* THE HON'BLE SRI JUSTICE A.RAMALINGESWARA RAO
WRIT PETITION No.3258 of 2008
% 06.12.2014 Between:
Sri O.M.Debara.
… Petitioner AND The AP State Information Commission, Rep.by its Secretary, HACA Bhavan, Hyderabad, And others.
…Respondents Counsel for petitioner: Sri G.Mohan Rao.
Counsel for the Respondents : GP for General Administration Smt.Dr.Y.Padmavathi < Gist:
> Head Note:
? CITATIONS:
THE HON'BLE SRI JUSTICE A.RAMALINGESWARA RAO
WRIT PETITION No.3258 of 2008
ORDER:
Heard the learned Counsel for the petitioner and the learned Standing Counsel for respondent Nos.2 and 3.
2. The petitioner is the General Secretary of the Forum for Better Hyderabad, a Non-Government Organization engaged in taking up several issues of public interest. The petitioner filed an application on 06.06.2007 to the third respondent seeking a copy of the sanctioned plan in respect of the premises No.8-3-949/1, Ameerpet, Hyderabad under the Right to Information Act, 2005 (for short, the Act). When the petitioner enquired with the third respondent on 07.08.2007, he was informed that the requisite fee of Rs.10/- was not found along with the application and when he was informed so, the petitioner paid the amount on 07.08.2007 itself. But, the third respondent did not furnish the information as required under Section 7(1) of the Act within the period of thirty days. The petitioner received a letter dated 24.08.2007 on 19.09.2007 from the second respondent requesting the petitioner to pay an amount of Rs.44,787/- for providing the certified copies of the sanctioned plans in respect of the premises required by the petitioner. The amount was calculated @ Rs.165 per 1000 sft. of the total sanctioned area. The petitioner submitted a reply on 19.09.2007 itself to the second respondent stating that since the information was not furnished within thirty days as required under the provisions of the Act, the petitioner is entitled for the information free of cost as per Section 7(6) of the Act. Challenging the demand of the said amount, the petitioner filed an appeal before the first respondent. The first respondent passed an order on 12.02.2008 dismissing the appeal, challenging which the present Writ Petition was filed.
3. No counter affidavit is filed by the respondents.
4. Learned Counsel for the petitioner submits that in the absence of furnishing the information within thirty days, as provided under Section 7 of the Act, the petitioner is entitled to have the information free of cost under Section 7(6) of the Act. Though the said point was raised before the first respondent, the first respondent did not advert to the said point in the order dismissing the appeal. It is further submitted that the demand of Rs.44,787/- is ultra vires the provisions of the Act, as the Rules were framed under the provisions of the Act called, the Andhra Pradesh Right to Information (Regulation of Fee and Cost) Rules, 2005 (for short, the Rules), which override the rules under any other enactment.
5. There is no dispute that the petitioner filed an application on 06.06.2007 seeking information of the following:
“a) Please provide us a copy of the final building permission including approved building plan of each floor, given to the commercial complex located in Ameerpet housing the Big Bazaar Store.
b) Please provide us a copy of the Occupancy certificate issued to the same building.
c) Please provide us a copy of all the file notings related to the above building permission.
d) Please provide us a copy of all the communications between GHMC and any other Govt. Agencies/Organizations involved in giving the building permission.”
6. When the petitioner was informed that the requisite fee of Rs.10/- was not enclosed to the said application, he paid the same on 07.08.2007 and submitted it on the same day to the third respondent. The second respondent issued a letter on 24.08.2007 asking the petitioner to pay an amount of Rs.44,787/- towards the fee for the certified copies of the sanctioned plans and with regard to the other information which would be furnished in due course of time and separate fees would be charged. The petitioner addressed a letter to the second respondent on 19.09.2007 protesting the demand of such amount. The third respondent addressed a letter to the petitioner on 11.10.2007 intimating that as per the provisions of the Greater Hyderabad Municipal Corporation Act, charges have to be paid for providing the certified copies on the payment of the fees as prescribed in the schedule of rates which have been published in the notification vide G.O.M.S.No,875 M.A. dated 14-09-1964, after taking approval of the General Body of the Corporation and as per the same the rates were calculated. However, the petitioner was not agreeable for the same and he filed an appeal before the first respondent on 06.11.2007. The first respondent passed the following order:
“Heard both the parties.
The Commission after hearing the contentions of both the parties has also perused the G.O.Ms.No.454 issued by GA (I&PR II) Dept., dt.13.10.2005.
As per G.O.Ms.No.454 GA (I&PR II) Dept., dt.13.10.2005 under Rule 4(A) priced material is mentioned. It is relevant to mention here Rule 4(B) also which speaks about other than priced material.
In view of Rule 4(A) of the said Rules the calculations arrived at by the PIO is according to the departmental fixed priced material and therefore to pay a sum of Rs.44,787/- as communicated to the appellant herein is correct, which is the printed material.
So far the request of the Appellant that the charges as fixed by the PIO are exorbitant and very difficult for him to pay and the said request cannot be considered by this Commission, the reason being that as per Section 27(1) of the RTI Act, 2005, the rule making power is vested with the State Government and accordingly, the fee and cost rules were made by the Government only. Hence, the request of the Appellant cannot be considered to.
Accordingly, the appeal is disposed of.”
7. The first respondent upheld the demand based on G.O.Ms.No.454 dated 13.10.2005 holding the information as priced material and since the rule making power is vested with the State Government under Section 27(1) of the Act, it is for the Government to fix the fee and cost and accordingly dismissed the appeal.
8. Section 7 of the Act reads as follows:
“7. Disposal of request:- (1) Subject to the proviso to sub- section (2) of section 5 or the proviso to sub-section (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9:
Provided that where the information sought for concerns the life or liberty of a person, the same shall be provided within forty-eight hours of the receipt of the request.
(2) If the Central Public Information Officer or State Public Information Officer, as the case may be, fails to give decision on the request for information within the period specified under sub-section (1), the Central Public Information Officer or State Public Information Officer, as the case may be, shall be deemed to have refused the request.
(3) Where a decision is taken to provide the information on payment of any further fee representing the cost of providing the information, the Central Public Information Officer or State Public Information Officer, as the case may be, shall send an intimation to the person making the request, giving-
(a) the details of further fees representing the cost of providing the information as determined by him, together with the calculations made to arrive at the amount in accordance with fee prescribed under sub-section (1), requesting him to deposit that fees, and the period intervening between the despatch of the said intimation and payment of fees shall be excluded for the purpose of calculating the period of thirty days referred to in that sub- section;
(b) information concerning his or her right with respect to review the decision as to the amount of fees charged or the form of access provided, including the particulars of the appellate authority, time limit, process and any other forms.
(4) Where access to the record or a part thereof is required to be provided under this Act and the person to whom access is to be provided is sensorily disabled, the Central Public Information Officer or State Public Information Officer, as the case may be, shall provide assistance to enable access to the information, including providing such assistance as may be appropriate for the inspection.
(5) Where access to information is to be provided in the printed or in any electronic format, the applicant shall, subject to the provisions of sub-section (6), pay such fee as may be prescribed:
Provided that the fee prescribed under sub-section (1) of section 6 and sub-sections (1) and (5) of Section 7 shall be reasonable and no such fee shall be charged from the persons who are of below poverty line as may be determined by the appropriate Government.
(6) Notwithstanding anything contained in sub-section (5), the person making request for the information shall be provided the information free of charge where a public authority fails to comply with the time limits specified in sub-section (1).
(7) Before taking any decision under sub-section (1), the Central Public Information Officer or State Public Information Officer, as the case may be, shall take into consideration the representation made by a third party under Section 11.
(8) Where a request has been rejected under sub-section (1), the Central Public Information Officer or State Public Information Officer, as the case may be, shall communicate to the person making the request,-
(i) the reasons for such rejection;
(ii) the period within which an appeal against such rejection may be preferred; and
(iii) the particulars of the appellate authority.
(9) An information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question.”
9. The Rules were framed under the provisions of the Act. Rule 4 of the Rules deals with the fee to be charged for providing the information and it reads as follows:
“Fee to be charged for providing information:- For providing information under sub-section (1) or sub-section (5) of Section 7, a fee shall be charged, by affixing the court fee stamps or by way of cash or postal order or demand draft or bankers’ Cheque, payable to the Accounts Officer or any other duly authorized officer of the Public Authority, against proper receipt, at the following rates:-
(A) Priced material:- Publications printed matter, text, maps, plans, floppies, CDs, samples, models or material in any other form, which are priced, the sale price thereof;
(B) Other than priced material:-
(i) Material in printed or text form (in A4 or A3 size paper) Rs.2/- per each page per copy;
(ii) Material in printed or text form in larger than A4 or A3 size paper actual cost thereof;
(iii) Maps and Plans – actual cost thereof;
(iv) Information in Electronic format viz., Floppy, CD or DVD:
(a) rupees fifty for Floppy or 1.44 MB;
(b) rupees one hundred for CD of 700 MB; and
(c) rupees two hundred for CD (DVD);
(v) Samples and models – actual cost thereof;
(vi) for inspection of records, no fee for the first hour; and a fee of Rupees Five for each subsequent hour (or fraction thereof);
(vii) Material to be sent by post – the actual postal charges in addition to the charge payable as per these rules.”
10. The priced material is indicated as publications printed matter, text, maps, plans, floppies, CDs, samples, models or material in any other form, which are priced, the sale price thereof. A building plan of a particular premises is not open for sale and it is not priced. Hence, it cannot be called as a “priced material”. In respect of other than priced material, the actual cost of the copy has to be recovered from the party. Thus, the first respondent committed an error in coming to the conclusion that the information sought by the petitioner is a priced material and also upholding the demand made by the second respondent. If it is a priced material, the sale price should have been indicated. In case of other than priced material, the actual cost should have been calculated. Either way it has nothing to do with the calculation of the amount as done by the second respondent.
11. In the circumstances, the order passed by the first respondent is set aside and the respondents are directed to furnish the required information to the petitioner as per the Rules provided under the Act, and the Writ Petition is, accordingly, allowed. The miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.
(A.RAMALINGESWARA RAO, J) 06.12.2014.
Note: LR copy to be marked - Yes
B/o. vs