1. The petitioner has taken out present petition seeking below mentioned relief/s:-
"10.(A) That this Honourable Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus and / or any other appropriate writ, order or direction, and thereupon be pleased to set aside the communication / order dated 30th July, 2011 issued by the respondent no.2 herein, as annexed at annexure C as being illegal, arbitrary and without jurisdiction.
(B) That pending and final disposal of this Special Civil Application this Hon'ble Court may be pleased to stay the implementation and operation of the impugned communication / order dated 30th July 2011 annexed at annexure-C AND (C) That this Hon'ble Court be pleased to pass such other further orders as the nature and circumstances of the case may demand."
2. Mr. Goswami, learned advocate has appeared for Mr. Nanavati, learned advocate for the petitioner. Mr. Goswami, learned advocate for the petitioner has submitted that the respondent No.3 had filed an application on or around 21.5.2011 before the District Collector, Navsari seeking certain information with reference to the petitioner school. The information was requested for in light of provisions under Right to Information Act, 2005 (hereinafter referred to as the "Act"). Mr. Goswami, learned advocate for the petitioner further submitted that since the information which was requested for was not related to the office of the Collector, the said application was transferred / forwarded to the District Education Officer i.e. present respondent No.2 and that since the prescribed period of 30 days (for supplying the details requested for) expired during the said process the said respondent, considering himself Appellate Authority, directed the petitioner to remain present on 30.7.2011. Mr. Goswami, learned advocate for the petitioner also claimed that the petitioner remained present before the said authority on 30.7.2011 however any effective hearing did not take place on that day. Despite the fact that any effective hearing had not taken place, respondent No.2, according to the learned advocate for the petitioner, directed, vide communication - order dated 30.7.2011, the petitioner to provide the information and details requested for by the respondent No.3 within 30 days. The petitioner is aggrieved by the said order.
Mr.
Goswami, learned advocate for the petitioner submitted that the respondent No.3 had asked for details and information from the office of District Collector. According to the provisions of the Act it was for the said office to give proper reply to the applicant respondent No.3 however, the office of District Collector forwarded the application to the District Education Officer. The District Education Officer could not have assumed position of Appellate Authority. He also claimed that the provisions under the Act are not applicable to the petitioner and the respondent No.3 had not made application to the petitioner and that therefore even otherwise petitioner cannot be said to be in default. However, without considering said aspect the respondent No.2, according to the petitioner unauthorizedly passed the impugned order. The petitioner is aggrieved by such order and direction, hence present petition.
3. The respondents have opposed the petition by filing reply affidavit dated 16.11.2011.
4. It is claimed in the reply affidavit dated 16.11.2011 that:-
"5.
A few facts would be of vital importance for the ultimate decision of this petition:
(A) I submit that, I have seeked the information under Right to Information Act about St. Francis of Assisi Convent High School, Navsari on 21.5.2011 from District Information Officer, District Collector's Office, Navsari.
(B) District Information Officer transferred my form __ to Public Information Officer, District Education Office, Navsari. At the office of the District Education Officer the form was not sent to the St. Francis of Assisi Convent High School, and I was deprived of the information seeked under RTI.
(C) On 30/06/2011 I filed first Appeal before District Education Officer, Navsari, as information which was seeked by me was not provided within 30 days.
(D) On 26/07/2011 District Education Officer seeked for the information from the Principal of the School.
(E) On 30/07/2011, hearing of the Appeal No. RTI/Appeal/11-13915-18 at the District Education Officer, Navsari, took place. No reply was filed by the Principal of the School and they said that the information seeked for is for more than 50 years, so it is impossible to get the information. Hence the information about the school for 20 years were asked from them.
(F) As, on 30/07/2011 hearing of the First Appeal No. RTI/Appeal/11-13915-18, took place, Appeal Officer stated, to provide information free of cost to respondent No.3. Till date 30/08/2011, no information is provided to me.
(G) St. Francis of Assisi Convent High School, is Government registered School, bearing Registration No.3913.63/14/2 dated 16/09/1981, SSC Index No.78022, HSC Index No.23015. This school is getting a Government assistance, and payment allowances from Government. As the organization was run by using the public fund, information under RTI Act can be seeked from them."
5. I have considered the submissions by learned advocate for the petitioner and respondent.
6. The provision under Section 19 of Act provides substantive, effective and efficacious remedy by way of Appeal to the State Commission and that therefore in view of the said statutory remedy, which is available to the petitioner under the provisions of the Act, present petition does not deserve to be entertained. The said section 19 of Act reads thus:-
"19.
Appeal.-
Any person who, does not receive a decision within the time specified in sub-section (1) or clause (a) of sub-section (3) of section 7, or is aggrieved by a decision of the Central Public Information Officer or State Public Information Officer, as the case may be, may within thirty days from the expiry of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the Central Public Information Officer or State Public Information Officer as the case may be, in each public authority:Provided that such officer may admit the appeal after the expiry of the period of thirty days if he or she is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
Where an appeal is preferred against an order made by a Central Public Information Officer or a State Public Information Officer, as the case may be, under section 11 to disclose third party information, the appeal by the concerned third party shall be made within thirty days from the date of the order.
A second appeal against the decision under sub-section (1) shall lie within ninety days from the date on which the decision should have been made or was actually received, with the Central Information Commission or the State Information Commission:
Provided that the Central Information Commission or the 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.
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7. It can be seen from the aforesaid provision that the State Commission, as an Appellate Authority, is conferred with requisite power to decide Appeal and pass necessary and appropriate orders in accordance with the provisions under the Act. When a special statute provides specific remedy and creates special forum under the Act by way of an Appeal then the party aggrieved by any order made under the Act ought to take recourse under - before said remedy - authority and the Court would ordinarily relegate the petitioner to such statutory remedy. In present case, hierarchy of authority is constituted under the Act i.e. first adjudicating authority, first appellate authority and second appellate authority (viz. State Commission). Thus specific remedy is provided and special forum is created under the Special Act and that therefore the petitioner ought to approach the State Commission. Hence, the petition does not deserve to be entertained. It is necessary and appropriate that the petitioner should be relegated to the Appellate Authority constituted under the Act.
8. At this stage learned advocate for the petitioner has expressed apprehension on the ground that Appeal may not be entertained by the State Commission on ground of limitation.
9. In this context it is necessary and appropriate to observe that it would be open to the petitioner to make application to entertain the application on merits in light of the provision under proviso of sub-section (3) of Section 19 of the Act and view of the fact that the petitioner has been prosecuting remedy by way of present writ petition. It is necessary and pertinent to mention on this count that the impugned order in present petition appears to have been passed on 30.7.2011 and the said order is appealable before the State Commission. However the petitioner filed this petition on 24.8.2011 i.e. within 30 days from the date on which the order in question came to be passed. The aforesaid details make it clear that the petitioner has not caused any delay in prosecuting remedy, against said order dated 30.7.2011. It also cannot be said that the petitioner has remained negligent in taking out proceedings against order by which he is aggrieved.
When the Appeal is filed before the competent authority and request to entertain the Appeal on merits is made competent authority shall consider aforesaid factual aspects and pass appropriate and necessary orders in accordance with law, particularly having regard to the provisions contained under sub-section (3) of Section 19 which authorizes the State Commission to admit the Appeal even after expiry of prescribed period, if satisfactory explanation is given by the appellant.
10. With the aforesaid observations and directions the petition is disposed of and the petitioner is relegated to the statutory remedy available under the provisions of the Act.
It is clarified that if the petitioner file an Appeal within period of two weeks, then relief granted by the Court will continue to remain in operation.
(K.M.THAKER,J.) Suresh* Top