High Court
at Calcutta, 1914 is annexed hereto and marked with the letter ‘F’.”

PIO has, however, submitted that the required fees under Rule 9 of the
Calcutta High Court (Right to Information) Rules has not been paid. However, in
concluding his submission PIO has submitted as below:-

“It is further interesting to note that the Second Appeal from the
decision of the Appellate Authority on the Original Side of High
Court, Calcutta under Section 19(3) of the Right to Information act,
2005 lies with the State Information Commission and not the
Central Information Commission as both the Public Information
Officer and the Appellate Authority on the Original Side of High
Court, Calcutta have been notified under the State Government
Gazettes and not Central Government Gazette.”

The appeals were heard on 17-9-2010 through video-conferencing. The
following are present.

Appellant: at NIC Studio- Kolkata
Shri Sandeep Goyal
Respondents at NIC Studio- Kolkata
Shri Imran Hafiz, PIO, High Court of Kolkata

Appellant Shri Sundeep Goyal submitted that on his application he has
agreed to pay such fees as are necessary. However, the High Court has been
unable to confirm the manner in which such payment has to be made, nor
specified the amount of payment of fees nor could this matter be clarified to him
on visiting the High Court. He expressed his readiness to pay whatever fee is
necessary in the manner prescribed if he is intimated. To this, respondent Shri
Imran Hafiz, PIO replied that the fee was not at issue since the application had
nevertheless been accepted and replied to even though the fee was not received
even after the reply had been received by appellant Shri Sundeep Goyal. On the
question of the order of the Appellate Authority, High Court of Calcutta in appeal,
appellant Shri Sundeep Goyal has conceded that he had in fact received the

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order and subsequent to this had submitted that he had modified the appeal.
This modified appeal has not been received by this Commission.

Jurisdiction
On the question of the jurisdiction of the Central Information Commission
with reference to the submission of the PIO High Court of Calcutta in his letter of
30.8.2010, Shri Imran Hafiz submitted that to qualify as the “appropriate
government” exercising jurisdiction over a public authority this must be a public
authority ‘which is established, constituted, owned, controlled or substantially
financed by funds directly or indirectly by (i) Central Government, (ii) State
Government’. In this case he submitted the High Court of Calcutta was not
constituted by the Central Government or even under the Constitution of India
but by Her Majesty the Queen of England under Letters Patent dating from the
time of Queen Victoria. Under section 44 the powers of such legislation are
preserved and therefore, cannot be deemed to have been transcended by the
power of the Government of India. He further went on to submit that as per
Article 246 of the Constitution of India, which deals with the lawmaking powers of
Parliament, the High Court is not under the control of President of India or the
Government of India. On the other hand in response to a question from this
Commission PIO Shri Imran Hafiz conceded that if it is agreed that the High
Court of Calcutta, unlike other High Courts and Supreme Court of India had not
been established or constituted by the Central Government. It was also not
established or indeed constituted by the State Government, besides although the
staff of High Court is indeed financed by State Government, it was agreed that
indeed the salary of Justices which is the bulk of the finance of High Court is
borne from the consolidated fund of India. Moreover it is specified in List of I of
the Seventh Schedule, which is referred to in defining the powers of Parliament
under Article 246 of the Constitution, the following are included in the powers of
the Union:

“78. Constitution and organisation [(including vacations)] of the
High Courts except provisions as to officers and servants of

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High Courts; persons entitled to practice before the High
Courts.

79. Extension of the jurisdiction of a High Court to, and exclusion of
the jurisdiction of a High Court from, any Union territory.”

Shri Sundeep Goyal on his part has subsequently submitted a statement
through fax dated 20.9.2010 in which he has prayed as follows:

We pray for the following orders from this Honourable
Commission

1. To set aside (a) the three orders dated February 5, 2009,
issued by the PIO, and (b) Order No R-1936 dated September 15,
2009, issued by the Appellate Authority, namely Registrar, Original
Side, Calcutta High Court, and

2. To direct the PIO to immediately provide the required
information and to take all steps for procuring the same, so as to
fulfil the obligations of the Calcutta High Court under the RTI act in
respect of the three applications made by the Appellants.

He has grounded this plea on the following:

1. The Public Authority cannot take the plea of non-payment of
fees when they themselves were not in a position to accept
it.

2. The order of the Appellate Authority has violated the
principles of natural justice as it was issued without giving
the Appellant the opportunity of being heard.

3. The Public Authority has wrongly based its refusal to provide
information under Section 8(b) of the RTI Act, as ‘sub-judice’
is not a ground covered by this exemption.

4. The invocation of this own Rule 10 as an over-riding means
to withhold information strikes at the root of the RTI Act as
applicable to this Court. Since it is inconsistent with the
provisions of the RTI Act, under Section 22 of the Act, it
should not be allowed to stand in the way of providing
information as provided in the RTI Act.

5. In any case the said Rule 10 does not apply to two out of
three application of the Appellant.

DECISION NOTICE:

Right to Information Act, 2005 was enacted by the Parliament and
preamble of the Act says that it is for setting out a 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 the working of

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every public authority, the Constitution of Central Information Commission and
State Information Commission and for matters connected therewith or incidental
thereto.

Section 2 of the Act contains ‘definitions’ and starts with:-

In this Act, unless the contest otherwise requires:-

(a) “appropriate government” means in relation to a public
authority which is established, constituted, owned controlled or
substantially financed by funds provided directly or indirectly-

(i) by the Central Government or the union
territory administration, the Central Government;

                       (ii)    by the State Government, the State
                       Government.

The Act has defined the jurisdiction as per the Constitution of Public
Authorities. In case Public authorities are established, constituted, owned,
controlled or substantially financed by the Central Government then the
jurisdiction to hear appeals and complaints is of the Central Information
Commission.

As per Article 366(14) of the Constitution of India, “High Court” means any
court which is deemed for the purposes of this Constitution to be a High Court for
any state and includes-

(a) any court in the territory of India, constituted or reconstituted
under this Constitution as a High Court, and

(b) any other court in the territory of India which may be
declared by the Parliament by Law to be a High Court for all
or any of the purposes of this Constitution.

Similarly, entry 78 of the List I of Schedule VII talks about Constitution and
organization (including vacation) of the High Courts except provisions as to
officers and servants of High Courts; persons entitled to practice before the High
Court. D D Basu’s Shorter Constitution of India, 38th Edition at page 1757 states
“by the present entry, the union is given exclusive power over the constitution
and organization of the High Courts. By Articles 216-217, the power of
appointment of the High Court Judges has invested in the President. The power

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over the constitution of the High Courts is given to the Parliament for the sake of
uniformity.”

The reading of the Constitutional Provisions and the Statutory Provisions
leads the Commission to draw the conclusion that the Central Information
Commission will have jurisdiction over the High Courts for the Purposes of Right
to Information Act. The various other High Courts in the Country like P & H High
Court, Delhi High court; Madras High Court and High Court of Jharkhand have
appeared before the Commission.

Although respondent Shri Imran Hafiz has ably contended that it will not
be the Govt. of India or the Union or indeed the Constitution of India which
established or constituted the Calcutta High Court, quite clearly in the context of
the present when so called Majesties have ceased to exist and have been
succeeded within India or from outside by the Sovereign Democratic Republic of
India of which the Head of State is the President of the Union of India, any claim
of any public authority in India to have been established by an authority other
than those mentioned under the RTI Act cannot be accepted. We must,
therefore, conclude this issue with the ruling that the Calcutta High Court on
Appeals Side falls squarely within the jurisdiction of the Central Information
Commission in accordance with Section 2 (a) of the RTI Act. Even though the
Calcutta High Court (Right to Information Rules) 2006 may have been notified by
the State Government in the Kolkata Gazette the information sought is not with
regard to the working of these rules but with regard to the processes being
pursued by the Calcutta High Court in its jurisdictional side, which the Calcutta
High Court itself has acknowledged by Appellate Authority’s reference to Rule 10
of Chapter IV of the Original Side Rules of the High Court at Calcutta 1914,
which has a direct bearing on the functioning of the Hon’ble Justices of the
Calcutta High Court.

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Coming then to the prayer of applicant and his plea made on the basis of
the response received from Appellate Authority it was confirmed that the pending
case of Central Bank of India Vs. Kharda Co. Ltd. (Civil Suit No. 2555/1975
GA No. 3007 of 1999) because of the pendency of which information had been
refused by Appellate Authority, Registrar, Original Side, High Court of Calcutta in
his order of 14-9-2009 is still pending. Notwithstanding these rules, however, the
plea taken both by CPIO and Appellate Authority in all three cases is that the
disclosure will amount to contempt of court and, therefore, subject to exemption
u/s 8 (1) (b). This section reads as follows:

“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;”

In the present case Rule 10 of the Kolkata High Court (Jurisdictional
Limits) Act 1919 reads as follows:

10. Search of records, copies, Inspection by non-party – The officer-in-

charge of records shall, at the request of any person not a party to a
suit or proceedings, grant or allow search, inspection or copies of all
pleadings, proceeding, depositions, orders, decrees and other
documents filed in such suit or proceeding, or such parts thereof as he
may require, on payment of the proper fees and charges, except
during the pendency of such suit or proceeding when the granting of
same shall be in the discretion of the Registrar subject to the order
of the Judge.1

This rule does not debar disclosure of such information in the manner
prescribed, as emphasized by us in the above quote. Clearly then this must be
read together with Section 8 (1) (h) of the RTI Act which in turn reads as below.

“information which would impede the process of investigation or
apprehension or prosecution of offenders”.

Clearly then the Rules of the High Court of Calcutta (1914) on the Original
Side passed under the Letters Patent 1865 and Kolkata High Court
(Jurisdictional Limits) Act 1919, already protects the information from such
disclosure by making this subject to the order of the Judge. However, as part of
the procedure for accessing such information it will no doubt be necessary to
1
Emphasis added

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make reference to such Judge as is provided for u/s 5 (4) of the Act. On the issue
of Sec 8(1) (h) we have a detailed ruling from the Delhi High Court in WP No.
3114/2007; Bhagat Singh vs. Chief Information Commissioner & Ors, in
which case Hon’ble Ravinder Bhat, J. has held as follows with specific regard to
Sec. 8(1) (h):

11. “The Universal Declaration of Human Rights, adopted by the
United Nations in 1948, assured by Article 19, everyone the right
“to seek, receive and impart information and ideas through any
media, regardless of frontiers”. In Secretary Ministry of Information
and Broadcasting, Govt. of India and others vs. Cricket Association
of Bengal and others (1995 (2) SCC 161) the Supreme Court
remarket about this right in the following terms:

“The right to freedom of speech and expression includes the
right to receive and impart information. For ensuring the free
speech right of the citizens of this country, it is necessary
that the citizens have the benefit of plurality of views and a
range of opinions on all public issues. A successful
democracy posits an “aware” citizenry. Diversity of opinions,
views, ideas and ideologies is essential to enable the citizen
to arrive at informed judgment on all issues touching them.”

This right to information, was explicitly held to be our fundamental
right under Article 19 (1) (a) of the Constitution of India for the first
time by Justice K. K. Mathew in the State of UP vs. Raj Narain,
(1975) (4) SCC 428. This view was followed by the Supreme Court
on a number of decisions and after public demand, the Right to
Information Act, 2005 was enacted and brought into force.

12. The Act is an effectuation of the Right to freedom of speech
and expression. In an increasingly knowledge based society,
information and access to information holds the key to resources,
benefits and distribution of powers. Information, more than any
other element, is of critical importance participatory democracy. By
one fell stroke, under the Act, the make of procedures and official
barriers that had previously impeded information, has been swept
aside. The citizen and information seekers have, subject to a few
exceptions, an overriding right to be given information on matters in
the possession of the state and public agencies that are covered by
the Act. As is reflected in its preambular paragraphs, the
enactment seeks to promote transparency, arrest corruption and to
hold the government’s and its instrumentalities accountable to the
governed. This spirit of the Act must be borne in mind while
construing the provisions contained therein.

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13. Access to information under Section 3 of the Act, is the rule
and exemptions under Section 8, the exception. Section 8 being a
restriction on this fundamental right, must therefore is to be strictly
construed. It should not be interpreted in manner as to shadow the
very right self. Under Section 8, exemption from releasing
information is granted if it would impede the process of
investigation process cannot be a ground for refusal of the
information, the authority withholding information must show
satisfactory reasons as to why the release of such information
would hamper the investigation process. Such reasons should be
germane, and the opinion of the process being hampered should
be reasonable and based on some material. Sans this
consideration, section 8(1) (h) and other such provisions would
become the haven for dodging demands for information.

14. A rights based enactment is akin to a welfare measure, like
the Act, should receive a liberal interpretation. The contextual
background and history of the Act is such that the exemptions,
outlined in Section 8, relieving the authorities from the obligation to
provide information, constitute restrictions on the exercise of the
rights provided by it. Therefore, such exemption provisions have to
be construed in their terms, there is some authority supporting this
view (See Nathi Devi vs. Radha Devi Gupta 2005 (2) SCC201, B.
R. Kapoor vs. State of Tamil Nadu 2001 (7) SCC 231 and V.
Tulasamma vs. Sesha Reddy 1977 (3) SCC 99). Adopting a
different approach would result in narrowing the rights and
approving a judicially mandated class of restrictions on the rights
under the Act, which is unwarranted.”

15. As to the issue of whether the investigation has been complete
or not, I think that WP (C) No.3114/07 10 of 11 the authorities have
not applied their mind about the nature of information sought. As is
submitted by the Petitioner, he merely seeks access to the
preliminary reports investigation pursuant to which notices under
Sections 131, 143(2), 148 of the Income Tax have been issued and
not as to the outcome of the investigation and reassessment
carried on by the Assessing Officer. As held in the preceding part
of the judgment, without a disclosure as to how the
investigation process would be hampered by sharing the
materials collected till the notices were issued to the
assessee, the respondents could not have rejected the request
for granting information2. The CIC, even after overruling the
objection, should not have imposed the condition that information
could be disclosed only after recovery was made.”

2

Underlined by us as relevant to present appeals.

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From the above, it will be seen that the interpretation given to Rule 10 of
the above Rules in the manner done by CPIO & Appellate Authority of the
Calcutta High Court in their orders of 5-2-2009 and 14-9-2009 is inconsistent with
the dimensions of the application of exemption under sub Section (h) of Section 8
(1) of the RTI Act, even if it is conceded that the Rule itself is not so. It is not
acceptable that because the application has not obtained the orders of the
Judge, the application is to be rejected. It is the responsibility of the PIO to make
the necessary reference. The order of appellate Authority of 14-9-2009 is,
therefore, set aside. The information sought by appellant Shri Sandeep Goyal in
all the three cases will now be supplied to him in accordance with Rules of the
High Court of Calcutta (1914) on the Original Side, but since these were not
supplied within the time limit mandated by the Act, they will be provided free of
cost as per Sec. 7 (6) within 15 working days of the date of receipt of this
Decision Notice. All three appeals are accordingly allowed. There will be no cost

Reserved in the hearing, this Decision is announced on this twenty-ninth
day of September 2010 in open chambers. Notice of this decision be given free
of cost to the parties.

(Wajahat Habibullah)
Chief Information Commissioner
29-9-2010

Authenticated true copy. Additional copies of orders shall be supplied against
application and payment of the charges prescribed under the Act to the CPIO of
this Commission.

(Pankaj K.P. Shreyaskar)
Joint Registrar
29-9-2010

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