IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.17656 of 2016.
Date of decision: August 29, 2016.
Pardeep Kumar Rapria, Advocate .....Petitioner.
Versus
Bharitya Janta
Party and others ....Respondents.
CORAM:- HON'BLE MR. JUSTICE S.S.SARON
HON'BLE MRS. JUSTICE LISA GILL
Present: Mr. Pardeep Kumar Rapria, petitioner in person.
*********
S.S. SARON
This petition has been filed seeking a writ in the nature of
mandamus directing respondents No. 1 to 8, which are political parties
to
implement the provisions of the Right to Information Act, 2005 (for short - 'the RTI Act') in their office/s in terms of the final decision dated 03.06.2013 (Annexure P-5) of the Central Information
Commission (for short - 'the Commission'). A further direction has been sought for empowering the Central Information Commission/State Information
Commissions
to ensure
the
compliance of its
orders. It
is
further
prayed for directing the
respondents
to implement the National
The petitioner is a practising lawyer, primarily, in
the Supreme Court of India and in this Court. It is submitted
that he has rendered services to the Central Information Commission and
National Investigation
Agency
as a
Legal Consultant/Legal Retainer. He is involved in social
activities and has rendered legal service to the 'Justice Onkar Singh
Free Legal Aid Service Trust' headed by Sh. K.T.S. Tulsi, Senior Advocate. He is M.A., LLB; PGD in Journalism and Mass
Communication;
PGD
in Cyber Law, PGD in Intellectual Property Laws and General Course in Intellectual Property
Rights (WIPO,
Geneva).
He
has no personal interest in litigation and that the petition is not guided by self-gain or for gain of any other person/institution/ body and
that there is no
motive other than that
of public interest in filing
the writ petition.
It is submitted by way of clarification that the petitioner
“After hearing the
petitioner, this Court
is of the
opinion that the cause shown
in this
petition is largely of
a public nature, therefore, the petitioner may, if so
advised, file Public
Interest Litigation.”
Therefore, the present petition has been filed.
We have heard the petitioner who
is appearing in
person at considerable
length and gone
through the voluminous paper book that
has been
filed. The
primary relief that has been claimed by the
“92. In view of the above discussion, we hold that
INC, BJP, CPI (M), CPIO, NCP and BSP
have been substantially financed by the Central Government under Section 2(h) (ii) of the RTI Act. The criticality of
the
role being played by these Political Parties in our
democratic set up and the nature of duties performed by them also point towards their public character,
bringing them in the ambit of section 2(h).
The constitutional and
legal provisions discussed herein
above also point towards their character as public authorities.
The
order of the Single Bench of this
Commission in Complaint No.CIC/MISC/2009/
0001 and CIC/MISC/2009/0002 is hereby set aside and it
is held that AICC/INC, BJP, CPI(M), CPI, NCP and BSP are public authorities under Section 2(h) of the RTI Act.
93. The
Presidents, General/Secretaries of these
94. The
complaints
are
disposed
off as per the
above directions.”
The said order
was not implemented, therefore, the matter
was
agitated again by the said complainants i.e. Subhash Chandra Aggarwal and Anil Bairwal, which has been disposed of vide order
dated 16.03.2015 (Annexure
P-11). The Commission decided as
follows:-
“69. We have arrived
at
the conclusions
above taking into account that the Commission's order of
03.06.2013 was not challenged
in any court.
As
per the Commission's order, which is final and binding, the respondent national
political parties are public authorities under
the RTI Act.
70. It is clear that the respondents have
not implemented, as public
authorities, the
directions
71. The following is decided:
(a) the respondents are not in compliance with the
Commission's order
of 03.06.2013 and the RTI Act.
The
respondents,
as public authorities, have not implemented the directions
contained in the Commission's
order and there is no evidence of any intention to do so;
(b) the submissions made by the complainants for the imposition of penalty and the award of
compensation are not allowed in view of
legal considerations;
(c) the prayer for
making
recommendations
to public
authorities, reference para 68(6), above, is not allowed;
(d) a copy of this order be sent to the Department of
Personnel and Training,
Government of India, for taking action as deemed
appropriate for addressing the legal gaps and issues that have come to light
during the
hearings, including
those
mentioned in
(e) the complainants are at liberty, in view of the facts and circumstances of this case, to approach the
higher courts for appropriate relief and redressal."
A perusal of the above shows that recommendations were
made in para 68 (7) to the Department of Personnel and
Training, Government
of India for taking action as deemed appropriate or
addressing the legal gaps. In respect to the prayers that have been
made, several issues
would arise including that as to whether the
political parties against
whom relief is sought, would be amenable to
the
writ jurisdiction
of this Court and as to whether these are a 'State' within the meaning
of Article 12 of the Constitution.
The petitioner has contended that in terms of order dated 03.06.2013 (Annexure P-5) passed by the Commission, it has held the
political parties 'to be public authority' within the meaning of Section
2 (h) of the RTI Act. However, merely because a political party has been
declared as a 'public authority' it would not necessarily come within the
ambit of 'State',
for
the purpose of Article 12
of the Constitution.
The Hon'ble Supreme Court in Thalappalam Service Coop. Bank Limited and others v. State of Kerala and others (2013) 16 SCC 82 held that there may be a Constitution where body
or organisation though not a State or an instrumentality of the State under Article 12 of
the
Constitution may still satisfy the definition
of 'public authority' within
the meaning of Section 2 (h) of the
RTI
Act. Therefore, merely
Even otherwise, the orders that are passed by the
Commission are not to be executed by the High Court and in case there are lacunas, shortcomings or deficiencies in the provisions of the
RTI
Act, the same are to be examined by the legislature and the High Court is not to issue directions for legislation. A High Court has no jurisdiction to direct the State to introduce a particular legislation.
In V.N. Naswa v. Union of India (2012) 2 SCC 542, the Supreme Court held that the Court can neither legislate nor issue a
direction to the legislature to enact the law
in a
particular manner. The Court has a very limited role and in exercise of that, it is not open to
have judicial legislation. In exceptional circumstances where there is inaction by the executive, for whatever reason, the judiciary
must
step in, in exercise of its constitutional obligations to provide a solution till
such time the legislature acts to perform its role by
enacting proper legislation to cover the field.
In any case, it is noticed that the order that has been passed by the Commission is in Delhi and no cause of action has been
shown to have accrued to the petitioner within the territorial jurisdiction of this Court. In terms of sub Article (2) of Article 226 of the Constitution, the power conferred by clause (1) of Article 226 to issue
directions, orders or writs to any Government, authority or person may
be exercised
by any High Court exercising jurisdiction in relation to the
The petitioner seeks to invoke the jurisdiction that he has his residence within the State
of Haryana and, therefore, he has the cause of action to file the petition in this Court. However, the petitioner
may have a right of action within the territorial jurisdiction of this Court
but the same would not confer on him a cause of action. Article 226 of the
Constitution confers on every High
Court the
power
to issue
certain writs throughout
the territory in relation to which it exercises
jurisdiction for the enforcement of any
right conferred by
Part III of the
Constitution and for any other purpose.
Sub-Article (2) of Article 226
of the Constitution
reads as follows:-
“(2) The power conferred by clause (1) to issue direction,
orders
or
writs to any Government,
authority or person may also be exercised by any High Court exercising
jurisdiction in relation to the
territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding
that
the seat of such Government or authority or the residence of such person is not within
those
territories.”
In Navinchandra N. Majithia v. State of Maharashtra, (2000) 7 SCC, 640 the Supreme Court held that from the provisions of
The petitioner further submits that he has a cause of action in terms of Section 4 of the RTI
Act. Section 4 of the RTI Act confers obligation of public authorities.
The
obligation to furnish information
may be there but it is not the case of the petitioner that he has sought
any information, which has been declined to him. As has already been
noticed, the
decision that
has
been
taken
by the
Commission
on 03.06.2013 (Annexure P-5)
and its implementation on 16.03.2015
(Annexure P-11), the petitioner admittedly
is
not a party to any of the decisions.
We asked the petitioner whether those who are
complainants/petitioners
in the said petition had assailed the said orders, the petitioner submits
that
he has no information and he is unable to state whether the orders have been challenged.
Therefore, it would be iniquitous to venture into to examine the veracity of the same as those may be the subject matter of lis
before a competent Court. Be that as it may, we have held that the
In the circumstances, the
writ petition is
ordered
to be returned to the petitioner in terms of Order VII Rule 10 of the Code of Civil Procedure, 1908.
The petition is, accordingly, ordered
to be returned to the petitioner. (S.S. Saron)
Judge
(Lisa Gill)
August 29, 2016 Judge
Judge
(Lisa Gill)
August 29, 2016 Judge
Note:
|
1. Whether speaking/reasoned:
|
Yes
|
2. Whether reportable:
|
Yes
|
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