शिमला। कांग्रेस अध्यक्ष सोनिया गांधी के पुत्री व कांग्रेस नेता प्रियंका गांधी के शिमला के समीप छराबड़ा के समीप पर बने बंगले के लिए जमीन खरीद और धारा 118 के तहत दी गई मंजूरी के राज अब नहीं खुलेंगे। प्रियंका गांधी की ओर से हिमाचल हाईकोर्ट में दायर याचिका की सुनवाई करते हुए अदालत ने इस मामले में किसी भी तरह की सूचना देने पर रोक लगा दी है।
प्रदेश सूचना आयोग की दो सदस्यीय खंडपीठ ने पिछले सप्ताह हिमाचल की कांग्रेस सरकार को आरटीआई कार्यकर्ता देवाशीष भटटाचार्य को उनकी ओर से आरटीआई के तहत मांगी गई सूचना दस दिनों में देने के आदेश दिए थे। भटटाचार्य ने केवियट भीफाइल कर दियाहै। हाईकोर्ट ने उसे भी खारिज कर दिया अब मामले की अगली सुनवाई 7 अगस्त को होगी।प्रियंका गांधी ने सूचना आयोग के आदेश को हाईकोर्ट में चुनौती में दी थी ।
यहां पढ़े इस मामले पर हाईकोर्ट का पूरा आदेश-:
Allowed. The petition stands disposed of.
Caveat Petition No. 197 of 2015.
2. Since Ms. Ritta Thakur, Advocate has appeared on behalf of the caveators, the petition is rendered infructuous
and is disposed of as such.
CWP No. 3144 of 2015.
3. Notice. Learned Advocate General assisted by Mr.Anup Rattan, Additional Advocate General and Mr. Vikram
Thakur, Dy. Advocate General waives service of notice on behalf of respondents No. 1, 3 and 4, while Mr. Surinder Mohan, Advocate and Ms. Ritta Thakur, Advocates waive service of notice on behalf of respondents No. 2 and 5. Reply within four weeks. List on 7.8.2015. CMP No. 7354 of 2015.
4. Notice in the aforesaid terms. Reply, if any within four weeks.5. Heard. From the perusal of the records, it appears that respondent No. 5 filed an application dated 2.7.2014 under the Right to Information Act, 2005 (for short, the Act)before the respondent No.5 being the Public InformationOfficer. The information related to the property of the petitioner situated at village Chharabra, Tehsil and District Shimla.
6. Since the information sought for related to the private/ personal right of the petitioner, therefore, the Public Information Officer issued letter to Sh. Kehar Singh Khachi, who was the then special power of attorney of the petitioner, who responded vide reply dated 16.8.2014 clarifying that he was no longer the special power of attorney holder.
7. The respondent No. 4 instead of issuing notice to the petitioner, passed an order dated 25.8.2014, whereby he directed partial information to be given to respondent No.5. Against this order the respondent No. 5 filed a statutory appeal under section 19 before the first appellate authority.
The matter was remanded back to the Public Information Officer vide order dated 28.10.2014.
8. The petitioner vide letter dated 21.11.2014 submitted objections to the information sought for by respondent No.5.
However, the Public Information Officer vide order dated 28.11.2014 allowed the application of respondent No.5 andaccordingly directed the disclosure of information. This order was challenged in appeal before the first appellate authority i.e. Deputy Commissioner, Shimla, who vide orderdated 27.1.2015 allowed the appeal and quashed the order dated 28.10.2014.
9. During interregnum, the respondent No. 5 instituted a second appeal before the second respondent impugning therein the order dated 28.10.2014, but the petitioner was not impleaded as a party, and after gaining knowledge, she appeared and preferred her objections. Since the first appeal preferred by the petitioner had been allowed vide order dated27.1.2015, the respondent No. 5 amended his appeal to which the petitioner filed amended objections. The second respondent vide order dated 29.6.2015 allowed the appeal filed by the respondent, which has been assailed by way of the present petition.
10. The petitioner had objected to the information sought by 5 th respondent on a number of grounds including the ground as available to her under section 8(1)(g) of the Act,which reads as follows:-
“(g) information, the disclosure of which would endangerthe life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes; “
11. The petitioner in addition to contesting the caseorally had also submitted detailed written submissions,wherein it has been brought that the petitioner is an SPGProtectee under the Special Protection Group Act, 1988 (as amended in 1991, 1994 and 1999) and has been granted Special Protection being vulnerable to various threats both domestic and external. It was further averred that keeping in view the vulnerability of the petitioner to the security threats any document in custody of government of Himachal Pradesh pertaining to the petitioner would not only cause unwanted invasion of the privacy of third party to her family but the disclosure would also endanger the life and physical safety of the petitioner. Not only this , the petitioner had also enclosed the opinion of the Special Projection Group (Cabinet Secretary) dated 21.11.2014.
12. However, the second respondent appears to have cursorily dealt with the contention of the petitioner in thefollowing terms:
“Exemption from disclosure of information under section 8(1)(g) of the RTI Act is available to the Public Authorities involved in law enforcement. This exemption is not available to revenue authorities, who are involved in granting permission under the
H.P. Tenancy & Land Reforms Act….”
13. The scope of adjudicatory function of the authorities under the Act including the State Information Commission came up for consideration before the Hon’ble Supreme Court in Namit Sharma vs. Union of India (2013) 1 SCC 745, wherein it was clearly held that at the stage of second appeal i.e. Information Commission (Central/ State) performance of adjudicatory function, which was specifically oriented and akin to judicial determinative process and therefore, must reflect the application of mind and passing of reasoned order are inbuilt of the scheme of the Act. It was further held that besides resolving and balancing the conflict between the “right to privacy” and “right to information”, the Commission has to specifically determine and return a finding as to whether the case falls under any of the exceptions under section 8. It shall be apt to reproduce para-63, which reads thus:-
“63. Now, let us take an overview of the nature and content of the disputes arising before such Commission. Before the Public Information Officers, the controversy may fall within a narrow compass. But the question before the First Appellate Authority and particularly, the Information Commissioners (Members of the Commission) are of a very vital nature. The impact of
such adjudication, instead of being tilted towards administrative adjudication is specifically oriented and akin to the judicial determinative process. Application of mind and passing of reasoned orders are inbuilt into the scheme of the Act of 2005. In fact, the provisions of the Act are specific in that regard. While applying its mind, it has to dwell upon the issues of legal essenceand effect. Besides resolving and balancing the conflict between the ‘right to privacy’ and ‘right to information’, the Commission has to specifically determine and return a finding as to whether the case falls under any of the exceptions under Section 8 or relates to any of the organizations specified in the Second Schedule, to which the Act does not apply in terms of Section 24. Another significant adjudicatory function to be performed by the Commission is where interest of a third party is involved.
The legislative intent in this regard is demonstrated by the language of Section 11 of the Act of 2005. A third party is not only entitled to a notice, but is also entitled to hearing with a specific right to raise objections in relation to the disclosure of information. Such functions, by no stretch of imagination, can be termed as ‘administrative decision’ but are clearly in the domain of ‘judicial determination’ in accordance with the rule of law and provisions of the Act. Before we proceed to discuss this aspect in any further elaboration, let us examine the status of such Tribunal/Commissions and their functions.”
14. Judged in the light of the aforesaid observations, the reasoning of the Commission (supra) cannot prima facie be sustained for the simple reason that in case the disclosure of information was prohibited for the public authorities involved in the law enforcement then the same obviously would equally be prohibited even for the authorities constituted under theH.P. Tenancy and Land Reforms Act or other statutes.
15. Similar issue was considered by the Hon’ble Supreme Court in C.B.S.E. vs. Aditya Bandopadhyay (2011) SCC 497 and the ratio whereof was succinctly culled out in a subsequent judgement of the Hon’ble Supreme Court in Bihar Public Service Commission vs. Saiyed Hussain Abbas Rizwi & anr. (2012) 13 SCC 61, in the following manner:-
“26. In CBSE case (supra), this Court had clearly stated the view that an examiner who examines the answer sheets holds the relationship of principal and agent with the examining body. Applying the same principle, it has to be held that the interviewers hold the position of an “agent” vis-a-vis the examining body which is the “principal”. This relationship per se is not relatable
to any of the exemption clauses but there are some clauses of exemption, the foundation of which is not a particular relationship like fiduciary relationship. Clause 8(1)(g) can come into play with any kind of relationship. It requires that where the disclosure of information 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, the information need not be provided. The High Court has rejected the application of Section 8(1)(g) on the ground that it applies only with regard to law enforcement or
security purposes and does not have general application.This reasoning of the High Court is contrary to the very language of Section 8(1)(g). Section 8(1)(g) has variousclauses in itself.”
16. It is more than settled that access to information under section 3 of the Act is the rule and exemption under section 8 is the exception. Section 8 being restriction of thefundamental right must therefore, be strictly construed.
17. A perusal of the records reveals that the petitioner had claimed exemption from disclosure of information under section 8, more particularly, sub-section 1(g) thereof, it was therefore, incumbent upon the 2nd respondent to have dealt with this issue in detail. It may further be noted that the petitioner in no unequivocal terms had expressed apprehension of danger to her life and physical safety and had also expressed her fear regarding unwanted invasion of her privacy.
18. The second respondent appears to have been totally oblivious to the English common law maxim that says “every man’s house is his castle” and therefore there could be nothing more deleterious to a person’s physical happiness, health and safety than a calculated interference with his privacy. Needless to observe that this maxim is embedded in Article 21 of the Constitution of India itself.
19. In view of the aforesaid discussion, we are of the considered opinion that the petitioner has carved out a prima facie case for grant of interim relief. Accordingly, the operation and execution of orders passed by the second respondent on 29.6.2015 (Annexure P-21) and the earlier order passed by the 3 rd respondent on 28.11.2014(Annexure P-11) are ordered to be stayed.
( Tarlok Singh Chauhan ),
July 7, 2015. ( P.S. Rana ),
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