Pradeep Kant, J.
1. Following two questions arise for determination In the present writ petition:
(1) Whether the information disclosing the names of the persons including address and amount, who have received more than Rs. 1 lac from the Chief Minister Discretionary Fund, can be given to the information seeker or it is an information, which stands exempted under Section 8(j) of the Right to Information Act.
(2) Whether the Chief Information Commissioner while considering the complaints under Section 18 of the Right to Information Act, 2005 Is competent only to award the prescribed punishment, in case of failure of information being given as per the provisions of the Act or while dealing with the said complaints, any direction can also be issued for furnishing the information which has not been provided, though it is not found to be exempted under the provisions of the Act.
2. Right to Information Act. 2005 (referred to as the 'R.T.I. Act') enacted by the Parliament, received assent of the President on 15.6.2005, and which came into force w.e.f. 12.10.2005, is relatively a new legislation and, therefore, is having its teething problem giving rise to various Issues, which require consideration by the Court.
3. Needless to mention that the Act is not meant for creating a new type of litigation or a new forum of litigation between the information seeker and the information giver, but may be that some of the informations asked for, be Inconvenient to the persons to whom it relates and, therefore, every effort would be made to refuse divulgence of such an Information and for that matter either to refuse the information by delaying the process or passing a specific order of refusal, may be some time by taking shelter under the provisions of Sections 8 and 9 of the Act, which are the exemption clauses.
4. The information covered by the aforesaid provisions is either completely exempted or it has been given limited protection, i.e., though the Information is otherwise exempted but can be disclosed on the satisfaction of the Public Information Officer, if he is satisfied that the disclosure of such an information is in larger public interest.
5. Our Constitution establishes a democratic republic. Democracy requires an informed citizenry and transparency of information which are vital to Its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed. The revelation of information in actual practice is likely to conflict with other public interests Including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information and, therefore, with a view to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal, the Parliament enacted the Act of 2005 to provide for furnishing certain information to citizens who desire to have it.
6. R.T.I. Act in fact, has been enacted to provide for setting out the 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 every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.
7. 'Right to Information' is the right to obtain information from any public authority by means of, (i) inspection, taking of extracts and notes ; (ii) certified copies of any records of such public authority ; (iii) diskettes, floppies or in any other electronic mode or through printouts where such information is stored in a computer or in any other device.
8. Information in this context means any material in any form relating to the administration, operations or decisions of a public authority.
9. The Act provides for making information held by executive agencies of the State available to the public unless it comes within any one of the specific categories of matters exempt from public disclosure. Virtually all agencies of the executive branch of the Government are required by the Act to issue regulations to implement the provisions of the Act. These regulations inform the public where certain types of information may be readily obtained, however, other information may be obtained on request, and what internal agency appeals are available if a member of the public is refused the requested information.
10. The Right to Information Act is designed to prevent abuse of discretionary power of the Governmental agencies by requiring them to make public certain information about their working and work product.
11. Right to information or right to know is an integral part and basic tenet of the freedom of speech and expression, a fundamental right guaranteed under Article 19(1)(a) of the Constitution. It also flows from Article 21 as enunciated by the Apex Court in the case of Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Bombay Pvt Ltd. and Ors. : AIR1989SC190 . The Apex Court in this case while dealing with the issue of freedom of press and administration of justice, held that 'we must remember that the people at large have a right to know in order to be able to take part in a participatory development in the industrial life and democracy. Right to know is a basic right which citizens of a free country aspire in the broader horizon of the right to live in this age in our land under Article 21 of our Constitution. That right has reached new dimensions and urgency. That right puts greater responsibility upon those who take upon themselves the responsibility to inform'.
12. It is thus, a fundamental right, which cannot be denied, unless of course it falls within the exemption clause or otherwise is protected by some statutory provisions.
13. The functioning of the State and its instrumentalities and functionaries under the cover of darkness leave the citizens ignorant about the reasons and rationale of any decision taken by the authorities or any policy made and the implications thereof, whereas the citizens have a guaranteed 'Right to Know'. The legal and consequential corollary of the aforesaid right will be that a person getting the required information may move for redressal of the wrong done or any action taken, order passed or policy made by approaching the appropriate forum, as may be permissible under law. The purpose and object of the Act is not only to provide information but to keep a check on corruption, and for that matter confers a right upon the citizens to have the necessary information, so that appropriate action may be initiated or taken against the erring officers and also against the arbitrary and illegal orders.
14. The Supreme Court even before the advent of the Right to Information Act, 2005 had stressed upon the importance of transparency in administration and governance of the country and for that matter time and again has entertained writ petitions requiring the State to disclose the information asked for.
15. Reference can be made to the case of State of U.P. v. Raj Narain : [1975]3SCR333 . A Constitution Bench of the Apex Court in this case, considered the plea of privilege of not disclosing the information with respect to the tour arrangement of Smt. Indira Nehru Gandhi for her tour programmes of Raebareilly and also the information disclosing any general order for security arrangement during the general elections alongwith disclosure of all correspondence between the Government of India and the State Government, and between the Chief Minister and the Prime Minister, rjid held unanimously that the informations asked for, are to be disclosed. The appeal against the judgment of the Allahabad High Court was allowed. His Lordship Justice Mathew, in a separate concurring judgment, in para 74 observed as under:
In a Government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. To cover with veil of secrecy, the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.
16. As a result of constant demand of disclosure of Information and to make the people know about the functioning of the Government, its authorities and functionaries and the manner in which, decisions are taken or even policy made, including their implementation and to uproot corruption, redtapism and delay in functioning of the State functionaries, apart -from decisions taken in individual cases the central legislation in the shape of Right to Information Act, 2005 has been enacted, which prescribes the substantive as well as procedural provisions for securing the information by any person, who seeks that information, without requiring him to disclose the reason as to why this information is being asked for.
17. The Act obligates every public authority as defined in Section 2(h) to designate as many officers, as Central Public Information Officers or State Public Information Officers, as the case may be, in all administrative units or office under it as may be necessary to provide information to persons requesting for the information under Section 5 of the Act.
18. Section 2(J) says that '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
(i) inspection of work, documents, records:
(ii) taking notes, extracts or certified copies of documents or records ;
(iii) taking certified samples of material ;
(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 In any other device,' whereas Section 3 says that 'subject to the provisions of this Act, all citizens shall have the right to information.
19. Section 4(1) obligates that:
(a) every public authority shall maintain all Its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records Is facilitated; (b) publish within one hundred and twenty days from the enactment of this Act
(i) the particulars of its organisation, functions and duties:
(ii) the powers and duties of its officers and employees ;
(iii) the procedure followed in the decision making process, including channels of supervision and accountability;
(iv) the norms set by it for the discharge of its functions;
(v) the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions;
(vi) a statement of the categories of documents that are held by it or under its control;
(vii) the particulars of any arrangement that exists for consultation with, or representation by, the members of the public In relation to the formulation of its policy or implementation thereof;
(viii) a statement of the boards, councils, committees and other bodies consisting of two or more persons constituted as its part or for the purpose of Its advice, and as to whether meetings of those boards, councils, committees and other bodies are open to the public, or the minutes of such meetings are accessible for public;
(ix) a directory of its officers and employees;
(x) the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations;
(xi) the budget allocated to each of Its agency, indicating the particulars of all plans, proposed expenditures and reports on disbursements made;
(xii) the manner of execution of subsidy programmes, including the amounts allocated and the details of beneficiaries of such programmes;
(xiii) particulars of recipients of concessions, permits or authorisations granted by it;
(xiv) details in respect of the information, available to or held by it, reduced in an electronic form;
(xv) the particulars of facilities available to citizens for obtaining information, including the working hours of a library or reading room, if maintained for public use;
(xvi) the names, designation and other particulars of the Public Information Officers;
(xvii) such other Information as may be prescribed, and thereafter update these publications every year.
20. Apart from the informations aforesaid, the Act permits any person to seek Information in the prescribed manner by moving an application to the Public Information Officer, giving the details of the Information asked for and also depositing the requisite fee, as may be prescribed.
21. Section 6 of the Act says that a person, who desires to obtain any Information under this Act, shall make a request in writing or through electronic means in English or Hindi or in the official language of the area in which the application is being made, accompanying such fee as may be prescribed, to:
(a) the Central Public Information Officer or State Public Information Officer, as the case may be, of the concerned public authority;
(b) the Central Assistant Public Information Officer or State Assistant Public Information Officer, as the case may be, specifying the particulars of the information sought by him or her:
Provided that where such request cannot be made in writing, the Central Public Information Officer or State Public Information Officer, as the case may be, shall render all reasonable assistance to the person making the request orally to reduce the same in writing.
Sub-clause (2) says that an applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.
22. Section 7 of the Act provides the mode and manner of disposal of request made, seeking information, which prescribes a maximum period of thirty days for providing such information from the date of receipt of the application on payment of such fee, as may be prescribed. It also says that the application may either be accepted or may be rejected for the reasons specified in Sections 8 and/or 9.
23. The proviso annexed to Section 7(1) says that where the information sought for concerns the life or liberty of a person, the same shall be provided within forty eight hours of the receipt of the request.
24. Sub-clause (2) says that if the Central Public Information Officer or State Public Information Officer, as the case may be, fails to give decision on the request for information within the period specified under Sub-clause (1), the Central Public Information Officer or State Public Information Officer, as the case may be, shall be deemed to have refused the request.
25. Section 7 in effect prescribes not only the procedure, which is to be adopted after receipt of the request of seeking information but also prescribes the time limit, in which such information is to be given, the payment of requisite fee and various other procedure, which may be required to be fulfilled while seeking and giving the information.
26. The present controversy does not relate to the prescription of fee and the manner in which additional fee can be asked for, but is confined to the questions, formulated in the opening part of this order. If the information is not given within the time period prescribed for giving information, it would be deemed to have been refused, even if information is not specifically refused or denied. The information can be refused only in case there exists any reason specified in Section 8 or Section 9. Sub-clause (8) of Section 7, makes it mandatory to communicate the person making the request ; (i) the reasons for such rejection ; (ii) the period within which an appeal against such rejection may be preferred : (iii) the particular of the appellate authority.
27. Section 8 provides exemption from disclosure of information and it categorically provides the specified informations, where disclosure of the information shall not be obligatory notwithstanding the provisions of the Act, 2005.
28. A perusal of the aforesaid provisions of Section 8, reveals that there are certain informations contained in Sub-clauses (a), (b), (c), (f), (g) and (h), for which there is no obligation for giving such an information to any citizen ; whereas informations protected under Sub-clauses (d), (e) and (J) are though protected informations, but on the discretion and satisfaction of the competent authority, that it would be in larger public interest to disclose such information, such information can be disclosed. These informations thus, are having limited protection, the disclosure of which is dependent upon the satisfaction of the competent authority that it would be in larger public interest as against the protected interest to disclose such information.
29. Sub-clause (i) protects the information with respect to cabinet papers including records or deliberations of the Council of Ministers, Secretaries and other officers, for a definite period after which protection umbrella stands eroded when the decision is taken and the matter is complete or over, provided further that those matters which come under the exemptions specified in this section shall not be disclosed.
30. There can be no quarrel or any dispute with respect to the information which are completely protected or to say totally exempted from being disclosed as no citizen can claim a right to have such an information, but the dispute arises where exemption is being claimed under any of the aforesaid provisions of Section 8, but the question arises as to whether information asked for is covered by any of the exemption detailed in the said section or not.
31. The controversy arises where exemption is claimed under limited protection provided under Sub-clauses (d), (e) and (j), and the information seeker requests for disclosure of the information, but the Public Information Officer refuses to supply such information on the ground that information stands exempted. In such cases, the role of the appellate authority or that of the Commission including that of the Chief Information Commissioner is very important, depending upon the jurisdiction exercised and the satisfaction arrived by such authority in deciding' as to whether ; (i) information asked for, at all stapds exempted under any of the aforesaid provisions ; and (ii) even if it is exempted, should it be disclosed in larger public interest as against the protected interest of the individuals.
32. In case of third party information, the provisions of Section 11 are to be taken into account, which prescribe a procedure of affording opportunity to the third party to whom the information relates, or who has given the information and who has treated the said information in confidentiality, by giving him notice to have its views and, thereafter, it is to be decided as to whether the information should be disclosed or not, as per the satisfaction of the competent authority.
33. In case of refusal of information either by specific order by Public Information Officer or under the deeming provision of refusal, the matter can be taken up in appeal under Section 19, before the first appellate authority as may be prescribed and further in second appeal to the Central Information Commission or the State Information Commission, as the case may be.
34. The provision of appeal has been made for third party also under Sub-clause (2) of Section 19.
35. The period for deciding the first appeal is thirty days with total extended time of 45 days. The limitation for filing the appeal is also thirty days, but this period can be condoned on sufficient cause being shown by the appellant, by the appellate authority. The second appeal has to be filed within 90 days from the date on which the decision should have been made or was actually received. The Central Information Commission or State Information Commission, as the case may be, may admit the appeal after the expiry of the period of ninety days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. In appeal, reasonable opportunity is to be given to the third party also, if the matter relates to third party.
36. Sub-clause (7) of Section 19 says that the decision of the Central Information Commission or State Information Commission, as the case may, shall be binding, and Sub-clause (8) says that in its decision, the Central Information Commission or State Information Commission, as the case may be, has the power to:
(a) require the public authority to take any such steps as may be necessary to secure compliance with the provisions of this Act, including
(i) by providing access to information, if so requested, in a particular form;
(ii) by appointing a Central Public Information Officer or a State Public Information Officer, as the case may be;
(iii) by publishing certain information or categories of information;
(iv) by making necessary changes to its practices in relation to the maintenance, management and destruction of records;
(v) by enhancing the provision of training on the right to information for its officials;
(vi) by providing it with an annual report in compliance with Clause (b) of Sub-section (1) of Section 4 ;
(b) require the public authority to compensate the complainant for any loss or other detriment suffered.
(c) impose any of the penalties provided under this Act ;
(d) reject the application.
37. Section 19(8) thus, authorises the Commission to require the public authority to take any such steps as may be necessary to secure compliance with the provisions of the Act, and Sub-clause (c) also permits to impose any of the penalties provided under this Act. The penalty has been provided under Section 20 of the Act, which can be imposed in the given circumstances mentioned therein.
38. Sub-clause (1) of Section 20 gives the circumstance, under which the penalty can be imposed and it permits a penalty of Rs. 250 each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed Rs. 25,000. Sub-clause (2) of Section 20 gives power to recommend for disciplinary action against the Central Public Information Officer or a State Public Information Officer, as the case may be, under the service rules applicable to him, in case the Central Information Officer or the State Information Officer, as the case may be, has denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information.
39. Section 18 is the provision for making complaint and lays down the procedure for entertaining a complaint and making enquiry.
Section 18 reads as under:
18. (1) Subject to the provisions of this Act, it shall be the duty of the Central Public Information Commission or State Information Commission, as the case may be, to receive and inquire into a complaint from any person
(a) who has been unable to submit a request to a Central Public Information Officer or State Public Information Officer, as the case may be, either by reason that no such officer has been appointed under this Act, or because the Central Assistant Public Information Officer or State Assistant Public Information Officer, as the case may be, has refused to accept his or her application for information or appeal under this Act for forwarding the same to the Central Public Information Officer or State Public Information Officer, or senior officer specified in Sub-section (1) of Section 19 or the Central Public Information Officer or State Public Information Officer, as the case may be;
(b) who has been refused access to any information requested under this Act;
(c) who has not been given a response to a request for information or access to information within the time limit specified under this Act;
(d) who has been required to pay an amount of fee which he or she considers unreasonable;
(e) who believes that he or she has been given incomplete, misleading or false information under this Act; and
(f) in respect of any other matter relating to requesting or obtaining access to records under this Act.
(2) Where the Central Public Information Commission or State Information Commission, as the case may be, is satisfied that there are reasonable grounds to inquire into the matter, it may initiate an inquiry in respect thereof.
(3) The Central Information Commission or State Information Commission, as the case may be, shall while inquiring into any matter under this section, have the same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely:
(a) summoning and enforcing the attendance of persons and compel them to give oral or written evidence on oath and to produce the documents or things;
(b) requiring the discovery and inspection of documents;
(c) receiving evidence on affidavit;
(d) requisitioning any public record or copies thereof from any Court or Office;
(e) issuing summons for examination of witnesses or documents ; and
(f) any other matter which may be prescribed.
(4) Notwithstanding anything Inconsistent contained in any other Act of Parliament or State Legislature, as the case may be, the Central Information Officer or State Information Commission, as the case may be, during inquiring of any complaint under this Act, examine any record to which this Act applies which is under the control of the public authority, and no such record may be withheld from it on any ground.
40. Section 18 thus is a provision which is a consciously introduced section, so as to exercise complete control over the functioning of the Public Information Officers, at the time of receiving application, and at the time of giving Information or during the appeal under the Act.
41. Any applicant who has not been given a response to a request for information or access to information within the time limit specified under the Act, or who has been required to pay an amount of fee which he or she considers unreasonable, or has been given false information, and in respect of any other matter relating to requesting or obtaining access to records under the Act, may approach the Commission, who would enquire into the complaint, and while making an enquiry, it has all the powers as are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the matters enumerated therein.
42. The Commission under Sub-clause (4), which begins with a non obstante clause, during enquiry of any complaint under the Act, can examine any record to which this Act applies which is under the control of the public authority, and no such record shall be withheld from it on any ground.
43. In the light of the aforesaid provisions of the Act, the matter in issue requires consideration. Learned Counsel for the petitioner has argued that the information asked for, namely, names and details of all the persons who have received more than Rs. 1 lac from the Chief Minister's Discretionary Fund during the period 28.8.2003 upto 31.3.2007, cannot be provided as It stands exempted under Section 8(j) of the Act.
44. The second argument is that the Commission while dealing with the complaints under Section 18, could not direct the Public Information Officer to supply the information within a specified time, regarding which complaint has been made, as under Section 20, it is only the penalty which can be imposed on the erring officer, but information cannot be directed to be given, as such a direction could be issued only in appeal, whether first or second and the present applicant having not preferred the second appeal, his prayer for disclosure of the information asked for, in proceeding under Section 20 could not have been entertained.
45. Section 8(i) of the Act gives limited protection. The information asked for under the aforesaid clause, can stand protected, if it satisfies, either of the following conditions:
(i) it should be an information which relates to personal information, and the disclosure of such information has no relationship to any public activity or interest; and
(ii) or it would cause unwarranted invasion of the privacy of the individual.
46. The discretion, which has been given to the Central Public Information Officer or State Public Information Officer or the appellate authority, as the case may be, is to the effect that on their satisfaction that the larger public interest justifies the disclosure of such information, the same may be supplied. It means that though the information asked for is otherwise exempted from being supplied, but it can be disclosed if larger public interest justifies the disclosure of such information. Who will decide this larger public interest? It is not the applicant or the person against whom the information is asked for, but the information officer or the competent authority, as the case may be. Of course, while deciding the aforesaid question, the views of both the parties can be taken into account or so to say have to be taken into account by the concerned authority under the R.T.I. Act, for the reason that the person who is asking for the information, would say it is in larger public interest to disclose the information, whereas the person against whom the information is being asked for shall dispute the aforesaid fact.
47. The information regarding the money advanced beyond Rs. 1 lac to any person from the Chief Minister's Discretionary Fund, apparently is not an information which could be said to be protected under the provisions of Section 8 and in particular Section 8(j) of the Act.
48. The petitioner's case is that if such an information is disclosed, it would cause unwarranted invasion of the privacy of the individual. The individual means the person who is the beneficiary of such amount.
49. Elaborating the aforesaid plea, reliance has been placed upon the application/objections filed by the petitioner before the Commission, wherein it has been said that the persons who have received or would have received the discretionary fund of the Chief Minister also have a social status and self respect and if their names are disclosed,' that will be an unwarranted invasion in their privacy.
50. For testing the aforesaid plea, the nature of such grant has to be seen and it is also to be tested, whether the Chief Minister's Discretionary Fund is immune to any sort of scrutiny or audit or that such fund can be used or diverted in any manner, as the Chief Minister desires and that no limitation or restriction has been imposed under the scheme, under which this fund is to be provided or its disbursement stands protected under the provisions of Section 8.
51. A keen look upon the scheme of Chief Minister's Discretionary Fund, and the Rules which govern it, is necessary for dealing with the issue involved.
52. In supersession of the U.P. Chief Minister's Discretionary Fund Rules, 1989, Rules of 1999 were enforced by the Governor of the State in exercise of his powers under Article 283(2) of the Constitution of India.
Article 283(1)........
53. Article 282 and 283, which fall under Chapter I, Part 12 of the Constitution dealing with finance, has been placed under the heading 'Miscellaneous Financial Provisions'.
54. Article 282 deals with the expenditure defrayable by the Union or a State out of its revenues, lays down as under:
The Union or a State may make any grants for any public purpose, notwithstanding that the purpose is not one with respect to which Parliament or the Legislature of the State, as the case may be, may make laws.
55. Article 283 is about the custody, etc, of Consolidated Funds, Contingency Funds and moneys credited to the public accounts, wherein Sub-clause (2) provides that : Consolidated Fund of the State and the Contingency Fund of the State and the custody of public money other than those credited to such funds received by or on behalf of the Government of the State, their payment into the public account of the State and withdrawal of moneys from such account and all other matters connected with or ancillary to matters aforesaid shall be regulated by law made by the Legislature of the State, and, until provision in that behalf is so made, shall be regulated by rules made by the Governor of the State'. It is in pursuance of the aforesaid power vested with the Governor, the Rules of 1989 and thereafter, the Rules of 1999 have been framed.
56. The Rules of 1999 were amended by notification issued on 22.11.2005, with respect to certain clauses and again vide notification dated 22.11.2006, issued by the Governor in exercise of his powers under Article 283(2) of the Constitution of India.
57. Amendments/modifications made in the Rules of 1999 are only with respect to the entitlement category and the amount which can be awarded to the person entitled for such discretionary fund rest of the Rules of 1999 are still in force.
58. In the Rules of 1999, Rule 2 provides that the adequate or sufficient amount, with the sanction/ consent of the Legislature of the State (Rajya Vidhan Mandal), shall be placed in the Chief Minister's Discretionary Fund, which shall be granted to the individuals or to the institutions by the Chief Minister. The Explanation given therein deals with the situation when there is President's Rule in the State.
59. Rule 3, lays down the conditions under which the grant/payment from the Chief Minister's Discretionary Fund can be given.
60. Sub-clause (1) says that the grant shall be made to such persons or institutions, who are eligible for such a grant from the State fund.
61. Sub-clause (2) says that the grant shall not be recurring and it would not mean that it would be spent in any personal type of expenditure nor such an expenditure would be borne by the discretionary fund.
62. Sub-clause (3) of Rule 3, lays down the category of persons to whom the grant can be made and also the maximum amount which can be paid to such persons including the institutions.
63. Sub-clause (4) gives the discretion to the Chief Minister to award the amount in excess of the amount prescribed to any person in any special matter, as per his or her discretion, as the case may be, whereas Sub-clause (5) prescribes for audit of the discretionary fund by the Accountant General, making it obligatory for the Chief Minister's office, to forward him a copy of the order of grant made in favour of any person.
64. Sub-clause (6) (Ka) and (6) (Kha) confers power upon the Chief Minister or the officer nominated by him to make inspection of the record of the person, to whom the grant has been made, if it is a grant of more than Rs. 5,000.
65. Sub-clause (6) (Kha) says that the District Magistrate shall make verification and shall certify about the utilization of the grant made and he will make relevant records available at the time of audit. The District Magistrate shall also ensure that the grant has been made to the eligible persons.
66. Sub-clause (7) requires the beneficiary to give a certificate that he has not taken the benefit of any discretionary fund of any Minister and has not applied for any discretionary fund of any Minister and that in the relevant year, he is not a beneficiary of such a grant. It is only after giving such a certificate, the grant shall be disbursed.
67. Sub-clause (8) says that the beneficiary has to utilise the amount of grant from the Chief Minister's Discretionary Fund within the prescribed period and if he fails to do so, he will have to return the unused money in one go.
68. Sub-clause (9) obligates the District Magistrate to give utilization certificate of the amount paid to the beneficiary, and Sub-clause (10) says that the order of sanction form the discretionary fund and the account disbursed, shall be maintained in the Account Section of the Chief Minister's office.
69. Sub-clause (11) says that where the amount of such discretionary fund is more than Rs. 500, the beneficiary will have to give a stamp receipt in acknowledgment thereof.
70. By means of the amendment/modification by the notification dated 22.11.2005, Sub-clause (3) which deals with the category of persons entitled for the grant and the amount which can be given to a particular person including institutions has been amended, enhancing the said amount to certain extent and lastly by the amendment of 2006, amendments have been made in Sub-clauses (3), (4) and (6) to the same effect, i.e., the category of persons to whom the grant can be made from the discretionary fund of the Chief Minister and the maximum amount that can be paid to such persons, etc.
71. The Chief Minister's Discretionary Fund thus, is a part and parcel of the Consolidated Fund of the State, subject to all constitutional sanctions and statutory bindings. It is in fact the public money and, therefore, public has a right to know about it.
72. The Chief Minister's Discretionary Fund thus, is not and cannot be treated as personal fund of the Chief Minister, but it is the discretionary fund, which has to be disbursed, at his/her discretion, as the case may be, which disbursement again is governed by the Rules. The discretion has to be exercised in the manner as may be prescribed under the Rules.
73. The amount of Rs. 1 lac or more can be given to persons, who are enumerated in Rule 3(b) to 3(f).
Rule 3 read as under:
(3) This grant may be given by the Chief Minister to the persons upto the limit mentioned below according to his discretion:
(a) to helpless, Disabled, persons of poor classes or boys or widows : Not more than Rs. 1,00,000;
(b) to institutions involved into social and cultural activities (other than institution based on caste or religion : Not more than Rs. 5,00,000;
(c) to poor persons suffering from illness : Not more than Rs. 5,00,000;
(d) to for the construction of building of non-Governmental educational institutions : Not more than Rs. 5,00,000;
(e) to poor families whose earning member is killed in a brutal murder/crime or died due to accident, snake bite or drowning of boat : Not more than Rs. 5,00,000;
(f) to persons suffering from massive fire breakout, land sliding, snowfall or other natural calamities : half of the loss occurred on'general standards or Rs. 2,00,000 whichever is less;
(g) to person seriously injured in (one) accident and is in need of money : Not more than Rs. 1,00,000 ; and
(h) to needy person injured in (two) accidents : Not more than Rs. 25.000.
74. The rules aforesaid thus prescribed the category of persons, who are entitled for the benefit of discretionary fund of the Chief Minister with the maximum amount that can be given to them, of course subject to discretion of the Chief Minister, who is authorised to give an amount even in excess of the prescribed limit, but it does not lay down anywhere that the discretionary fund can be given to persons not entitled under the rules. Even supposing (though the Rules do not permit) that the Chief Minister has the power to extend the benefit of the discretionary fund to any class of person/persons with discretion of any such amount being paid, nonetheless, it is governed by the rules and, therefore, if any amount is paid to a person, as enumerated under the rule or that the amount has been paid in excess of the amount prescribed, the amount paid even then cannot be treated to be an action of the Chief Minister or the Chief Minister's Secretariat, which is not amenable to the public knowledge.
75. The discretion which is governed by the rule cannot be treated as insulated with immunity so as to cover it up and not to make it known to the person, who is asking for such an information. No rule or provision, either constitutional or statutory has been placed before us to draw a presumption of secrecy with respect to the amounts disbursed and the details of such person or in other words, with respect to the disbursement of the discretionary fund from the Chief Minister Secretariat, to the persons who are the beneficiary of such disbursement.
76. In the case of Coimbatore District Central Coop. Bank v. Employees Assn. : (2007)IILLJ724SC , the Court dealing with the doctrine of proportionality, a principle where the Court Is concerned with the process, method or manner In which the decision maker has ordered his priorities, reached a conclusion or arrived at a decision, observed that the doctrine of proportionality has its genesis in the field of administrative law. The Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without abuse of discretion. There can be no 'pick and choose', selective applicability of the Government norms or unfairness, arbitrariness or unreasonableness. The very essence of decision making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature of exercise, the elaboration of a rule of permissible priorities. 'Proportionality' involves 'balancing test' and 'necessity test', whereas the former (balancing test) permits scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the latter (necessity test) requires infringement of human rights to the least restrictive alternative.
77. The Chief Minister while distributing the amount to the persons entitled to have the benefit of the aforesaid public fund, has the discretion to make such grant to the eligible persons and while exercising the discretion, he/she as the case may be, has the discretion to enhance the amount as against the amount normally prescribed for each category, but the discretion to whom the amount under the discretionary fund should be paid and what amount should be paid also has to be exercised with caution and care and on a reasonable basts, e.g., in any special matter where the amount specified is found to be very low, so as to meet the exigency for which the amount is to be paid, the Chief Minister would have the discretion to make a larger payment which means that the discretion of giving enhanced amount is also circumscribed by the requirement of it being a 'special matter'. For example, in case a poor person needs to have the medical expenses for kidney transplant, lever transplant, bypass surgery or any other disease like cancer etc. requiring huge expenditure in his treatment, the enhanced amount can be given. Illustrations aforesaid are not exhaustive, as there may be many more cases, under different entitlements, where the Chief Minister could exercise the discretion of providing any enhanced or increased amount as against the one prescribed. Whenever a discretion is vested with any authority to do or not to do a thing, it has to be done by exercise of sound discretion, as per the rules and guidelines given under the rules.
78. When the Rules themselves prescribe the categories of persons to whom the benefit can be extended with the eligibility criteria, the maximum amount which can be paid to such defined persons, there being requirement of making audit by the Accountant General, U.P., of the Chief Minister's Discretionary Fund with powers to the Chief Minister and District Magistrate to look into the records of the beneficiaries and verify that the amount has been received by the eligible persons, coupled with the fact that the beneficiary is also under the obligation to utilise the fund given to him within the prescribed period for the purpose it was given, failing which, unused amount has to be refunded in one go, it cannot be said that there can be any secrecy in the matter either with respect to the disbursement of the discretionary fund to any particular person or his/her entitlement for the same nor it would be a case of infringing any right of privacy of a person, to whom the benefit has been extended.
79. There appears to be no reason for not making such information known to the public or atleast not making it known to the persons, who asks for such information, when the disbursement is made under the Rules notified by the Governor. Extending the benefit to the eligible and deserving persons, is a laudable object and a highly appreciative function of the Chief Minister and, therefore, also the disclosure of such an information would not affect the credibility .of the Chief Minister's Secretariat or its functioning, but would make the entire functioning transparent, which would enable the applicant to know that the discretionary funds have been properly utilized. In a democratic set up, every organ of the State including the Legislature and the executive is answerable and accountable to the public.
80. There cannot be a bar nor any impediment can be placed in disclosing such an information which relates to the benefits extended from the discretionary fund of the Chief Minister to the persons entitled to such benefit.
81. Chief Minister's Discretionary Fund is a name, but nonetheless it is a public fund and public money. The citizens have a right to know that in what manner, the said discretionary fund has been used and utilized. From the category of persons to whom this benefit can be extended, it is clear that it takes into account not only the destitute, disabled weaker section of people, widows, children, but it also prescribes the given amount for social and cultural organizations, poor person suffering from disease, for construction of the school building of any Non-Governmental Educational Institution etc. etc. That being so, there cannot be any plausible reason for not disclosing the information regarding disbursement of the discretionary fund to any person.
82. The plea that if such an information is disclosed, it would cause unwarranted invasion of the privacy of the person who is a beneficiary is concerned, the same is wholly untenable and devoid of substance. The person who is extended the benefit of discretionary fund does not compromise with his honour and prestige nor acceptance of such a benefit belittles his status. The Chief Minister while extending the benefit of the given amount from the Chief Minister's Discretionary Fund, discharges his/her, as the case may be, social obligation, in consonance with the socio economic policy of the State to the person, who is entitled under the rules for having the said benefit. The extension of the economic assistance to the persons entitled, is a step towards discharging the functions of a welfare State by providing monetary help to the deserving under the Rules.
83. The benefit is supposed to be extended possibly to the maximum number of persons, who fall within the category of entitlement, which care has been taken by providing the maximum amount against each category of person, which can be normally provided. This has been done with a view to meet the economic capacity and the amount, available in the Chief Minister's Discretionary Fund. The amount appears to have been prescribed against each category, with a view to make the funds available to maximum possible number of people and not allowing the discretion to be exercised in a manner, so that it concentrates into the hands of few beneficiaries. . Of course, those who are not entitled for the discretionary fund, may not be allowed the money from the said fund, if the rule or the law otherwise does not permit.
84. The beneficiary of the discretionary fund cannot feel any inconvenience or discomfort, in case the information is given about the amount, that has been given to him under the said rule. Of course, if any undue advantage has been derived, it cannot stand protected by simply hiding or by not disclosing the information to the person, who asks for the same.
85. The plea that if such an information is given, it would cause unwarranted invasion of the privacy of the individual beneficiary is otherwise also not available to the petitioner or the Public Information Officer or the State nor to the department concerned, as it may be the individual defence, if at all available, to the beneficiary. The information asked for, is only to provide the information with respect to the discretion of the Chief Minister's Secretariat, where the funds have been released to the beneficiaries, and not the information from the beneficiaries, as to what they have done to the funds given to them. In case, any such information is asked for, which relates to third person, namely, the beneficiary, and if, he or she had claimed confidentiality of such an information, and if such an information can at all be treated as confidential, only in that case, provisions of Section 11 would apply, but it would also not mean that such an information would stand absolutely exempted from being disclosed.
86. It is to be noticed that when the beneficiary of the grant from the Chief Minister's discretionary Fund is under an obligation to use the money so paid for the same very purpose, for which, it has been paid with the obligation upon the beneficiary to return the unused money in one go, and that too within the prescribed period, for which utilization certificate has to be furnished by the District Magistrate after making necessary verification, it cannot be said that it is an information, which can seek confidentiality within the meaning of Section 11 of the Act of 2005 or can be treated as confidential by the beneficiary, treating it to be a third party information. One cannot forget, that the monetary assistance extended to the beneficiary is from the public fund.
87. In our considered opinion, the information asked for regarding the names and details of the persons, who have been paid an amount of more than Rs. 1 lac from the Chief Minister's Discretionary Fund for the period in question, is not an information, which is covered under Section 8(j) nor it stands exempted otherwise.
88. This takes us to the next question regarding the authority of the Commission/Chief Information Commission to direct the Public Information Officer to give the information asked for within a specified period, while dealing with a complaint under Section 18 of the Act.
89. The petitioner in support of his plea, that the Commission cannot direct for supply of the Information, in proceedings under Section 18, has relied upon the case of Reliance Industries Ltd. v. Gujarat State Information Commission and Ors. : AIR2007Guj203 . A learned single Judge of the High Court of Gujarat in this case, while considering the effect of information asked for relating to third party, taking into account the provisions of Sections 11 and 19 of the Act, also had an occasion to consider the scope of Section 18 of the Act, wherein the Court observed that a third party information cannot be given unless the rules of natural justice are followed in the manner prescribed under the Act.
90. The legal proposition as enunciated by the Gujarat High Court with respect to affording of reasonable opportunity to the third party to whom either the information relates or who had supplied the information and which information is being treated as confidential by such a person, is not only the tenet of the principles of natural justice but it also flows from the statutory provisions of Section 11(1) itself. In case where Section 11 applies, of course, due opportunity, as provided under the Act, has to be afforded to the third party and only after following its rules, the information can be supplied or refused and that too by giving reasons.
91. We, therefore, are in respectful agreement with the aforesaid view of following the rules of-natural justice, expressed by the Gujarat High Court.
92. The view expressed otherwise in respect of locus standi of a person to seek an information and also on the scope of Section 18 of the Act, requires consideration.
93. The Gujarat High Court while dealing with the aforesaid proposition of law, took into consideration the judgment of the Apex Court in the case of Ashofc Kumar Pandey v. State of West Bengal and Ors. : AIR2004SC280 , for holding that care has to be taken that the information is not asked for by the persons, who seek the information with an intention to blackmail the person against whom the information is asked for and that the nature of the information asked for and the person who asked for information are the relevant considerations.
94. In regard to the observations of the Gujarat High Court, suffice would be to mention that the Court proceeded on the assumption that the right to seek information is like filing writ petition in the nature of public interest litigation. In a public interest litigation, care has to be taken that it is not a petition for settling the personal score or satisfying the personal vendetta or is not a publicity interest litigation or pecuniary interest litigation. The essence of the grievance raised and the bona fide of the person in bringing the issue to the Court, are such key factors, which play an important role in the public interest litigation.
95. The Supreme Court even in a petition of P.I.L. has held in the case of T. N. Godavarman Thirumulpad (98) v. Union of India and Ors. (2006) 5 SCC 28 : 2006 (5) AWC 5350 (SC) and Vishwanath Chaturuedi (3) v. Union of India and Ors. : (2007)4SCC380 , that even if the person bringing the cause to the Court has no locus standi to pursue the matter or he is not a bona fide person or a public spirited person or may have approached the Court with political reasons but still in such a case the grievance raised can be looked into and if found genuine and worth being enquired into, the same can be entertained.
96. Under the Right to Information Act, the locus standi of the person is of no avail. Any citizen can ask for any information, which is not protected under the relevant clauses. of exemption. The Public Information Officer is under the legal duty to supply the information so asked for.
97. Sub-clause (2) of Section 6 Itself says that an applicant making request for information shall not be required to give any reason for seeking the information or any other personal details except those that may be necessary for contacting him. This leaves no room of doubt that the information cannot be refused on the ground that the person asking for information is not a bona fide person and it cannot also be enquired from him as to why he is seeking the information.
98. The view, therefore, expressed by the Gujarat High Court in this regard without adverting to the scheme of the Act, 2005 and without noticing the provisions of Section 2(j) and Section 3 of the Act, are contrary to law. Section 2(j), says that the 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 Section 3, says that subject to the provisions of this Act, all citizens shall have the right to Information.
99. We thus find that the Gujarat High Court did not take Into consideration the provisions of Section 2(j) and Section 3 and also Sub-clause (2) of Section 6, which specifically prohibits from making any enquiry from the applicant for giving reasons for seeking the Information or any other personal details except his address, where he could be contacted.
100. Thus, the view expressed by the Gujarat High Court in respect of the locus standi of the applicant, asking for any information cannot be said to be a binding precedent.
101. We, therefore, with utmost regard to the learned Judge of the Gujarat High Court, are unable to subscribe to the said view.
102. Gujarat High Court also held that the information cannot be directed to be given under Section 18, but recourse can be taken in appeal for having the information, which has been either illegally withheld or has been specifically refused.
103. For finding out the true meaning, import and scope of Section 18, we have to make purposive interpretation of the provision, keeping in view the object and purpose of the Act.
104. On seeing the scheme of the Act, the relevant extracts of which, we have reproduced earlier, it is beyond doubt that the object and purpose of the Act is to provide information to the citizen (applicant), who makes a request for having such an information, which can be given under the Act and which does not stand exempted or so to say is not prohibited from being furnished under the provisions of the Act.
105. Normal rule of interpretation is, to give such meaning to the provisions of the Act, which furthers the object of the Act and does not restrict its applicability so as to defeat its very object and purpose. The intention in making a provision, the principle which guided for such an enactment and the mischief which is intended to be rectified cannot be lost sight of, while discovering the true meaning and import of the provisions of the Act.
106. While Interpreting any statute, normally a literal construction of the provision has to be made and if the language is clear, unambiguous and meaningful, which forwards the cause of enactment, the Court would restrain itself from making an effort to interpret the provisions in any different manner, which would have the effect of amending the rule or rewriting the provision. Tire literal rule of construction is the normal rule of interpretation, which does not infringe upon the statute or the statutory provision and carries forward the intention, object and purpose of the Act. Any hardship to any person or any lacuna in the Act can also not be filled in, unless of course the provision militates against the object and purpose for which it has been enacted or leads to absurdity.
107. In the case of A.N. Roy, Commissioner of Police and Anr. v. Suresh Sham Singh : 2006CriLJ3614 , the Supreme Court observed as under:
It is now well-settled principle of law that the Court cannot enlarge the scope of legislation or intention when the language of the statute is plain and unambiguous. Narrow and pedantic construction may not always be given effect to. The Courts should avoid a construction, which would reduce the legislation to futility. It is also well-settled that every statute is to be interpreted without any violence to its language. It is also trite that when an expression is capable of more than one meaning, the Court would attempt to resolve the ambiguity in a manner consistent with the purpose of the provision, having regard to the great consequences of the alternative constructions.
108. In the case of Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector and E.T.I.O. : AIR2007SC1984 , held that only in case a literal interpretation gives rise to anomalous situation, purposive interpretation may be resorted to, and again in the case of S.B. Bhattacharjee v. S.D. Majumdar (2007) 10 SCC 513, it was said that for giving effect to the legislative intent in the face of draftsman's unsklllfulness or ignorance of law, the Court must consider executive instructions or office memorandum as executive interpretation based on the doctrine of contemporanea expositio.
109. In the case of Raghunath Rai Bareja v. Punjab National Bank : (2007)2SCC230 , the Supreme Court held that the literal rule of interpretation really means that there should be no interpretation. In other words, we should read the statutes as it is, without distorting or twisting its language. The literal rule of interpretation is not only followed by Judges and lawyers, but it is also followed by the layman in his ordinary life. The meaning of the literal rule of interpretation is simply that we mean what we say and we say what we mean. The first and foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. The other rules of interpretation, e.g., the mischief rule, purposive interpretation, etc. can only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally would nullify the very object of the statute. Where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule. Even if the literal interpretation results in hardship or inconvenience, it has to be followed.
110. The Supreme Court had an occasion to consider the principle of purposive interpretation in the case of State of U.P. and Ors. v. Jeet S. Bisht and Anr. : (2007)6SCC586 , wherein two Hon'ble Judges have delivered the judgment separately, but the outcome of the petition is the same, though reference to larger Bench has been made, on the reasoning given by them.
In paragraphs 72 and 73, Justice S.B. Sinha, held as under:
72. With the advent of globalisation, we are witnessing a shift from formalism to a value-laden approach to law. In the contemporary scholarship, especially with the decimation of law as purely an autonomous discipline (with the emergence of cross-cutting realms such as Law and Economics, Law and Philosophy, Law and Society, I.P.R. et al), we see that laws embody a goal, which may have its provenance in sciences other than law as well. It is no more the black letter in the law which guides the interpretation but the goal which is embodied by the particular body of law, which may be termed as the rationality of law.
73. Law, in its value-laden conception, is not entirely endogenous in its meaning and purpose, the construction thereof also depends on the statement of purport and object. There is a spillover of the aforementioned shift in philosophy of law to statutory interpretation. Purposive interpretation, of lately, has gained considerable currency, which is relevant for the sake of maximising the efficiency in respect to the point behind the rule. There may be a situation when purposive interpretation is required even in the context of deciphering the constitutional mandate by invoking the notion of active liberty discovered by Justice Stephen Breyer of the American Supreme Court. This is the precise role which was exhorted by Bruce A. Ackerman in the famous Storrs Lecture.
111. Despite reference to larger Bench, the rule of purposive interpretation, can still be made applicable to understand the provisions in the instant case.
112. Section 18 of the Act is a provision, which allows the applicant who has been refused information or who believes that complete information has not been given, or who has been denied the information by simply delaying the information, to make a complaint to the Commission, Central or State, as the case may be, who would make an enquiry into the said complaint.
113. Section 19(8)(a) is in general terms, which confers power upon the Commission, may be the Central or the State, to require the public authority to take any step as may be, necessary to secure compliance under the said Act including providing access in a particular form to the information asked for. This means that the Commission can direct for supplying the necessary information in such form, as may be required, therefore, there cannot be any dispute that in the appeal proceedings, the information which has not been given by the Public Information Officer can be directed to be supplied.
114. What would be the position, in case a complaint has been made under Section 18 of the Act, regarding refusal of information etc. is a matter which requires consideration.
115. Section 18 is a provision which gives a statutory avenue for vindicating the grievance of the persons, who asked for such information, but the same has not been given. To keep a check and control upon the functioning of the Public Information Officers, so that they may not go berserk and violate the statute, capriciously and arbitrarily, Section 18 has been enacted. In case the Commission finds that the concerned officer has violated the provisions of the Act, in discharging the duties under the Act and has illegally, wrongfully or mala jldely refused the information, he can be subjected to a penalty, which may be, namely, Rs. 250 per day, till the information is provided or to a maximum of Rs. 25,000.
116. In case the intention of the provision of the aforesaid Act was only to punish the guilty information officer, there would have been no occasion under Section 18(3) to confer powers upon the Commission, which are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908), requiring discovery and inspection of documents and requisitioning any public record or copies thereof from any Court or office, and for specifically providing under Sub-clause (4) of Section 18 that notwithstanding anything inconsistent contained in any other Act of Parliament or State Legislature, as the case may be, the Central Information Commission or the State Information Commission, as the case may be, may, during the inquiry of any complaint under this Act, examine any record to which this Act applies which is under the control of the public authority, and no such record may be withheld from it on any grounds.
117. The obvious intention and the purpose of the aforesaid powers being vested with the Commission in the matter of enquiry is to confer all such powers upon the Commission, which can compel the erring officers to disclose and supply the information, which cannot be withheld for any reason whatsoever under the provisions of the Act. Of course, an enquiry on such a complaint naturally would mean to enquire as to whether the information was rightly refused, delayed or was incorrectly given, and for that matter, the power, as given in Sub-clauses (3) and (4) of Section 18 the Act, have to be used and on finding that the information was wrongly refused or illegally withheld or was incorrectly or mala fidely refused, the Commission cannot be stopped from issuing direction for giving the necessary information.
118. The purpose of holding enquiry would be of no meaning if only punishment is given to the erring officer, as it would not serve the purpose of the Act and the power so conferred upon the Commission, requiring requisitioning of any public record or copies thereof from any Court or office, shall also have only a limited purpose to find out as to whether the punishment should be awarded to the erring officer or not. This is not the intention of the Act or the provisions of Section 18.
119. Section 20 which prescribes the penalties, takes into account both complaint' and appeal', says that the Central Information Commission or the State Information Commission, as the case may be, while deciding any complaint or appeal, if satisfied that the application has wrongly been refused from being entertained or the information has not been given for the reasons given therein, impose the penalty as prescribed, meaning thereby that at the time of either deciding a complaint or an appeal, the Commission has the power to impose penalty and that this penalty would be imposed till the application is received or information is furnished. This clarifies that the penalty can be imposed by the Commission while deciding the complaint or while deciding the appeal. Such penalty can be imposed for such term, till the application is received or information sought for is given, as the case may be, @ Rs. 250 each day, subject to a maximum of Rs. 25,000.
120. So far the power to issue direction for receiving the application or for supplying the information is concerned, it is for one and the same purpose, i.e., for supplying the correct information to the applicant, if it does not stand exempted under the Act. In this regard, there can be no distinction, when the Commission enquires into a complaint or hears an appeal under the aforesaid power.
121. This view also stands fortified by the fact, that Section 20, which gives the consequence of enquiry being held under Section 18, on a complaint being received, says in Sub-clause (1) '...... It shall impose a penalty of Rs. 250 per day, till the information is provided or to a maximum of Rs. 25,000', meaning thereby that the penalty is to be imposed for compliance of the provisions of the Act.
122. The aforesaid clause in Inverted commas, means beyond doubt that the Commission on being satisfied about the complaint and while deciding any complaint or appeal, if it is of the opinion that without any reasonable cause, the application was refused, or the necessary information has not been given or the same has not been furnished within time or has been mala, fidely denied or the knowingly incorrect information has been given etc. etc., only then it shall impose the penalty aforesaid. Since the penalty of Rs. 250 per day is to be imposed till the application is received by the Public Information Officer, Central or State, as the case may be, if they had refused to accept application or the information asked for is furnished, it is apparent, that the very purpose of this penal provision is to make the officer concerned to supply the information.
123. In a given case, where a complaint has been made that the information has not been furnished, the penalty of Rs. 250 each day, shall be imposed till the information is furnished, to a maximum of Rs. 25,000, which means that even while dealing with the complaints, the Commission can ask for the disclosure of the information, otherwise, the provision would not have contained the phrase aforesaid, which prescribes the penalty of Rs. 250 each day, till application is received or information is furnished, as the case may be.
124. The intention of the provision is clear. The penalty is to be imposed for the period during which either the application is not received or the information is not given, but the moment, the application is accepted or information is given, as the case may be, the penalty cannot be imposed any further. Of course, the maximum limit of penalty is Rs. 25,000, but that does not in any way fetter the power of the Commission to issue a direction for furnishing the information. The maximum amount of penalty does not qualify the main substantive provision, which says that it shall be imposable till the information is given or the application is received, as the case may be.
125. In a given case where no appeal has been filed or even after first appeal, the information has not been given and if no second appeal has been filed, but a complaint has been made, it would be the discretion of the Commission to pass appropriate orders for furnishing of the information, in case the Commission is satisfied and if it is established from the record that the information was illegally refused or not given correctly etc. etc.
126. In the absence of any prohibition under Section 18 and there being no other provision, which puts any embargo or curtails the jurisdiction of the Commission to order for supply of the information not duly supplied, or to ask for receiving of the application, which has been wrongly refused from being entertained, the provisions of Section 18 has to be read in a manner, which does not have the effect of curtailing the jurisdiction of the Commission, which otherwise can be exercised under the provisions of the Act.
127. Section 18 is a substantive provision regarding lodging and enquiring into a complaint, whereas Section 20 is the consequence of such an enquiry.
128. The whole purpose of making an enquiry on a complaint being given by the affected person, shall stand defeated, if the two provisions are read in isolation or they are given a meaning which does not further the object of the Act. From a harmonious construction of the aforesaid provisions keeping in mind the purpose for which they have been enacted, it can be safely concluded that the powers of the Commission under Section 18 are not restricted only to make enquiry and award punishment, but they also extend for issuing direction for receiving the application or for giving the necessary information under the provisions of the Act. Any other interpretation would not be in consonance with the scheme of the Act and shall also amount to restricting and curtailing the power of the Commission by judicial interpretation.
129. The Act contains two types of information ; first which is to be suo motu provided without even being asked for under Section 4 and the other information, which is to be given when asked for. Of course, there is a third classification, which exempts certain information from being disclosed and a corollary to the said exemption is such information, which though stands protected, but can be disclosed by the competent authority, if satisfied that it is in larger public interest to disclose such information.
130. Any interpretation to any of the provisions of the Act, if leads to absurdity or may lead to defeat the very purpose of the Act, has to be avoided. There is no attempt to twist the words or the phraseology used, but for correct interpretation of provision of Section 18, it cannot be read in isolation, but has to be seen in the light of the consequences of a complaint of Section 18, as given in Section 20 of the Act, besides also the purpose and object of the Act for which it has been enacted.
131. It shall be a futile exercise in case the enquiry as contemplated, on a complaint is made, but remains confined only to the award of punishment with no consequence of furthering the object of the Act, i.e., without requiring the Public Information Officer to supply the information asked for.
132. The meaning, intention and import, therefore, is clear that if a complaint is made and if the Commission is satisfied that the information has wrongly been withheld or has been refused, etc., then in addition to the penal actions prescribed it can also order for supply of such an information.
133. We, therefore, with deep respect are unable to concur with the view expressed by the Gujarat High Court to the contrary in the case of Reliance Industries Ltd. v. Gujarat State Information Commission and Ors. : AIR2007Guj203 , with respect to the scope of Section 18.
134. In view of above, we are of the considered opinion that neither the information asked for regarding distribution of the discretionary fund viz. in the instant case, information regarding the details of the persons, who have been given an amount of more than Rs. 1 lac can be refused nor it stands exempted under Section 8(j) of the Act.
135. We are also of the view that the Commission while enquiring into the complaint under Section 18, can issue necessary directions for supply/disclosure of the information asked for, in case the Commission is satisfied that the information has been wrongly withheld or has not been completely given or incorrect information has been given etc., which information otherwise is liable to be supplied under the provisions of the Act.
136. Before parting, we will also like to put on record that all the information regarding the Chief Minister's Discretionary Fund, including the information regarding the persons, who have been granted any amount from the discretionary fund with their category and the amount paid/disbursed, may be treated such an information, which requires to be made available to the public in terms of Section 4 of the Act. The public has a right to know about the disbursement of the Chief Minister's Discretionary Fund to the persons and the amount which has been paid with a further information that whether the amount has been properly utilized in the given time or not.
137. We, however, refrain ourselves from issuing any such directive, but we hope and trust that the State Government shall look into the matter and exercise its discretion, particularly when there are specific rules, duly formulated by the Governor, prescribing for audit by the Accountant General, U. Barathokey v. Chairman U.P. of the discretionary fund and also other provisions regarding the entitlement and utilization etc., which we have already discussed above.
138. We have been persuaded to make these observations in accordance with the provisions of the Rules of 1999, Sub-clause (xvii) of Section 4(1)(b) and also Sub-clause (2) of Section 4 of the Right to Information Act, 2005, which says that it shall be a constant endeavour of every public authority to take steps in accordance with the requirements of Clause (b) of Sub-section (1) of Section 4, to provide as much information suo motu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information.
139. We, thus do not find any illegality in the impugned orders dated 12.12.2007, 18.1.2008 and 15.2.2008, contained in Annexures-1, 2 and 3 respectively to the writ petition, passed by the Commission nor we find any reason for the petitioner not to supply the information asked for.
140. The writ petition is devoid of merits and is dismissed.