As per GIC decision, the State Bar Councils fall under CIC and not SIC

[karira]

The Gujarat Information Commission has passed an order deciding that State Bar Councils are under the jurisdiction of the Central Information Commission (CIC) and not under the State Information Commission (SIC).

The full order is as follows:

Gujarat Information Commission
Bureau of Economics & Statistics Building,
1st Floor, Sector 18, Gandhinagar.

Complaint No. 0775/2007-08

(Under Section - 18 (1) and (2) of the Right to Information Act 2005)

The 10th day of July, 2008

Complainants:
1. Pramukh, Atmadeep Khadi Gramodyoga and Education Trust.
2. Pramukh, Tathagat Trust, Karaka Street, Saraspur, Ahmedabad 380018.

Respondent: Public Information Officer and In-charge Secretary, Bar Council of Gujarat, 3rd Floor, Satyamev Complex, Opp.. Gujarat High Court. Sola, Ahmedabad 380 060.

Before R.N. Das, State Chief Information Commissioner

The Pramukh of Atmadeep Khadi Gramodyoga and Education Trust, the complainant No.1, and the Pramukh of the Tathagat Trust, the complainant No.2, made their applications under the Right to Information Act, 2005 on 19-1-2007 and 17-2-2007, respectively to the respondent. The first complaint sought information on the action taken on their applications dated 7-8-2006 and 15-11-2006 against three Advocates named in his application under the Right to Information Act. The second complaint sought information on the action proposed to be taken against alleged abuse of sanad in respect of one Advocate named in his application under the Right to Information Act. The second complainant also made another application under the Right to Information Act to the respondent on 12-2-2007 seeking identical information. As the complainants did not get any information from the respondent, they preferred their first appeals, separately, to the Pramukh, Bar Council of Gujarat; the first complainant made his appeal on 23-3-2007, while the second complainant made his appeal on 18-3-2007. As they did not get any response, a complaint was preferred to the Commission dated 13-6-2008.

2. The In-charge Secretary to the Bar Council of Gujarat, in his written remarks dated 30-6-2008 on the complaint filed in the Commission has, interalia, contended that the application made under the Right to Information Act was not accompanied by the receipt of payment of the application fee by cash; instead, the application bore special adhesive stamp of Rs. 20/- of Nutan Nagrik Bank and that while this matter was put up for consideration of the Executive Committee of the Bar Council of Gujarat, the said Committee in its meeting held on 10-2-2007 decided as follows:
"Considered the letters dated 25-1-2007 from Atmadeep Khadi Gramdyog and Education Trust for details as mentioned in the letter under Right to Information Act. Committee further considered that the applicant has not paid Rs. 20/- prescribed fee under the Right to Information Act. The Public Information Officer of the BCG is requested to call the prescribed fee under Right to Information Act from the applicant".

3. The respondent has also mentioned in his remarks that the complaint / application dated 7-8-2006 referred to in the Right to Information application dated 19-1-2007 was filed by the Chairman of the Executive Committee on 25-8-2006, while his other application dated 15-11-2006, when verified with the records, was not found.

4. As regards the other application dated 17-2-2007 under the Right to Information Act, the respondent has stated that the application was received with four Court fee stamps, each of Rs. 5/-, which is not the prescribed mode of payment of the application fee. Besides, in respect of the information sought, that is, action proposed to be taken against the Advocate named in the application, no complaint or application was received against that Advocate for the abuse of sanad.

5. The respondent has also stated that the Gujarat Bar Council had sent two letters to the complainants in their given addresses by post, but the same was returned by the postal authorities with the remark that the address was incomplete.

6. The respondent, in his written remarks, has also raised a legal issue regarding the jurisdiction of the State Information Commission to entertain and decide this complaint preferred against the Bar Council of Gujarat on the ground that the said Council is a statutory body established under the Advocates Act, 1961. As such, it is established by a law made by Parliament and therefore, the State Information Commission has no jurisdiction in this matter and only the Central Information Commission, New Delhi has jurisdiction in the matter.

7. Hearing in the Commission in this matter was given on 2-7-2008. The respondent was present in the hearing while the complainant side was not present. The Commission heard the respondent. The respondent's main submission was on the issue of jurisdiction of the State Information Commission and he reiterated his submission summarized at paragraph 6 above.

8. The substantive issue in this matter relates to whether the State Information Commission has jurisdiction to entertain, hear and decide a matter relating to the Bar Council of Gujarat. Admittedly, the Bar Council of Gujarat is established under the Advocates Act, 1961 (25 of 1961). The Advocates bill was passed by both Houses of Parliament and it received the assent of the President on 19th May, 1961 and became the Advocates Act, 1961. "State Bar Council" has been defined under section 2 (m) of the said Act to mean a Bar Council constituted under Section 3. Section 3(1)(a) of the said Act provides that there shall be a Bar Council for each of States of Andhra Pradesh, Bihar, Gujarat ... to be known as the Bar Council of that State. Section 5 of the said Act provides that "every Bar Council shall be a body corporate having perpetual succession and common seal, with power to acquire and hold property; both moveable and immovable, and to contract, and may by the name by which it is known sue and be sued".

9. Section 2(h) of the Right to Information Act, 2005 defines "public authority" to mean any authority or body or institution of self- government established or constituted, -
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate Government, and includes any -
(i) body owned, controlled or substantially financed;
(ii) non-Government organization substantially financed, directly or indirectly by funds provided by appropriate Government.

10. It is, therefore, evident that the Bar Council of Gujarat is a "Public authority" under the Right to Information Act, 2005 as it is a body constituted under section 3(1)(a) of the Advocates Act, 1961 (25 of 1961), the Bill of which was passed by both the Houses of Parliament, and which received the Presidential assent on 19th May, 1961. The respondent also accepts this position that the Bar Council of Gujarat is a public authority under the Right to Information Act, 2005. The Bar Council of Gujarat's Executive Committee Resolution; No. 32 to 2007, passed in its meeting held on 10-2-2007, also acknowledges this position as the said Resolution, interalia, provides that the Public Information Officer of the Bar Council of Gujarat is requested to call the prescribed fee under the Right to Information Act from the applicant.

11. Now the issue is whether the State Information Commission has jurisdiction to entertain complaint/appeal under the Right to Information Act, 2005 against the Bar Council of Gujarat.

12. As regards the meaning an scope of "jurisdiction" , in his book "Interpretation of Statutes" (2nd edition, page 220 - 221), D.P. Mittal says as follows:
"Halsbury's Law of England, IV edition, Vol. 10, Page 715, on the subject of "jurisdiction of Courts" enunciates: 'By "jurisdiction" is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the court is constituted, and may be extended or restricted by similar means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters on which the particular court has cognizance, or as to the area over which the jurisdiction extends, or it may partake of both these characteristics.
xxxx
Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing Jurisdiction must be acquired before judgment is given'. (quoted in Dr. P.K. Mohammed Rasheed versus State of Kerala {1997} 89 Comp.cas. 445 (Ker.)

13. "State Information Commission" is defined in section 2 (k) of the Right to Information Act, 2005 to mean the State Information Commission constituted under sub-section (1) of section 15. Sub-section (1) of section 15 of the Right to Information Act, 2005 provides that every State Government shall, by notification in the Official Gazette, constitute a body to be known as the ...(name of the State) Information Commission to exercise the powers conferred on, and to perform the functions assigned to it under the said Act. The powers and functions of the State and Central Information Commissions have not been separately delineated under the Right to Information Act, 2005. Chapter V of the Right to Information Act deals with the powers and functions of the Information Commission, Appeal and Penalties. Section 18(1) of the Right to Information Act provides that "Subject to the provisions of this Act, it shall be the duty of the Central Information Commission or State Information Commissions, 'as the case may be', to receive and inquire into a complaint from any persons ...." (emphasis added). Section 18(2) provides that "where the Central Information Commission or State Information Commission, 'as the case may be', is satisfied that there are reasonable grounds to inquire into the matter, it may initiate an inquiry in respect thereof", (emphasis added). Similar expressions "as the case may be" appear in sections 18(3), 18(4), 19(3) proviso 19(4), 19(7), 19(8), 19(9) and 19(10).

14. In the Commission's view, the limits of authority to decide matters and to take cognizance of matters of the State and Central Information Commissions are given in the expression "as the case may be" D.P. Mittal, in his "Interpretation of Statutes" (2nd edition, page 787) says: "The meaning of the expression "as the case may be" is what the expression says, i.e., as the situation may be; in other words, in case there are separate and distinct units, then the concept of need will apply accordingly. Where, however, there is no such separate and distinct unit, it has no significance. There is no magic in that expression ..." (emphasis added.)

15. The State Information Commission and the Central Information Commission are separate and distinct entities. Therefore, the expression "as the case may be" assumes significance in determining the jurisdiction. This jurisdiction cannot be considered only on territorial basis. For example, in Gujarat there are many offices of the Income Tax, Customs and Central Excise Departments. These Offices are under the administrative control and jurisdiction of the Union Government. For mattes of these Departments under the Right to Information Act, therefore, even if these offices may be within the territorial jurisdiction of the Gujarat State, it is the Central Information Commission which will have jurisdiction, and not the State Information Commission. Therefore, even if the office of the Bar Council of Gujarat may be in Gujarat, merely on that ground, the State Information Commission cannot acquire jurisdiction to decide complaint/ appeal under the Right to Information Act, 2005.

16. In the Commission's view merely because a body is created by a law made by Parliament, it cannot be said that the State Information Commission would have no jurisdiction to decide complaints / appeals against that body. This issue came up before the Central Information Commission in complaint No. CIC/WB/C/2006/ 00141, Shri K. Saalebaba and Shri D.R. Sharma versus Haryana Financial Corporation. The Haryana Financial Corporation was constituted under a Central Act, i.e., State Financial Corporations Act, 1951. The complainants before the Central Information Commission contended that the Haryana State Financial Corporation was a centrally established Public Authority, although it operated in the State of Haryana and therefore, the Central Information Commission has jurisdiction over it under the Right to Information Act. The Central Information Commission, in its decision dated 24-7-2006 in the above-mentioned matter held as follows:
"Section 3 of the State Financial Corporations Act 1951 deals with establishment and constitution of the State's Financial Corporations. This provides that the State Government may by a notification in the official gazette provide for establishment and constitution of a State Financial Corporation. Under Section 2(a) of the Right to Information Act, an "appropriate Government" has been defined as follows xxx In this case, the Public authority under consideration has indeed been created by a law made by the Parliament, but would have been neither constituted nor established without a notification issued by the State Government ...
... a State Financial Corporation which is established by a State cannot be deemed to come under the purview of the Central Information Commission, even if the Corporation may be set up under an enabling Act which may be Central Union Legislation ..."

17. This Commission is in agreement with the principle enunciated in the above-mentioned matter by the Central Information Commission. The principle is that even if a body is created by a law made by the Parliament, if that law itself provides for the constitution or establishment of that body by a notification issued by the State Government, then, for the purpose of the Right to Information Act, 2005, the State Information Commission would have jurisdiction over that body.

18. Applying the above-mentioned principle to the present matter, the Commission finds that the Bar Council of Gujarat is constituted under section 3(1)(a) of the Advocates Act, 1961 and not by any notification of the State Government. Besides, under section 15(1) and (2) of the said Act, a Bar Council is empowered to make rules to carry out the purposes of Chapter II of the said Act, although under section 15(3) no rules made under section 15 by a State Bar Council shall have effect unless they have been approved by the Bar Council of India. The important issue, as far as the present issue of jurisdiction is concerned is that the Bar Council of Gujarat is also not subject to any rules made by the State Government.

19. There is another test which is also required to be applied and examined. The test is whether the body in question is substantially financed directly or indirectly by the appropriate Government and which Government. This Commission has decided a matter, complaint No. 277/06-07, Shri Harisinhbhai Chavda vrs. Public Information Officer, and Registrar, Gujarat Vidyapeeth, in which the Gujarat Vidyapeeth had raised the issue of the jurisdiction of the State Information Commission on the grounds that (a) the Gujarat Vidyapeeth was not constituted or established by a law made by the State Legislature for that matter also not by a law made by the Parliament), (b) the Gujarat Vidyapeeth was declared as a deemed to be University under a notification dated 16-7-1963 of the Ministry of Education, Government of India, and (c) under the University Grants Commission Act, 1956 made by the Parliament, the Vidyapeeth's Higher Education branch was receiving 100% grant from the University Grants Commission, which is an autonomous body under the Government of India. In the hearing given by the Commission, it was found that the Gujarat Vidyapeeth, as an institution, was registered in Gujarat as a public trust under the Bombay Public Trusts Act, 1952; that it was in existence much before the Ministry of Education, by its 1963 notification, declared it be deemed to be University; that the Gujarat Vidyapeeth was neither constituted or established by the 1963 notification of the Ministry of Education, Government of India; and that in addition to getting grants from the University Grants Commission for its Higher Education Department, it was also receiving grants from the State Government of Gujarat, interalia, for its Higher Education Department. The Commission, therefore, held that "for the reasons that the Vidyapeeth is registered in Gujarat as a public trust under the Bombay Public Trusts Act, 1952 and it also receives financial support by way of grants from the Government of Gujarat, not with standing the fact that the Vidyapeeth also receives grant from the University Grants Commission, this Commission is of the view that it has jurisdiction under the said Act (the Right to Information Act, 2005) to hear the ...complaint" .

20. Applying the above-mentioned principle to the present matter, during hearing the Commission enquired form the respondent if the Bar Council of Gujarat has received any grant/ fund from State Government. The respondent has stated that the Bar Council of Gujarat has not received any grant / fund from the State Government. Therefore also, the State Information Commission would not have jurisdiction over the Bar Council of Gujarat.

21. Having regard to the above, the Commission is of the opinion that for the purpose of the Right to Information Act, the State Information Commission has no jurisdiction to decide the present matter relating to the Bar Council of Gujarat, as the said Council is constituted under the Advocates Act, 1961, which is a law made by the Parliament, and not under any notification issued by the State Government, and the said Council has not received any funds from the State Government.

22. The respondent has pleaded that the Central Information Commission has the necessary jurisdiction to take cognizance and decide the present complaint. The complainants are at liberty to make their complaints to the Central Information Commission. The respondent, however, is advised that given his submissions he should follow the rules notified by the Central Government under the Right to Information Act in respect of application fee and other related matters.

23. The complaint is accordingly disposed of with the decisions at paragraphs 20 and 21 here-in-above.
(R.N. Das)
Chief Information Commissioner
Gujarat Information Commission
Gandhinagar.

[Anil Sood]

CIC has transferred my case against Bar Counsel of UP to allahabad last year. Can u send me the link for this order so that I can now take up with CIC.

[karira]

Originally Posted by Anil Sood

CIC has transferred my case against Bar Counsel of UP to allahabad last year. Can u send me the link for this order so that I can now take up with CIC.

Just search for it on the GSIC website:

GIC - Gujarat Information Commission

[Anil Sood]

Thanks. I did get it.