Metropolitan Cooperative Housing Society Ltd. and anr. Vs. the State Information Commission and ors. - Court Judgment

Excerpt:
- mining direction to state government to consider all applications afresh in light of interpretation of section 11 of the act and rules 35, 59 and 60 of mc rules main issue : whether the state government's recommendation dated 06.12.2004 and the proceedings of the chief minister are contrary to the provisions of section 11 of the act and rules 59 and 60 of mc rules and not valid in law. a perusal of the proceedings of the chief minister shows that no clear reasons were given to show as to why jindal and kalyani were preferred over other applicants.[para 18]--the proceedings of the chief minister, at no level, consider the various guiding criteria mentioned in section 11(3)[para 19] b) whether the respondent-jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- applications made prior to the notification cannot be entertained because they are premature.[para 21] if such premature applications are allowed to be entertained, it would result in the state government giving out mining leases to favoured persons without notice to the general public.[para 53] c) whether the order of the high court of karnataka in ziaulla sharieff's case permit the consideration of the respondent-jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. the order of the high court of karnataka in ziaulla sharieff's case does not permit the consideration of jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) whether rule 35 of the mc rules justify the recommendation of the state government in favour of the respondents-jindal and kalyani -- as discussed above, rule 35 only permits the state government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) whether the criterion of "captive consumption" referred to in tata iron and steel co. ltd. vs. union of india, (1996) 9 scc 709, have any application in this case despite not being one of the factors referred to in section 11 (3) of the mmdr act or rule 35 of the mc rules -- we have already held that section 11(3) specifies the matter relevant for purposes of second proviso to section 11(2). we also referred to the committee's report. in accordance with the recommendation in the said report, section 11(3)(d) was added as part of the substitution of section 11 in the year 1999. sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". even the residuary clauses in section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. this is fortified by decision of this court in bsnl ltd. & anr. vs. bpl mobile cellular ltd. & ors., (2008) 13 scc 597, para 45.[para 35] f) whether factors such as the past commitments by the state government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the mmdr act and the mc rules constituting a complete code -- it is not open to the state government to justify grant based on criteria that are de hors to the mmdr act and the mc rules. the exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. it is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] in view of the specific parliamentary declaration as discussed and explained by this court in various decisions, there is no question of the state having any power to frame a policy de hors the mmdr act and the rules.[para 25] central and the state government act as mere delegates of parliament while exercising powers under the mmdr act and the mc rules.[para 27] g) whether the recommendation in favour of respondents-jindal and kalyani saved by the operation of the law of equity. the law of equity cannot save the recommendation in favour of jindal and kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. this principle was clearly stated by this court in the cases of kedar lal vs. hari lal sea, (1952) scr 179 at 186 and raja ram vs. aba maruti mali (1962) supp. 1 scr 739 at 745. it is clear that where the field is covered expressly by section 11 of the mmdr act, equitable considerations cannot be taken into account to assess jindal and kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) whether the learned single judge as well as the division bench are justified in arriving at such conclusion. though the learned single judge in his order dated 07.08.2008 quashed the communication/recommendation of the state government dated 06.12.2004 proposing to grant mining lease to jindal and kalyani, however, the learned single judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire notification no. ci.16:mmm.2003 dated 15.03.2003. in our view, while approving earlier part of his order and quashing the communication/recommendation of the state government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the act and the rules. the said observations/directions are deleted.[para 55] the division bench has erred in concluding that the jindal's application made prior to the notification can be entertained along with the applications made pursuant to the said notification because it is not section 11(4) which covers the said notification under rule 59(1) but the first proviso to section 11(2). as a matter of fact, the division bench did not even mention section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single judge hinged on how section 11(4) would be rendered otiose and redundant if the first proviso to section 11(2) was taken as governing the consideration of applications under a notification pursuant to rule 59(1) [para 52] i) whether it is advisable to remit it to the central government. [para 6] the central government considers only the materials forwarded by the state government along with its recommendation. as rightly pointed out, if the recommendation of the state government cannot be upheld in law, all consequential orders including the subsequent approval by the central government are also liable to be quashed. we reject the request for remitting the matter to the central government for its decision. --[para 56] held : in the light of the above discussion, the impugned order of the division bench of the high court dated 05.06.2009 in writ appeal no. 5084 of 2008 and allied matters as well as the decision of the state government dated 26/27.02.2002 and the subsequent decision of the central government dated 29.07.2003 are quashed. we direct the state government to consider all applications afresh in light of our interpretation of section 11 of the act and rules 35, 59 and 60 of mc rules and make a recommendation to the central government within a period of four months from the date of receipt of the copy of this judgment. it is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the state government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. the state government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. all the appeals are allowed to the extent mentioned above. no costs.[para 57,58]dipankar datta, j.1. the first petitioner is a co-operative society, registered in accordance with the provisions of the bengal cooperative societies act, 1940, since repealed and replaced by the west bengal cooperative societies act, 1983 (hereafter the act). the second petitioner is the secretary of the first petitioner.2. the fifth respondent is a member of the first petitioner. by his letter dated 15.7.2008 addressed to the second petitioner, he prayed for supply of certified copy of the minutes of the meeting of the board of directors of the first petitioner held in the month of june, 2008. in praying so, the second petitioner exercised his right conferred by section 40 of the act read with rule 68 of the west bengal cooperative societies rules, 1987 (hereafter the rules). he expressed his desire to collect the certified copy on 27.9.2008 and undertook to pay the prescribed charges at the time of collection thereof.3. the second petitioner did not accede to such prayer of the fifth respondent. finding no option, the fifth respondent by his letter dated 9.9.2008 requested the registrar of cooperative societies, government of west bengal to furnish him information under the right to information act, 2005 (hereafter the rti act) and the rules framed thereunder. in particular, he sought for certified copy of the minutes of the meeting of the board of directors held in the month of june, 2008 upon payment of prescribed charges.4. the request of the fifth respondent for information under the rti act was forwarded by the deputy registrar of cooperative societies, the third respondent, to the second petitioner vide letter dated 12.9.2008. soon thereafter the petitioner received a notice dated 21.10.2008 seeking to convey to them that the fifth respondent had filed a first appeal under the rti act feeling aggrieved by non-supply of certified copy of the aforesaid minutes and that the appeal would be heard by the joint registrar of co-operative societies being the appellate authority, the fourth respondent herein, on 7.11.2008. the fourth respondent heard the fifth respondent and the second petitioner on 7.11.2008. submission of the learned advocate appearing for the petitioners before the fourth respondent to the effect that the fifth respondent had no right to seek information under the rti act and that he ought to avail the provisions of the act and the rules for solution in this regard was recorded. his further submission that the state public information officer, co-operation directorate has no power to direct the first petitioner to provide information was also recorded.5. upon hearing the parties, the fourth respondent passed the following order:now, therefore, on the basis of facts and circumstances as above, it is hereby ordered that the secretary, metropolitan cooperative housing society ltd., shall supply the information with a certified copy of the meeting of the board of directorate of the society held in the month of june, 2008 within 15 days from the date of hearing to the spio, cooperation directorate and the spio, cooperation directorate in term shall communicate the same to the appellant within 7 days from the date of receipt of the information along with the certified copy of the said board meeting received from the above named society.6. feeling aggrieved by the said order, the petitioners preferred a second appeal before the state information commission, the first respondent herein. at the same time, the fifth respondent also preferred a second appeal before the first respondent.7. the second appeal filed by the petitioners was not entertained by the first respondent. the secretary of the first respondent by his letter dated 13.1.2009 communicated to the second petitioner as follows :sub: an appeal under section 19(3) of the rti act-case of shri salil kumar sensir,i am directed to refer to your letter dated 31.12.2008 on the subject noted above and to say that information seeker has only been allowed to prefer an appeal before the commission under section 19(3) of the rti act against the decision taken by the appellate authority of the concerned public authority under section 19(1) of the act.this is for your information and necessary action.8. the second appeal filed by the fifth respondent, however, was taken up for consideration by the first respondent. objection raised on behalf of the petitioners that the first petitioner is not a public authority within the meaning of the rti act was overruled. ultimately, the state chief information commissioner, the second respondent passed an order on 25.6.2009 allowing the second appeal of the fifth respondent. the operative part of the order reads thus:the commission therefore orders that the secretary, metropolitan co-operative housing society ltd. shall within 7 days from the date of receipt of this order furnish a certified copy of the meeting of the minutes of the bod held in the month of june, 2008 to the spio of cooperation directorate. non-compliance of this order of the commission shall be brought to the notice of the commission forthwith by the officers of the public authority concerned. the spiio shall, after receiving such a certified copy, proceed in accordance with the direction contained in the order of the appellate authority.9. challenge in this writ petition is to the orders dated 13.1.2009 and 25.6.2009 extracted supra.10. mr. kundu, learned advocate representing the petitioners contended that both the orders impugned are thoroughly unsustainable in law. he referred to section 19 of the rti act to contend that a second appeal under sub-section (3) thereof could be filed by any person aggrieved by the order of the first appellate authority and that right to file second appeal is not confined only to the information seeker who might be aggrieved either by the inaction or the decision of the first appellate authority. while assailing the order dated 26.8.2009 passed by the second respondent, he contended that no second appeal is maintainable if the information sought for is directed to be given by the first appellate authority. in the present case, the first appellate authority had granted the fifth respondent relief, as claimed, and hence the second appeal filed by him was not maintainable. the second respondent, it was submitted, committed gross jurisdictional error in entertaining the second appeal of the fifth respondent.11. that apart, on merits of the order dated 25.6.2009 he urged that a co-operative society like the first petitioner is not a public authority within the meaning of section 2(h) of the rti act and, therefore, the direction for supply of information given by the second respondent is absolutely unauthorized.12. in support of his submission that a co-operative society is not a public authority within the meaning of the rti act, mr. kundu relied on the decision of a learned single judge of the karnataka high court reported in air 2009 karnataka 1, datta prasad cooperative housing society ltd. v. the karnataka state chief information commissioner and anr.13. accordingly, order setting aside the impugned orders was claimed by him.14. having heard mr. kundu, i have not considered it necessary to call upon learned advocates representing the respondents to answer although i find his contentions unexceptionable.15. mr. kundu is justified in his contention that section 19 of the rti act confers right on a party aggrieved by the decision of the first appellate authority or the inaction of the first appellate authority to give a decision to file a second appeal before the state information commission. since the decision of the first appellate authority was adverse to the interest of the first petitioner and the petitioners considered themselves to be persons aggrieved, i hold that the petitioners did have a right to prefer a second appeal. consequently, their appeal ought to have considered by the state information commission on merits. the impugned order dated 13.1.2009 is unsustainable in law.16. i need not on this petition decide whether the second respondent correctly decided the issue as to whether the first petitioner is a public authority within the meaning of the rti act or not, for the reason that the appeal before him was not competent. a right of appeal must be traceable in a statutory provision is settled law. section 19 of the rti act does not confer any right on an information seeker to prefer either first appeal or second appeal if information as claimed by him is directed to be furnished by the original authority or the first appellate authority, as the case may be. here the first appellate authority allowed the claim of the fifth respondent. if anyone could be regarded as person aggrieved by the decision of the first appellate authority, it were the petitioners. the fifth respondent having succeeded in his claim before the first appellate authority, he could not have filed second appeal. the order dated 25.6.2009 is also not sustainable in law on this sole ground.17. in normal circumstances, a writ of certiorari quashing the orders impugned would have followed as a matter of course, but having regard to the special facts of this case not only am i disinclined to grant relief as prayed for by the petitioners but i propose to dismiss the writ petition on the principle that writ remedy is not intended to facilitate avoidance of obligations voluntarily incurred.18. section 40 of the act and rule 68 of the rules provide as under:40. books and documents to be open to inspection by members.- every co-operative society shall keep open to inspection by its members, free of charge, during office hours, at its address, such books and other documents as may be prescribed and certified copies thereof shall be supplied by it to its members on payment of the prescribed fee.68. books and documents to be kept open for inspection by members.- (1) under section 40, every co-operative society shall keep open for inspection by its members the following books and documents, namely-******(xiv) minute books in respect of general meeting and board meetings;******(2) certified copies of the books and documents mentioned in sub-rule (1) shall be supplied to members on payment of fee at the rate of two rupees for each foolscap page typed in double spaces.19. a member of a cooperative society registered in accordance with the act has the absolute right to seek copies of minutes of meetings of the board of directors subject to compliance with other formalities. the fifth respondent applied for certified copy and also undertook to bear the charges therefor. the certified copy of the minutes of the meeting held in june, 2008, admittedly has not been furnished to him. no reason has been specified in the petition as to why the same has not been furnished. it is not the case of the petitioners that the fifth respondent is not a member of the first petitioner and, therefore, is not entitled to certified copy. the statutory obligation of furnishing certified copy, therefore, has not been discharged by the first petitioner without any reason whatsoever. even though the impugned orders are illegal, writ remedy being discretionary this court finds no reason to interfere for the petitioners themselves have to blame for the situation they find themselves in.20. in declining relief to the petitioners, i have drawn inspiration from the decisions of the supreme court in roshan deen v. preeti lal : (2002) 1 scc 100 and mohammad swalleh v. third additional district judge, meerut : (1988) 1 scc 40.21. a passage from roshan deen (supra) reads:12. we are greatly disturbed by the insensitivity reflected in the impugned judgment rendered by the learned single judge in a case where judicial mind would be tempted to utilize all possible legal measures to impart justice to a man mutilated so outrageously by his cruel destiny. the high court non-suited him in exercise of a supervisory and extraordinary jurisdiction envisaged under article 227 of the constitution. time and again this court has reminded that the power conferred on the high court under articles 226 and 227 of the constitution is to advance justice and not to thwart it vide state of u.p. v. district judge, unnao : (1984) 2 scc 673. the very purpose of such constitutional powers being conferred on the high courts is that no man should be subjected to injustice by violating the law. the lookout of the high court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. if justice became the by-product of an erroneous view of law the high court is not expected to erase such justice in the name of correcting the error of law.22. in mohammad swalleh (supra), an order of the district judge passed on an appeal against an order of the prescribed authority, which was palpably without jurisdiction (since no appeal lay before him), was not interdicted by the supreme court by holding as follows:7. it was contended before the high court that no appeal lay from the decision of the prescribed authority to the district judge. the high court accepted this contention. the high court finally held that though the appeal laid (sic no appeal lay) before the district judge, the order of the prescribed authority was invalid and was rightly set aside by the district judge. on that ground the high court declined to interfere with the order of the learned district judge. it is true that there has been some technical breach because if there is no appeal maintainable before the learned district judge, in the appeal before the learned district judge, the same could not be set aside. but the high court was exercising its jurisdiction under article 226 of the constitution. the high court had come to the conclusion that the order of the prescribed authority was invalid and improper. the high court itself could have set it aside. therefore in the facts and circumstances of the case justice has been done though, as mentioned hereinbefore, technically the appellant had a point that the order of the district judge was illegal and improper. if we reiterate the order of the high court as it is setting aside the order of the prescribed authority in exercise of the jurisdiction under article 226 of the constitution then no exception can be taken. as mentioned hereinbefore, justice has been done and as the improper order of the prescribed authority has been set aside, no objection can be taken.23. the effect of the impugned orders is that of sending a reminder to the petitioners to discharge their statutory obligations and not to violate the law. it is immaterial that legally speaking, the same are not valid orders. the petitioners ought to realize that being insensitive to the citizen's need by violating the statute does not pay in the long run. writ remedy cannot be claimed as of right only on making out a legal point. the object of the statute, which the petitioners are bound to follow, as well as public interest, must be foremost in the mind of the writ court before it proceeds to grant relief. so long plausible reason for not supplying the certified copies exists, i consider it to be improper on my part to encourage writ petitions of this nature which are filed to subvert both law and justice.24. no case for exercise of writ powers has been made out. the writ petition, consequently, stands dismissed.25. there shall be no order as to costs.26. urgent photostat certified copy of the judgment and order shall be given to the applicants, if applied for, as early as possible.