IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD WRIT PETITION No.33523/2013(GM-RES) BETWEEN:
ANJUMAN-E-ITHEHAD-E-ISLAM # 2880, SAWDAY ROAD MANDI MOHALLA, MYSORE-570 021 REPRESENTED BY ITS ADMINISTRATOR DR MUZAFFAR ASSADI (BY SMT. NIDHISHREE B V, ADV.) AND ... PETITIONER 1. STATE INFORMATION COMMISSIONER KARNATAKA INFORMATION COMMISSION ROOM NO. 246, 2ND FLOOR MULTISTORIED BUILDINGS DR AMBEDKAR ROAD BANGALORE-560 001.
2. MR M KALEEM UL HAQ 652,SS NAGAR, B LAYOUT BANNIMANTAPPA, MYSORE-570 015 ... RESPONDENTS (BY SRI.G B SHARATH GOWDA, ADV.
FOR R1, R2 IS SERVED BUT UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE R1 DT.9.7.13 PASSED IN KIC 7869/12 AT ANNEXURE-H. GRANT INTERIM ORDER TO STAY THE OPERATION OF THE ORDER PASSED BY THE R1, DT.9.7.13, PASSED IN KIC.7869/12, AT ANNEXURE-H & GRANT SUCH & OTEHR RELIEFS AS MAY BE JUST.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R This writ petition is directed against the order dated 9.7.2013 passed by the respondent No.1 in KIC No.7869/2012 vide Annexure-H.
2. Brief facts of the case:
Petitioner is a Waqf institution registered under the provisions of Wakf Act, 1995. The petitioner was running a school by name Majestic Higher Primary School for minority children, underprivileged children, more specifically focusing on the girl child. Respondent No.2 herein has filed an application dated 13.6.2012 under Section 6(1) of the Right to Information Act (for short “the Act”) before the Wakf Officer regarding furnishing of information in respect of Majestic School, Udayagiri, Mysore. The Wakf officer vide letter dated 12.7.2012 has directed the petitioner to furnish the information sought by respondent No.2. The petitioner vide his letter dated 8.4.2013 has communicated to the respondent No.1 that the petitioner institution is a private institution and is not getting any type of grant from the Government and as such the institution cannot be brought within the purview of the Right to Information Act and hence requested to dismiss the application of the respondent No.2. Being aggrieved by the same, respondent No.2 has filed an appeal before the respondent No.1. The respondent No.1 vide order dated 26.4.2013 (Annexure-F) has held that in the event the petitioner intends to prove that it is not a “public authority” under Section 2(h) of the Act, it has to produce three years audited income and expenditure statement and accordingly directed the petitioner to submit the last three years audited income and expenditure statement of the Institution within 15 days. In pursuance of the order dated 26.4.2013, the petitioner on 22.6.2013 vide Annexure-G (copy received on 8.7.2013) has furnished the three years audited income and expenditure statement of the petitioner-Institution to prove that the institution is outside the purview of “public authority”. The respondent No.1, vide order dated 9.7.2013 (Annexure-H) has held that since the petitioner-Institution has not produced three years audited income and expenditure statement, the petitioner is a “public authority” as defined under Section 2(h) of the Right to Information Act and directed the petitioner to furnish the information sought by respondent No.2. Being aggrieved by the order dated 9.7.2013 passed by respondent No.1, the petitioner is before this Court.
3. The learned counsel for the petitioner submits that the petitioner is a private institution and not a “public authority” as defined under Section 2(h) of the Act. Pursuant to their reply, respondent No.1 has directed the petitioner to furnish the audited income and expenditure statement for the past three years to find out whether the petitioner is a “public authority” or not. Subsequently, the petitioner has furnished the audit report on 22.6.2013 vide Annexure-G (copy received on 8.7.2013) to the respondent No.1. Respondent No.1 without considering this aspect of the matter has passed the order on 9.7.2013. Hence, the same is unsustainable.
4. Per contra, the learned counsel for respondent No.1 submits that pursuant to the notice issued by the respondent No.1 on 26.4.2013, petitioner has given reply stating that the petitioner institution is not a “public authority” as defined under Section 2(h) of the Act. Hence, respondent No.1 has issued the notice to the petitioner to furnish the past three years audited income and expenditure statement to verify and to decide whether the petitioner-institution is a “public authority” or not. In pursuance to the notice, petitioner has furnished the audit report on 22.6.2013 (copy received on 8.7.2013). Respondent No.1 has passed the impugned order on 9.7.2013. The report submitted by the petitioner was not placed before the respondent No.1- Commission and there was no representation on behalf of the petitioner.
5. Heard the learned counsel for the parties and perused the records.
6. It is not in dispute that the petitioner is Waqf Institution registered under the Wakf Act, 1995. The petitioner was running a school by name Majestic Higher Primary School for minority children, underprivileged children, more specifically focusing on the girl child. The specific contention of the learned counsel for the petitioner is that the petitioner is not a “public authority” as defined under Section 2(h) of the Act and the application filed by the respondent No.2 seeking information under the Act, is not maintainable and subsequently, the appeal filed by the respondent No.2 before respondent No.1, is not maintainable. In respect of the objection raised by the petitioner that it is not a “public authority”, respondent No.1 to decide whether the petitioner is a “public authority” or not has directed the petitioner to furnish past three years audited income and expenditure statement. The petitioner vide letter dated 22.6.2013 has submitted the audit report vide Annexure-G (copy received on 8.7.2013). The impugned order is passed on 9.7.2013. There is no reference in the impugned order regarding the audit report submitted by the petitioner and there is no representation on behalf of the petitioner. Respondent No.1 on the basis of the materials available on record has held that the petitioner is a “public authority” and directed the petitioner to submit the information sought by respondent No.2. Respondent No.1 did not go through the audit report received by the petitioner on 8.7.2013 vide Annexure-G and has passed the impugned order dated 9.7.2013 vide Annexure-H. Hence, the impugned order passed by respondent No.1, is unsustainable.
7. In view of the facts and circumstances of the case, the following order is passed:
a) The writ petition is disposed of.
b) The order dated 9.7.2013 passed by the respondent No.1 in KIC No.7869/2012 (Annexure-H), is set aside.
c) The matter is remitted back to respondent No.1 to consider the audited income and expenditure statement produced by the petitioner vide Annexure-G to decide whether the petitioner-institution is a “public authority” or not? and then respondent No.1 shall decide the appeal filed by respondent No.2.
Sd/- JUDGE DM