The Secretary, Marangattupilly Service Co-operative Bank Ltd. No. 3556 v. State Information Commission, Thiruvananthapuram and C. O. Frenchi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN** **TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933** **WP(C).No. 10735 of 2010(N)** **-----------------------------------** **PETITIONER(S):** **----------------------** **THE SECRETARY, MARANGATTUPILLY SERVICE CO-OP. BANK LTD. NO. 3556, MARANGATTUPILLY P.O., KOTTAYAM DISTRICT.** **BY ADV. SRI.SUNIL CYRIAC** **RESPONDENT(S):** **------------------------** **1. THE STATE INFORMATION COMMISSION, THIRUVANANTHAPURAM, REP. BY THE STATE CHIEF INFORMATION COMMISSIONER.** **2. C.O.FRENCHI, CHAKKULICKAL HOUSE, MARANGATTUPILLY P.O., KOTTAYAM DISTRICT.** **R1 BY ADV.SRI.M.AJAY,SC. R2 BY ADVS. SRI.T.C.GOVINDA SWAMY SRI.G.SHYAM RAJ SRI.T.R.MOHANAKUMAR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **STU** ## **WP(C).No. 10735 of 2010(N)** ## **APPENDIX** **PETITIONER'S EXHIBITS:** - **P1 : COPY OF JUDGMENT DTD 15/09/2009 IN W.A.NO.1766/2009.** - **P2 : COPY OF THE APPLICATION DTD 18/12/2009 SUBMITTED BY THE 2ND RESPONDENT TO THE PETITIONER.** - **P3 : COPY OF RESOLUTION NO.412 DTD 31/12/2009 OF THE MANAGING COMMITTEE OF THE MARANGATTUPILLY SERVICE CO-OPERATIVE BANK.** - **P4 : COPY OF THE COMMUNICATION NO.2943/09-10 DTD 01-01-2010 GIVEN BY THE PETITIONER TO THE 2ND RESPONDENT.** - **P5 : COPY OF THE NOTICE BEARING NO.1574/SIC-GEN4/2010 DTD 04/03/2010 OF THE 1ST RESPONDENT.** - **P6 : COPY OF THE NOTICE BEARING NO.1574/SIC-GEN4/2010 DTD 16/03/2010 OF THE 1ST RESPONDENT.** ## **RESPONDENT'S EXHIBITS:** ## **NIL** ## **//TRUE COPY//** ## **P.A TO JUDGE.** **STU** ## **P.N.RAVINDRAN** , **J.** ## **--------------------------W.P.(C) No. 10735 OF 2010 -------------------------Dated this the 8[th] day of November, 2011** ## **J U D G M E N T** The petitioner is the Secretary of the Marangattupilly Service Co-operative Bank Ltd. No.3556. The second respondent is a member of the said society. He filed Ext.P2 application dated 18.12.2009 before the petitioner asking for information under the Right to Information Act, 2005 (hereinafter referred to as 'the Act' for short) in respect of various matters. The managing committee of the society that met on 31.12.2009 rejected the application holding that the society is not a public authority as defined in section 2(h) of the Act. In coming to the said decision, reliance was placed on the decision of a Division Bench of this Court in **Thalapalam Service Co-op. Bank Ltd. v. Union of India** (2009 (3) KLT 1001). Thereupon, the petitioner sent Ext.P4 letter dated 1.1.2010 to the second respondent informing him that his application stands rejected. He was also informed that in view of the decision of the Division Bench of this Court in **Thalapalam Service Co-op. Bank Ltd. v. Union of India** WPC No.10735/2010 2 (Supra) the decision taken by the managing committee to appoint an Information Officer was cancelled. 2. It appears, aggrieved thereby the second respondent moved the State Information Commission by filing a petition dated 1.2.2010. Upon receipt of that petition, the State Information Commission issued Ext.P5 notice dated 4.3.2010 calling upon the petitioner to be present for an enquiry at 10.45 am on 15.3.2010. It is stated that though on receipt of Ext.P5, the petitioner's counsel appeared before the State Information Commission on 15.3.2010 and produced a vakalath nama duly executed by the petitioner, the State Information Commission did not receive the vakalath nama or permit the petitioner's counsel to represent on the ground that the Right to Information Act or the Rules do not enable anyone other than the appellant to be represented by a lawyer. Thereafter, the State Information Commission issued Ext.P6 notice dated 16.3.2010 proposing to conduct an enquiry on 27.3.2010 and called upon the petitioner to be present on that day with the available records and to explain the reason why he was not present on 15.3.2010. This writ petition was thereupon filed on 26.3.2010 seeking the WPC No.10735/2010 3 following reliefs: _(i) Issue a writ of mandamus or other appropriate writ, order or direction, quashing Exts.P5 and P6 as illegal, arbitrary and without jurisdiction;_ _(ii) Issue a writ of mandamus or other appropriate writ, order or direction, directing the 1[st] respondent to provide the petitioner, a copy of the application/appeal based on which Exts.P5 and P6 were issued;_ _(iii) Issue a writ of mandamus or other appropriate writ, order or direction, directing the 1[st] respondent to specify the documents to be produced, if any;_ _(iv) Issue a writ of mandamus or other appropriate writ, order or direction, directing the 1[st] respondent to permit the petitioner to appear before him and produce the documents if any, through his lawyer.”_ 3. It is contended that if the applicant who has invoked the appellate jurisdiction of the State Information Commission can be represented by a lawyer or appear in person there is no reason why the respondent to a proceeding should not likewise be permitted to be represented by a lawyer, that a copy of the compliant referred to in Exts.P5 and P6 notices has not so far been served on the petitioner. Taking note of these submissions, a learned single Judge of this Court while admitting this writ petition passed the following interim order on 5.4.2010. WPC No.10735/2010 4 _“Admit. Urgent Notice. The learned Standing Counsel takes notice for the first respondent. Issue urgent notice to the second respondent. The first respondent will allow the petitioner to appear through a counsel in connection with the complaint filed by the second respondent. The learned Standing Counsel submitted that the presence of the petitioner will be required at the time of taking evidence and that is why the Commission wanted him to appear before the Commissioner personally. The learned counsel for the petitioner submitted that initially, the petitioner will have to submit a written defence after the service of the complaint and, the complaint itself has not been served on the petitioner-bank so far. In that view of the matter, for the present, the petitioner will be allowed to appear through a counsel and a copy of the complaint will be served on the petitioner or the counsel as the case may be. This will be subject to further orders to be passed in the writ petition._ 4. When the writ petition came up for hearing today, the learned counsel for the petitioner submitted that till date a copy of the complaint referred to in Exts.P5 and P6 notices has not been served on the petitioner and that after the writ petition was filed, section 30 of the Advocates Act, 1961 was notified and brought into force. The learned counsel contended that by virtue of section 30 of the Advocates Act, 1961 every advocate whose name is entered in the State roll is entitled as of right to practise throughout the territories to which the Act extends, (i) in all WPC No.10735/2010 5 courts including the Supreme Court (ii) before any tribunal or person legally authorised to take evidence and (iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise. The learned counsel for the petitioner contended that as the enquiry contemplated by the State Information Commission contemplates taking of evidence, the petitioner is entitled to be represented by a lawyer. Sri.M.Ajay, the learned standing counsel appearing for the State Information Commission submitted that as section 30 of the Advocates Act has come into force and rule 7 of the Kerala State Information Commission Procedure for Appeal Rules, 2006 permits the appellant to be represented by a person of his choice including a legal practitioner, the Commission will serve a copy of the petition referred to in Ext.P5 on the petitioner and thereafter hear him in person or through a legal practitioner and take an appropriate decision on the petition. In the light of the above submissions and having regard to the subsequent development namely, the bringing into force of section 30 of the Advocates Act, 1961, I dispose of the writ WPC No.10735/2010 6 petition with the following directions: (i) The State Information Commission shall on the petitioner producing a certified copy of this judgment serve on him a copy of the complaint dated 1.2.2010 referred to in Ext.P5. (ii) The petitioner shall within two weeks from the date of receipt of a copy of the complaint, file his written representation. (iii) The Commission shall upon receipt of the representation furnish a copy thereof to the second respondent fix a date for hearing, issue notice to the parties and hear them either by video conferencing or in person and take an appropriate decision on the complaint expeditiously. (iv) Having regard to the nature of the dispute raised by the petitioner, I am of the opinion that the direction issued in Ext.P6 to the petitioner to explain the reason why he was not present on 15.3.2010 shall not be enforced. ## **P.N.RAVINDRAN, (JUDGE)** vps WPC No.10735/2010 7