Sri. Shivaprasad M. S/O Late Mallaiah Vs Karnataka State Information Commission

SRI. SHIVAPRASAD M. S/O LATE MALLAIAH, AGED ABOUT: 49 YEARS, WORKING AS I/C ARTO AND PIO, AS DESIGNATED UNDER THE RTI ACT, KOGANOLLI/NIPPANI RTO CHECK POST, BELAGAVI DISTRICT.

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… PETITIONER

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(BY SRI. B. CHIDANANDA, ADVOCATE)

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AND:

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Digitally signed by PREMCHANDRA M R Location: HIGH COURT OF KARNATAKA

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KARNATAKA STATE INFORMATION COMMISSION, MAHITHI SOUDHA, DEVARAJ URS ROAD, OPPOSITE VIDANA SOUDHA, WEST GATE NO.2, BENGALURU-560 001, REPRESENTED BY SECRETARY.

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K. PRAKASHA REDDY S/O NOT KNOWN TO THE PETITIONER, AGED ABOUT: NOT KNOWN, R/AT: NO.183/1, 1^ST FLOOR, RAMANNA GARDEN, KODIGENAHALLI, BENGALURU MAIN ROD, YELAHANKA, BENGALURU-560 063.

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… RESPONDENTS

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(BY SRI. DAYANAND M. BANDI, ADVOCATE FOR R1; R2-SERVED AND UNREPRESENTED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, SEEKING CERTAIN RELIEFS.

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THIS WRIT PETITION IS LISTED FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, AN ORDER IS MADE AS UNDER:

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ORAL ORDER

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Sri.B.Chidananda, counsel for the petitioner, has

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appeared in person.

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An emergent notice was issued to the respondents. A perusal of the office note depicts that the second respondent is served and unrepresented. The second respondent has neither engaged the services of an advocate nor conducted the case as a party in person.

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The facts are quite simple and are stated as follows:

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It is stated that one K.Prakasha Reddy on 22.11.2017 applied under Section 6(1) of the Right to Information Act, 2005 (hereinafter referred to as ‘the Act’ for short), seeking details of the C.D copy of the recorded CCTV footage of inside and outside cameras fixed in the Check Posts – Nippani RTO Check Post and ARTO, Belagavi from 01.04.2016 to up to date. In response to the above RTI application, the petitioner working as ARTO and PIO issued an endorsement on 12.12.2017 stating

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that the office of the PIO does not have a recorded CD of CCTV footage. The endorsement was communicated to the applicant, but was returned as insufficient address. The applicant preferred a first appeal under Section 19(1) of the RTI Act, 2005 on 27.12.2017. During the pendency of the first appeal, the applicant preferred a second appeal under Section 19(3) of the Act before the Karnataka State Information Commission on 05.03.2018.

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The Karnataka State Information Commission registered

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the appeal, and notices were issued to the petitioner. The Commission passed the final order on 28.05.2018. This order is called into question in this Writ Petition on several grounds as set out in the memorandum of the Writ Petition.

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Counsel for the petitioner has urged several

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contentions.

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Counsel for the petitioner has placed reliance on the decision reported in CENTRAL BOARD OF SECONDARY EDUCATION AND ANOTHER VS. ADITYA BANDYOPADHYAY AND OTHERS reported in (2011) 8 SCC 497.

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Heard the arguments and perused the Writ papers

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with care.

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The following point arises for my consideration:

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Is the Commission justified in referring

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the matter to ACB for investigation under Section 19(8)(a) of the Right to Information Act 2005?

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The facts have been sufficiently stated and the same does not require reiteration.

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The whole controversy before me centered around the scope of Section 19(8)(a) of the Right to Information Act, 2005 and the obligation to provide information that is not available.

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Before I answer the point, let us quickly glance at the scope and object of the Act.

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The r ight to information provides a legal framework for citizens’ democratic right to access information under the control of public authorities. The basic object is to promote transparency and accountability in the functioning of every public authority.

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The Right to Information Act, 2005 has been probably the most discussed law of recent times. The RTI Act provides information to the public. It is a source that provides transparency and accountability in the working of public authorities. To maintain transparency, the word information is defined under Section 2(f) of the Right to Information Act, 2005. This section helps in determining which information can be provided to the public.

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“Section 2(f) defines “information” means any material in any form, including records, documents, memos, e-mails, opinions, advises, 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;”

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“Section 2(i) defines “record” includes—

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(a) any document, manuscript, and file;

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(b) any microfilm, microfiche, and facsimile copy of a document;

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(c) any reproduction of image or images embodied

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in such microfilm (whether enlarged or not); and

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(d) any other material produced by a computer or any other device;”

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“Section 2(j) defines “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—

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(i) inspection of work, documents, and records;

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(ii) taking notes, extracts, or certified copies of documents or records;

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(iii) taking certified samples of material;

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(iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes, or in any other electronic mode or through printouts where such information is stored in a computer or any other device.

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In this background, let me answer the points:

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The applicant is Sri.K.Prakasha Reddy. He sought the

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details of a CD copy of the recorded CCTV footage cameras

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fixed in Nippani RTO Check Post, Belagavi District. The dates are quite relevant. The applicant applied on 22.11.2017. He sought the recorded footage from 01.04.2016 up to date.

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Suffice it to note that the office of the Public Information Officer and Assistant Regional Transport Officer, Nippani RTO Check Post, Belagavi District received the application and it duly responded to the request made by the applicant by issuing an endorsement. It is pivotal to note that the PIO, on 12.12.2017, replied that the RTO office does not have a recorded CD of CC TV footage.

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In this case, the controversy is the non-furnishing of a CD of the CCTV footage. Hence, it is very much essential to know and understand the hardware capacity.

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As already noted, the applicant sought the recorded CCTV footage from 01.04.2016 in the month of November 2017. He is seeking one and a half year’s old recorded CCTV footage. As we have seen the definitions of information, record, and the right to information, no doubt a citizen is entitled to access information under the control of public authorities provided the information must be accessible and the officials concerned must

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possess the information that is sought for. The information sought should be easily accessible and in the electric format . In the present case, the information sought by the second respondent was not available.

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Next, let me consider the contention about Section 19(8)(a) of the Act.

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Sri.B.Chidananda., counsel in presenting his arguments, strenuously urged that referring the matter to ACB, Bengaluru for investigation is beyond the scope of Section 19(8)(a) of the Act.

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A good deal of argument was addressed about Section 19(8)(a) of the Act. Hence, extracting Section 19(8)(a) (i) to (vi) and (b) to (d) helps indicate the right approach.

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“19. Appeal.— xxxxxxxxxxx

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xxxxxxxxxx

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(8) In its decision, the Central Information Commission or State Information Commission, as the case may be, has the power to—

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(a) require the public authority to take any such steps as may be necessary to secure compliance with the provisions of this Act, including—

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(i) by providing access to information, if so requested, in a particular form;

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(ii) by appointing a Central Public Information Officer or State Public Information Officer, as the case may

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be;

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(iii) by publishing certain information or categories of information;

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(iv) by making necessary changes to its practices about the maintenance, management, and destruction of records;

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(v) by enhancing the provision of training on the right information for its officials;

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(vi) by providing it with an annual report in compliance with clause (b) of sub-section (1) of section 4;

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(b) require the public authority to compensate the complainant for any loss or other detriment suffered;

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(c) impose any of the penalties provided under this Act;

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(d) reject the application.

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The language employed is plain and clear. A bare perusal of the provision makes it very clear that the Commission has the power to require the public authority to take any such steps as may be necessary to secure compliance with the provisions of the Act including (i) to (vi).

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Suffice it to note that under the provisions of the RTI Act, 2005 only such information that is available and existing and held by the public authority or is under control of the public authority can be provided. The PIO is not supposed to create

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information that is not a part of the record, and PIO is not obliged to furnish information that is not accessible and available in his office. Hence, in my opinion, the referral of the matter to ACB is certainly beyond the scope of section 19(8)(a) of the Act. I may venture to say that the Commission has failed to have regard to relevant considerations and disregarded relevant matters. In my considered opinion, the order passed by the Commission is unsustainable in law. Moreover, the Anti Corruption Bureau is abolished as of today.

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The result is that the writ petition will be allowed. The writ of certiorari is ordered. The order dated 28.05.2018 passed by the Karnataka State Information Commission in KIC No.2603 APL 2018 vide Annexure-G is quashed.

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Resultantly, the Writ Petition is allowed.

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Sd/(JYOTI MULIMANI) JUDGE

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MRP,RH LIST NO.: 1 SL NO.: 48

Sri. Shivaprasad M. S/O Late Mallaiah v. Karnataka State Information Commission

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Sri. Shivaprasad M. S/O Late Mallaiah v. Karnataka State Information Commission

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