Case Note & Summary
The Bombay High Court at Goa disposed of a batch of writ petitions challenging orders under the Right to Information Act, 2005 (RTI Act) that directed Comunidades (village communities in Goa) to provide information to applicants. The lead case was Writ Petition No. 1177 of 2018, where the respondent no.1 sought information from the Comunidade of Pilerne. The Administrator initially stated the information was held by another authority, but later the Comunidade refused, claiming the RTI Act did not apply. The First Appellate Authority allowed the appeal, holding the clerk or escrivao of the Comunidade as a deemed Public Information Officer (PIO). The Goa State Information Commission dismissed the second appeal as not maintainable. The petitioners challenged the First Appellate Authority's order, arguing that Comunidades are not 'public authorities' under Section 2(h) of the RTI Act. The Court examined the history of Comunidades under the Code of Comunidades, noting they are governed by a code enacted under Portuguese rule and are under administrative tutelage of the State under Article 5 of the Code. However, the Court held that this tutelage does not amount to ownership, control, or substantial financing by the government, which are the criteria for a 'public authority' under Section 2(h). The Court relied on precedents including Thalappalam Service Cooperative Bank Ltd. v. State of Kerala and People Welfare Society v. State Information Commissioner, which held that entities under government regulation or supervision are not necessarily public authorities. The Court also rejected the argument that Sections 5(4) and 5(5) of the RTI Act could make an officer of a non-public authority a deemed PIO. Consequently, the Court quashed the impugned order of the First Appellate Authority dated 23.11.2017 and the order of the Goa State Information Commission dated 30.08.2018, and allowed the writ petitions.
Headnote
A) Right to Information Act - Definition of Public Authority - Section 2(h) - Comunidades not public authorities - The issue was whether Comunidades, which are village communities governed by the Code of Comunidades, fall within the definition of 'public authority' under Section 2(h) of the RTI Act. The Court held that mere administrative tutelage of the State over Comunidades does not make them public authorities, as they are not owned, controlled, or substantially financed by the government. The orders directing the Comunidade to provide information were quashed. (Paras 1-10)
B) Right to Information Act - Deemed Public Information Officer - Sections 5(4) and 5(5) - Cannot apply to non-public authorities - The First Appellate Authority had held that the clerk or escrivao of the Comunidade is a deemed Public Information Officer under Sections 5(4) and 5(5) of the RTI Act. The Court rejected this, holding that these provisions only apply to public authorities, and since Comunidades are not public authorities, no officer of the Comunidade can be deemed a PIO. (Paras 4-7)
C) Code of Comunidades - Administrative Tutelage - Article 5 - Does not confer public authority status - The Court examined the history and governance of Comunidades under the Code of Comunidades, noting that Article 5 places Comunidades under administrative tutelage of the State. However, this tutelage is protective and guiding in nature, not control, and does not transform Comunidades into public authorities under the RTI Act. (Paras 8-9)
Issue of Consideration
Whether the Right to Information Act, 2005 applies to Comunidades in Goa, i.e., whether a Comunidade is a 'public authority' under Section 2(h) of the RTI Act.
Final Decision
The writ petitions are allowed. The impugned order dated 23.11.2017 passed by the First Appellate Authority and the order dated 30.08.2018 passed by the Goa State Information Commission are quashed and set aside.
Law Points
- Right to Information Act
- 2005
- Section 2(h) definition of public authority
- administrative tutelage does not amount to control
- Comunidades are not public authorities
- deemed Public Information Officer under Section 5(4) and 5(5) cannot be imposed on non-public authorities
Case Details
2024 LawText (BOM) (7) 267
Writ Petition No. 1177 of 2018 and connected matters
Mr. John A. Lobo, Advocate for the Petitioner in WP No. 1004 of 2017. Mr. S. Priolkar, Additional Government Advocate for the Respondent no.1 in WP No. 1004 of 2017 and for Respondent no.2 in WP No. 1177 of 2018. Mr. Y. V. Nadkarni, Advocate with Ms. Simran Khadilkar, Advocate for the Petitioner in WP No. 1177 of 2018.
Comunidade of Pilerne and others
Harihar V. Chodankar and others
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Nature of Litigation
Writ petitions challenging orders under the Right to Information Act, 2005 directing Comunidades to provide information.
Remedy Sought
Quashing of the order dated 23.11.2017 passed by the First Appellate Authority and the order dated 30.08.2018 passed by the Goa State Information Commission, and a declaration that the RTI Act does not apply to Comunidades.
Filing Reason
The petitioners, Comunidades, were directed by the First Appellate Authority to provide information under the RTI Act, which they contended was not applicable to them as they are not public authorities.
Previous Decisions
The First Appellate Authority allowed the appeal on 23.11.2017 holding the clerk or escrivao of the Comunidade as a deemed PIO. The Goa State Information Commission dismissed the second appeal on 30.08.2018 as not maintainable. Earlier, a writ petition (WP No. 556/2017) had set aside the first appellate order and remanded for fresh consideration.
Issues
Whether a Comunidade is a 'public authority' under Section 2(h) of the Right to Information Act, 2005.
Whether an officer of a Comunidade can be deemed a Public Information Officer under Sections 5(4) and 5(5) of the RTI Act.
Submissions/Arguments
Petitioners argued that Comunidades are not public authorities under Section 2(h) of the RTI Act as they are not owned, controlled, or substantially financed by the government. They relied on Thalappalam Service Cooperative Bank Ltd. v. State of Kerala and People Welfare Society v. State Information Commissioner.
Respondent no.1 argued that under Sections 5(4) and 5(5) of the RTI Act, the escrivao/clerk/Administrator is duty bound to supply information, and relied on Attorney of Communidade v. Harihar V. Chodankar.
Ratio Decidendi
A Comunidade is not a 'public authority' under Section 2(h) of the Right to Information Act, 2005, as it is not owned, controlled, or substantially financed by the government. Mere administrative tutelage under Article 5 of the Code of Comunidades does not amount to control. Consequently, no officer of a Comunidade can be deemed a Public Information Officer under Sections 5(4) and 5(5) of the RTI Act.
Judgment Excerpts
The issue that arises in these petitions is whether the Right to Information Act, 2005 (‘RTI Act’, for short) applies to Petitioner-comunidades.
Learned Counsel for the petitioner stated that the petitioner is not a Public Authority under the RTI Act and hence the Comunidade is not covered under the provisions of the RTI Act.
The provisions in Article 5 of the Code of Comunidades, which provide that the Comunidades shall be under the administrative tutelage of the State, cannot be interpreted to mean that the State Government... can force the Comunidade to give up its property...
Procedural History
Respondent no.1 filed an RTI application to the Administrator of Comunidade, North Zone, Mapusa. The Administrator stated the information was held by another authority. The petitioner informed the Administrator that the RTI Act does not apply. Respondent no.1 filed a first appeal under Section 19, and the petitioner was added as a respondent. The First Appellate Authority allowed the appeal on 11.03.2016, directing the petitioner to provide information. The petitioner filed a second appeal before the Goa State Information Commission, which dismissed it on 21.03.2017 as not maintainable. The petitioner filed WP No. 556/2017, which was disposed of by setting aside the first appellate order and remanding for fresh consideration. The First Appellate Authority again allowed the appeal on 23.11.2017. The petitioner filed a second appeal, which was dismissed on 30.08.2018 as not maintainable. The petitioner then filed the present writ petition.
Acts & Sections
- Right to Information Act, 2005: Section 2(h), Section 5(4), Section 5(5), Section 19
- Code of Comunidades: Article 5
