C. Manoj Kumar v. Kerala State Information Commission and others

WP(C) NO. 2291 OF 2010 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 17[TH] DAY OF OCTOBER 2022 / 25TH ASWINA, 1944 WP(C) NO. 2291 OF 2010** ## **PETITIONER/S:** C.MANOJ KUMAR, SECRETARY, KANNUR RURAL DEVELOPMENTAL SOCIETY, SREEKANDAPURAM,, THALIPARAMBA TALUK, KANNUR DISTRICT. BY ADVS. SRI.R.SURENDRAN SRI.M.C.BIJU ## **RESPONDENT/S:** 1 KERALA STATE INFORMATION COMMISSION THIRUVANANTHAPRUAM, REPRESENTED BY THE SECRETARY, KERALA STATE INFORMATION COMMISSION, THIRUVANANTHAPURAM -695039. 2 SRI.JOSHY M.GEORGE AGE AND FATHERS NAME NOT KNOWN MATTATHIRANICKAL,, NELLIKKUTTI P.O., PIN-670632,KANNUR DISTRICT. 3 THE MANAGING DIRECTOR KERALA HORTICULTURAL PRODUCTS DEVELOPMENT, CORPORATION (HORTICORP),UDAYAGIRI,, POOJAPPURA P.O., THIRUVANANTHAPURAM -695012. BY ADVS. SRI.GEORGE MECHERIL SRI.V.C.JAMES SRI.M.AJAY, SC, STATE INFORMATION COMMN WP(C) NO. 2291 OF 2010 2 ## **OTHER PRESENT:** SRI M AJAY, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 2291 OF 2010 3 ## **P.V.KUNHIKRISHNAN, J** ## **---------------------------------------** ## **W.P.(C) No.2291 of 2010** **-------------------------------------Dated this the 17[th] day of October, 2022** ## **JUDGMENT** The above writ petition is filed with following prayers : “a) Certiorari quashing all proceedings on the file of the first respondent in Complaint Petition No.1354(2)/2008/SIC File No.12711/SIC-Gen 2/2008 b) Certiorari quashing Exhibit P7 order as illegal and without authority. c) Declaration that the Kannur Rural Development Society, Sreekandapuram is not a Public Authority as defined in Sec.2(h) of the Right to Information Act and d) Any other relief that the Honourable Court may deem fit to grant in the circumstances of the case.” [SIC] 2. The petitioner is a Society registered under the Societies Registration Act, 1860. The 2[nd] respondent applied to the petitioner for information under the Right to Information Act. The petitioner did not furnish information to the 2[nd] respond for the reason that according to the petitioner it is not WP(C) NO. 2291 OF 2010 4 a public authority as defined under Sec.2 (h) of the Right to Information Act, 2005 (for short 'the Act, 2005'). Hence, the 2[nd] respondent approached the 1[st] respondent as per Ext.P2 complaining that the information sought for have not been furnished. The 1[st] respondent issued Ext.P3 notice to the petitioner and the petitioner entered appearance and filed Ext.P4 objection interalia that the petitioner is not a public authority as defined under the Act and hence, not legally bound to furnish information. The 2[nd] respondent filed Ext.P5 reply to Ext.P4. The 1[st] respondent called for information from the 3[rd] respondent vide Ext.P6. Ext.P7 order was passed by the 1[st] respondent concluding that the petitioner is a public authority as defined under Sec.2(h) of the Act, 2005. Aggrieved by the same, this writ petition is filed. 3. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for respondent No. 1. 4. The counsel for the petitioner reiterated his contentions in the writ petition. The learned counsel relied on the judgment of the Apex Court in **Thalappalam Service Co-** WP(C) NO. 2291 OF 2010 5 **operative Bank Ltd.** v. **State of Kerala and others** [2013 (16) SCC 82]. The learned Standing Counsel on the other hand submitted that there is a subsequent judgment of the Apex Court in which the **Thalappalam's** case (supra) is interpreted by the Apex Court in **DAV College Trust and Management and others** v. **Director of Public Instructions and others** [2019 (9) SCC 185]. 5. This Court considered the contentions of the petitioner and the 1[st] respondent. A perusal of the impugned order will show that the dictum laid down by the Apex Court in **Thalappalam's** case (supra) and **DAV College's** case (supra) is not considered because these are subsequent judgments. The counsel for the petitioner relied ground No.H raised in this writ petition which is extracted hereunder : “H. The Right to Information Act provides for constitution of Central Information Commission in respect of Central Government authorities and State Information Commission in respect of State Government authorities as the case may be. The allegation in Exhibit P5 and P6 is that the Society received grant from the Central Government Funds through the third respondent. Hence the State Information Commission has no WP(C) NO. 2291 OF 2010 6 jurisdiction at all to decide the Exhibit P2 application and pass Exhibit P7 order. On the allegations in this case, such public authority can appoint only a Central Public Information Officer and appeals under Section 19 and petitions under Section 18 could be entertained only by the Central Information Commission. Hence there is total lack of jurisdiction for the first respondent.” 6. This point was not raised before the 1[st] respondent. If that is the case, the impugned order can be set aside and all the contentions raised by the petitioner can be left open and the 1[st] respondent can reconsider the matter including the jurisdiction of the 1[st] respondent to entertain the appeal, after giving an opportunity of hearing to the petitioner. The petitioner is free to raise all these contentions before the 1[st] respondent. Therefore, this writ petition is allowed in the following manner : - 1) Ext.P7 is set aside. - 2) The first respondent is directed to reconsider the matter in the light of the judgment of the Apex Court in WP(C) NO. 2291 OF 2010 7 **Thalappalam's** case (supra) and **DAV College's** case (supra), after giving an opportunity of hearing to the petitioner. The jurisdiction of the 1[st] respondent to consider the appeal also will be decided based on the contention raised in this writ petition. 3) Before proceeding with the case, the 1[st] respondent will issue notice to the all parties concerned. **SD/P.V.KUNHIKRISHNAN JUDGE** SKS WP(C) NO. 2291 OF 2010 8 ## APPENDIX PETITIONER'S EXHIBITS : EXT.P1 TRUE COPY OF THE MEMORANDUM OF ASSOCIATION, CERTIFICATE OF REGISTRATION, RULES AND REGULATIONS OF THE SOCIETY TOGETHER WITH THE AMENDMENTS EFFECTED ON 23.3.2003 EXT.P2 TRUE COPY OF THE PETITION DATED 10.12.2008 FILED BY THE SECOND RESPONDENT BEFORE THE FIRST RESPONDENT EXT.P3 TRUE COPY OF THE NOTICE/ORDER DATED 20.12.2008 ISSUED BY THE ADDL. SECRETARY OF THE FIRST RESPONDENT EXT.P4 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT EXT.P5 TRUE OCPY OF THE REPLY DATED 18.6.2009 FILED BY THE SECOND RESPONDENT BEFORE THE FIRST RESPONDENT EXT.P6 TRUE COPY OF THE REPORT DATED 7.10.2009 FILED BY THE INFORMATION OFFICER OF THE THIRD RESPONDENT EXT.P7 TRUE COPY OF THE INTERIM ORDER DATED 22.12.2009 ISSUED BY THE FIRST RESPONDENT IN COMPLAINT PETITION NO. 1354(2)/2008/SIC FILE NO. 12711/SIC-GEN 2/2008 EXT.P8 TRUE COPY OF THE AGREEMENT DATED 18.9.2006 EXECUTED BETWEEN THE SOCIETY AND THE THIRD RESPONDENT. EXT.P9 TRUE COPY OF LETTER DATED 18.6.2010 ISSUED BY THE ADDITIONAL SECRETARY (LAW) AND ADDRESSED TO THE WP(C) NO. 2291 OF 2010 9 PETITIONER EXT.P10 TRUE COPY OF THE NOTICE DATED 12.10.2010 ISSUED BY THE JOINT SECRETARY OF THE FIRST RESPONDENT TO THE PETITIONER. RESPONDENT'S EXHIBITS : NIL