WP-1004-17-1177-2019.doc

Andreza

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO. 1004 OF 2017

AND

WRIT PETITION NO. 1177 OF 2018

-----------------------------------

WRIT PETITION NO. 1004 OF 2017

The Communidade of Mapusa, having its office

at Communidade Building, Horta Paroquial,

Mapusa, Bardez, Goa, through its Attorney

Shri Maurice L. J. D’Souza of Mapusa, Bardez,

Goa.

... Petitioner

V e r s u s

1. The Public Information Officer, Office of

the Administrator of Communidades (North

Zone), Court Junction, Mapusa, Bardez, Goa.

2. Mr. Narayan P. Parab, Dangui Colony, Alto

Duler, Mapusa, Goa. ... Respondents.

AND

WRIT PETITION NO. 1177 OF 2018

Communidade of Pilerne, House No. 485, near

St. John de Baptist Church, Pilerne Marra,

Bardez, Goa, 403 114. Through authorised

attorney Mr. Estifiano D’Mello.

... Petitioner

V e r s u s

1. Francis D’ Mello, r/o. Pilerne, Moica –

Vaddo, Bardez, Goa – 403 521.

2. Administrator of Communidades, North

Zone, Mapusa, Bardez, Goa.

3. The Goa State Information Commission,

‘Kamat Towers’, Seventh Floor, Patto, Panaji,

Goa.

... Respondents.

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Mr. John A. Lobo, Advocate for the Petitioner in WP No. 1004 of

2017.

Mr. S. Priolkar, Additional Government Advocate for the

Respondent no.1 in WP No. 1004 of 2017 and for Respondent no.2 in

WP No. 1177 of 2018.

Mr. Y. V. Nadkarni, Advocate with Ms. Simran Khadilkar,

Advocate for the Petitioner in WP No. 1177 of 2018.

CORAM: M. S. KARNIK &

B. P. DESHPANDE, JJ.

RESERVED ON :

PRONOUNCED ON :

19

th

JULY, 2024

26

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JULY, 2024

JUDGMENT (Per M. S. Karnik, J.)

1.These petitions raise common issues and hence disposed of by a

common judgment. The issue that arises in these petitions is whether

the Right to Information Act, 2005 (‘RTI Act’, for short) applies to

Petitioner-comunidades.

2.We briefly refer to the facts of the case in Writ Petition no. 1177 of

2018 :

The respondent no.1 filed an application to the respondent no.2-

Administrator of Comunidade, North Zone, Mapusa, for information

under the RTI Act as regards documents relating to the petitioner-

Comunidade. The respondent no.2 by Memorandum dated

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29.09.2014, stated that the information sought pertains to records

which are held by another Public Authority i.e. Comunidade of Pilerne

and hence it is for the Escrivao/Clerk/Registrar to supply the same.

The respondent no.1 preferred a first appeal no.

RTI/AC-II/APL/17/2014 under Section 19 of the RTI Act. On

11.11.2014, the petitioner informed the respondent no.2 that the RTI

Act does not apply to the Comunidade. The respondent no.2-

Administrator informed the respondent no.1 (applicant) that in respect

of the information sought under the application dated 05.09.2014, the

attorney of the petitioner has refused to furnish the information.

Respondent no.1 moved an application before the First Appellate

Authority in December 2014 to add the petitioner as a respondent in

the appeal and, as such, the petitioner was added as respondent no.2 in

the said appeal. The petitioner filed a reply on 17.07.2015 in the said

appeal. The First Appellate Authority disposed of the appeal on

11.03.2016 by directing the petitioner to provide the information

through the Administrator. The petitioner filed a second appeal on

18.10.2016 before the Goa State Information Commission (‘GSIC’, for

short) under Section 19 of the RTI Act. The GSIC dismissed the second

appeal no. 223/SIC/2016 on 21.03.2017 as not maintainable. Writ

Petition no. 556 of 2017 filed by the petitioner in this Court, was

disposed of by setting aside the first appellate order dated 11.03.2016

and by directing the First Appellate Authority to decide the same

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afresh. It was clarified that this Court had not dealt with the question

of the maintainability of the second appeal. The First Appellate

Authority allowed the appeal filed by the respondent no.1 on 23.11.2017

holding that the clerk or escrivao of the Comunidade of Pilerne is a

deemed PIO under the RTI Act. The GSIC dismissed the second appeal

no. 08/2018 filed by the petitioner by its order dated 30.08.2018 as not

maintainable.

3.On instructions, the learned counsel for the petitioner stated

before this Court that he will not press for challenge of prayer clause

(A) and restricted his challenge to the order dated 23.11.2017 passed by

the First Appellate Authority.

4. Learned Counsel for the petitioner stated that the petitioner is

not a Public Authority under the RTI Act and hence the Comunidade is

not covered under the provisions of the RTI Act. Our attention is

invited to the relevant provisions of the RTI Act and the various

decisions to submit that the order passed by the First Appellate

Authority directing the Comunidade to provide the information to the

respondent no.1 through the Administrator, called for interference.

Learned Counsel therefore prayed that as an attorney of the

Comunidade, it cannot be said that it falls within the ambit of the

Public Information Officer within the meaning of RTI Act.

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5. Mr. Lobo, learned Counsel for the petitioner in Writ Petition no.

1004/2017, placed reliance on the decisions in People Welfare

Society, through its President Madhukarrao Wasnik vs. State

Information Commissioner & Ors.

1

and Thalappalam Service

Cooperative Bank Limited & Ors. vs. State of Kerala & Ors.

2

in

support of his submissions to contend that the RTI Act is not applicable

to the Petitioner.

6. Mr. Nadkarni and Ms. Simran Khadilkar, learned Counsel for

the petitioner in Writ Petition no. 1177/2018, placed reliance on the

decisions in Thalappalam Service Cooperative Bank Limited &

Ors. vs. State of Kerala & Ors. (supra), Michael Charles

D’Souza vs. Ganesh V. V. Gaonkar & Ors.

3

, D. A. V. College

Trust & Management Society & Ors.

4

People Welfare Society,

through its President Madhukarrao Wasnik vs. State

Information Commissioner & Ors. (supra), Nathu Vithoba

Shingne vs. State of Maharashtra, through its Secretary,

Dept. of Forest & Revenue & Ors.

5

and Attorney of

Communidade of Serula & anr. vs. Mr. Harihar V. Chodankar

vs. Mr. Harihar V. Chodankar & Ors.

6

in support of his

submissions.

1 2024 SCC OnLine Bom 716

2 (2013) 16 SCC 82

3 1991 Mh.L.J. 1432

4 (2019) 9 SCC 185

5 2024 SCC OnLine Bom 1928

6 WP No. 422/2012 decided on 09.03.2023

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7.There was no appearance on behalf of the respondent no.1. We,

therefore, requested the Additional Government Advocate to assist us

with the counter point of view to the one canvassed by learned Counsel

for the petitioners. Mr. Priolkar invited our attention to the relevant

provisions of the RTI Act to submit that having regard to the provisions

of Section 5(4) and 5(5) of the RTI Act, which clearly provides that the

State Public Information Officer as the case may be, may seek the

assistance of any other officer as he or she considers it necessary to

discharge his or her duties properly, the escrivao/clerk Administrator

is duty bound to supply the information to the respondent no.1.

Reliance is placed on the decision of the learned Single Judge of this

Court in Attorney of Communidade & anr. vs. Mr. Harihar v.

Chodankar & Ors.

7

in support of the proposition that under Sections

5(4) and 5(5) of the RTI Act, the attorney is to be held as a deemed

Public Information Officer.

8.Heard learned Counsel for the parties. We have perused the

memo of the petition, the annexures and the impugned order. Before

we proceed to deal with the provisions of the RTI Act, it would be

appropriate to rely upon the observations made in the case of Michael

Charles D’ Souza vs. Ganesh V. V. Gaonkar & Ors.

8

which

7 Writ Petition No. 422/2012 decided on 09.03.2023.

8 1991 Mh.L.J. 1482

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explains the history of comunidades in paragraphs 4 and 5, reading

thus :

“4. In order to appreciate the contentions raised by

the petitioner and also the locus standi which the

petitioner claims, it is necessary to briefly refer to the

history of Comunidades. According to the previous

history of the region known as State of Goa, the

original residents of the village were known as

‘Gaoncars’ and their holding of the village was known

as ‘Gaoncaria’. The Gaoncars were entitled to the

shares in the income of the Comunidade of the village

which used to manage its affairs. After the

Portuguese rule came in Goa, the said system

continued but it was regulated by the Code enacted

by the Portuguese Government. The said Code was

known as Code of Comunidades. It may be seen that

there were new settlers who had come to reside in the

village and they were given shares in the income of

the Comunidade and were known as share-holders.

Their rights were also regulated by the Code of

Comunidades.

5. The Code of Comunidades which was enacted in

1933 had undergone changes as a result of many

amendments introduced therein. A new Code of

Comunidades was enacted under Legislative Diploma

No. 2070 dated 7-6-1961 (for short, the Code) which

presently governs the rights in any land belonging to

the Comunidades. After Goa was liberated and

became a part of India with effect from 19-12-1961,

the Code of Comunidades dated 15-4-1961 still

governed the rights in land belonging to the

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Comunidades. The said Code is an existing law by

virtue of Goa, Daman and Diu Administration

Act, 1962. It will be at this stage useful to refer to

the scheme of the relevant provisions of the Code

whose original is in Portuguese and its translation

made available to us in English may not be free from

some mistakes.”

9. A reference to the decision of this Court in Dr. Fenton De

Souza & anr. vs. State of Goa, Through its Chief Secretary and

Ors.

9

, is relevant at this juncture itself to appreciate the scope and

import of administrative tutelage of the State over the comunidades

provided under Article 5 of the Code. It is important to understand

that the village communities were governed by the Code of

Comunidades. Paragraphs 39, 43, 44, 47, 48 and 49 are relevant

which read thus :

39. Article 5 of the Code of Comunidades provides

that the Comunidades shall be under the

administrative tutelage of the State, in terms

established in the Code, and its immovable

properties may be granted on emphyteusis and

alienated in the manner provided in this Court. There

are several provisions in the Code of Comunidades

which relate to the control of the Administrator and

the State Government as regards the functioning of

the Comunidades. There are several provisions

relating to the administrative and fiscal controls

exercised by the Administrator and the State

9 2023 SCC OnLine Bom 2094

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Government, particularly when it comes to the

finances and properties of the Comunidades. A

Comunidade is required to obtain approval from the

Administrative Tribunal before settling or

compromising any litigation inter alia concerning

the Comunidade property.

...

43. The provisions in Article 5 of the Code of

Comunidades, which provide that the Comunidades

shall be under the administrative tutelage of the

State, cannot be interpreted to mean that the State

Government, in the exercise of its powers of tutelage

or rather its responsibility of tutelage can force the

Comunidade to give up its property even temporarily

for fees which are almost 50% to 70% lesser than the

fees resolved to be levied by the general body of the

Comunidade. Such an interpretation would amount

to doing violence to the salutary provisions imposing

the responsibilities or duty of tutelage upon the State

Government when it comes to Comunidade and the

properties of the Comunidades. Fortunately, this was

not even the stand of the State Government before

us. This was the stand of the seventh Respondent,

who was the beneficiary of the Administrators ultra

vires and ambiguous impugned communications

based upon which this respondent made a short

payment of almost Rs. 35,00,000/- or thereabouts.

44. Even the definition of “tutelage” in the Black's

Law Dictionary (Eighth Edition) relied upon by Mr.

Sardessai refers to “tutelage” being “the act of

protecting or guiding”. This means that if the

Managing Committee or even the general body of the

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Comunidade wishes to fritter away the Comunidade

property for charges lesser than the market value,

even for a temporary basis, the State Government, in

the exercise of its responsibility of tutelage, can step

in and prevent the frittering away of the Comunidade

property. Such an intervention would amount to

protection of the Comunidade or the Comunidade

properties. Such an intervention would amount to

guiding the Comunidade in the matter of disposal of

its properties in the best interest of the Comunidades

and its members.

...

47. Another co-ordinate Bench of this Court (Reis

KM. and Wadane K.L., JJ.) in the case of Trajano

D'Mcllo v. State of Goa

4

, has held that the ancient

system of Village communities of Goa was governed

by the Code of Comunidades in which many of their

practices came to be codified into clear provisions.

The Comunidades are governed by their own laws,

that is Code of Comunidades. The Code is a

compilation of customary laws codified from age-old

customs and usages and is the law of shareholders’

(Gaunkars) self-determination and for the

development of common and joint welfare interests

in the respective localities. The Code of

Comunidades was declared to be a Public Law by

Diploma Legislative No. 2070 dated 15.04.1961. The

Bench has observed that this Code acknowledges

that the properties and consequently the

Comunidade did not have the obligation to pay the

ground rents to the State Government.

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48. The Division Bench held that the beauty of the

Comunidades lies in its system of administration

(governance). Thus, though the Comunidades are

legalized and their activities codified, it had a tool by

which they could function and survive in posterity.

The Comunidade is large in system of administration

and most of the decisions taken have to be by

consensus. The decisions taken by the General Body

by proper quorum on any item or issue, is what is

meant as the say of the respective Comunidade. This

can only take place by strictly following the

procedure on any issue, within the scope and powers

of the General Body. It becomes final only in case it

is not contrary to the provisions of the Code. The

Managing Committee cannot substitute the General

Body and/or overrule the decision of the General

Body. The say of the Managing Committee is not the

say of the Comunidade to bind the Comunidade

unless supported by the minutes of the appropriate

General Body Meeting.

49. The Division Bench, significantly held that

the State continues to be under the constitutional

obligation to comply with the duty to provide the

same tutelage and respect the “Code”. The

Administrator and other staff of the administration

are lawfully bound to give timely assistance and

compliance to the provisions of the Code. The

Comunidades are the absolute owners of the land.

They reserved large tracks of land for grazing cattle

in the village for the benefit of the farmers and

cultivators and also reserved land for religious and

festival purposes such as Temples and Churches,

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Crematoriums and Cemeteries besides other

common benefits for the community. It also provides

for health centres and shelter for needy villagers and

farmers. The income from the produce as well as the

revenues generated are spent for the welfare of the

people. Thus, the Court found that the activities of

the Comunidade are regulated by the Code and it is

the duty of the State to ensure that the provisions of

the Code which have been enacted for the specific

purpose are strictly followed.

10.The aforesaid observations will help us in better understanding

the issue that arises in the present case. Now let us exercise the

relevant provisions of the Code of Communidade.

Article 1 of the Code stipulates that the comunidades or

‘gauncarias’– (association of gaucares) existing in the District of Goa

shall be governed by the provisions of the present Code, and in

particular, by the specific statutes governing each of them and in

matters where the code is silent, the general law shall apply.

The Code provides that (1) A group of two or more comunidades

under one single administrator or the group of several villages forming

one single comunidade, is called Torofo – ( group of comunidades)–

and the provisions by which the comunidades are governed shall be

applicable to them. (2) By statute it implies any written instrument or

regulation by which a comunidade had been governed, and in absence

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of these, by the practice invariably observed at least for 50 years prior

to 1904. (3) The statute of the comunidades of Goa, Salcete, Bardez,

Mormugao are, as mentioned in map which forms an integral part of

this code and that of to the other comunidades, shall be formulated

within a period of six months from the date of publication of this code

by the respective administrative boards and submitted for the approval

of the Government which also, after the approval, shall form integral

part of the same Map.

11.Article 3 of the Code stipulates that each comunidade comprises

of (a) members by birth-joneiros zonnkars; (b) shareholders; (c)

members by birth and shareholders; and (d) participants. Sub-para (1)

of Article 3 stipulates that shares of the annual income belonging to

comunidade members by birth (zonnkars) is called the zonn (profit)

and that of the shareholders is called the dividend. Sub-para (2) of

Article 3 provides that in case of dissolution of the comunidades by

means of distribution of its properties or of its values among members

by birth (zonnkars) or shareholders, the holders of these properties

substitute in all respect such members by birth (zonnkars) or

shareholders subject to all the burden lying over the respective

comunidades.

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12.Article 4 of the Code stipulates that only the comunidade

members by birth (zonnkars) and shareholders are entitled to the

profits or losses of the comunidades and only they have the rights and

duties that are guaranteed and imposed by this Code to the members of

the comunidade.

13. Article 5 of the Code stipulates that the comunidades shall be

under the administrative tutelage of the State, in terms established in

this Code and its immovable properties may be granted on emphyteusis

and alienated in the manner provided in this Code. Before proceeding

further, we note that the definition of ‘tutelage’ in Black’s Law

Dictionary is – (1) the act of protecting or guiding; guardianship. (2)

The state of being under the care and management of an international

organization such as the League of Nations or United Nations. - This

term applies, for example, to the status of a people who do not yet

benefit from a fully operational government of their own – such as

people displaced by war and living in a territory that will in the future

be given its autonomy.

14. Article 39 stipulates that the affairs of each comunidade shall be

managed by the managing committee elected every three years in the

manner prescribed in the Code and rules framed thereunder. Article

70(1) of the Code provides that the elected part of the committee may

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only be dissolved by the Government after conducting an inquiry in

which it is proved that its performance was against the interests of the

comunidades. In this inquiry the defendants must be given a hearing.

15.We now turn to Section VI of Chapter II of the Code comprising

of Articles 84 to 98 which deals with clerks/escrivao of the comunidade

and their powers and duties. Article 88(3) provides that all the

documents and records of the comunidades shall be under the custody

of the registrar, who shall be responsible to the Administrator of

comunidades. Article 94 provides that the clerks of comunidade

belong to a general cadre and shall be appointed, promoted and

transferred by the Government under the terms prescribed in the

present Code.

16.Article 100(2) of the Code stipulates that the treasurer of the

comunidade shall have the power to pay to the administration of

comunidades every month and in the first three days of the month, the

respective shares in the ordinary and extraordinary ‘derrama’ to the

National Treasury at the appropriate time, property tax and other taxes

due; and to zonnkars, shareholders, consignees and other creditors of

the comunidade, each year or at the proper seasons of the year, as per

the provisions of this code or in the respective contracts, or on the

orders of a higher authority, the profits, dividends, interest, salaries or

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other payments. We need to note that ‘Derrama’ means compulsory

financial contribution from the net revenue to make up the deficit in

the budget of the administration office of Comunidades.

17.Article 117 of the Code stipulates that the administration offices

of the comunidades are considered for all purposes as public offices.

Article 118 of the Code stipulates that in each of the Administration of

Comunidades, the respective administrator shall be appointed by the

Government on deputation from amongst the Junior grade officers of

Goa Civil Service. Article 125(4) of the Code gives power to the

administrator of comunidade to enforce the collection of

supplementary derrama when there are extraordinary expenses duly

authorised. Article 125(5) of the Code empowers the Administrator of

communidades to inform the communidades and the parties

concerned, by 15

th

December, of the share of derrama which they are

required to pay, and at appropriate time, the share of derrama which

they are required to pay, and at appropriate time, the share in an

extraordinary derrama. It further provides that the recovery of the

respective installments, either by voluntarily payment or by coercive

measures, shall be done as per the provisions in this Code.

18.Article 153 stipulates the powers of the Government under the

Code. Article 153(3) empowers the Government to appoint and dismiss

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the effective and substitute presidents of the managing committees,

dissolve the elected part of them, and appoint suitable persons to

replace them, in terms foreseen in this Code. Article 153(20) of the

Code gives power to the Government to direct the Administrator of

comunidades, without prejudice to any other remedy provided to

recover such amount or sum due, if any, from the comunidade as

arrears of land revenue and for this purpose the Administrator thereof

may forward to the Collector a certificate as early as possible in the

prescribed form mentioning, the sum due from such comunidade and

requesting that such sum may be recovered as if it were an arrear of

land revenue.

19.Chapter VI of the Code from Articles 324 to 348 deals with grant

of aforamento or emphyteus by the comunidade and the formalities

prescribed therein. As provided under Articles 335(1), the Government

on going through the file, shall consider the request of such grant of

aforamento or emphyteus. Article 354 of the Code stipulates that

remission of fees of offices of clerks of comunidades and any charges

shall be applied to the Government through the administrator

attaching to the application the copy of the minutes of the comunidade

in which it was deliberated to effect the remission and a certificate

stating that the safe of the comunidade is in position to pay the same.

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20.Article 471 of the Code stipulates what the income of the

comunidades comprises and Article 472 deals with provisions relating

to the expenses by the comunidades. Article 472(10) includes as an

expense the property tax and other taxes payable to the National

Treasury. Article 472(5) prescribes the pay of the clerk of the

comunidade. Article 472(2) mentions the tribute foros that the

comunidade pays to the National Treasury until the cessation of such

payment in terms of sole paragraph of Article 5 which stipulates that

with effect from the year 1962, the comunidade shall cease to pay the

foro to the National Treasury.

21.In the context of the aforesaid provisions, let us first consider

whether the comunidade is a “public authority” within the meaning of

Section 2(h) of the RTI Act. Section 2(h) defines ‘public authority’, thus

:

“’public authority’ means 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-

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(i) body owned, controlled or substantially

financed;

(ii) non-Government organization

substantially financed directly or

indirectly by funds provided by the

appropriate Government;”

22.A reading of the provisions of the Code in the context of clause

(a) of Section 2(h) of the RTI Act, reveals that a comunidade is not an

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 and (d)

by notification issued or order made by the appropriate Government or

that it is (i) body owned, controlled or substantially financed; and (ii)

non-Government organization substantially financed directly or

indirectly by funds provided by the appropriate Government;

23.It is significant to note that Article 1 of the Code stipulates that

the comunidades existing in the District of Goa shall be governed by the

provisions of the present Code. As such, the Code of Comunidades,

Legislative Diploma No. 2070 dated 15.04.1961 is only a regulatory

code governing the comunidades. There is nothing on record to

indicate that a comunidade is a non-governmental organization

substantially financed directly or indirectly by funds provided by the

appropriate Government to be covered under category (i) and (ii) of

Section 2(h).

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24.On a reading of the provisions of the Code, we find that the

comunidade is not owned by the appropriate Government nor can it be

said to be a body which is controlled by the appropriate Government.

According to us, the control of the appropriate Government must be a

control of substantial nature and mere supervision or regulation by a

statute would not make it a public authority within the meaning of

Section 2(h) of the RTI Act. There is nothing to suggest that the control

of the appropriate Government over the comunidade is of such a degree

which amounts to substantial control over the management of its

affairs.

25.It is pertinent to note that Article 5 of the Code stipulates that the

comunidade shall only be under the administrative tutelage of the State

and further by Article 39 of the Code, the affairs of each comunidade

shall be managed by a managing committee elected every three years

in the manner prescribed under the Code. It needs to be noted that it is

only the members and shareholders that are entitled to the profits and

losses of the comunidade. We thus find that the powers exercised by

the State Government and/or the Administrators of the comunidade

under the Code are only regulatory or supervisory in nature and would

not be so dominant to indicate a substantial control. We do not find

any provisions in the Code nor can we discern from any other materials

that there is any funding or financing directly or indirectly by the State

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Government much less substantial financing. It is pertinent to note

that a reading of Articles 100(2), 125(4), 125(5), 153(20), 472(5) and

472(10) of the Code of comunidades would show that, on the contrary,

it is the comunidade which is required to pay ‘derrama’ to the State

Government as also pay salaries to the clerks who are appointed by the

State Government. The respondent no.1 does not appear to have placed

any materials in discharge of his burden to show that the comunidade

is owned and substantially financed and in all that it is a non-

governmental organization substantially financed directly or indirectly

by funds provided by the appropriate Government. We, therefore, have

no hesitation in holding that the comunidade would not be a public

authority within the meaning of Section 2(h) of the RTI Act.

26.Having formed an opinion that the comunidade is not a public

authority within the meaning of Section 2(h) of the RTI Act, we may

now refer to Section 2(j) dealing with “right to information”, which

means the right to information accessible under this Act which is held

by or under the control of any public authority and includes the right to

(i) inspection of work, documents, records, (ii) taking notes, extracts or

certified copies of documents or records; (iii) taking certified samples

of material; and (iv) obtaining information in the form of diskettes,

floppies, tapes, video cassettes or in any other electronic mode or

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through printouts where such information is stored in a computer or in

any other device.

27.In this context it is pertinent to note the obligations of public

authorities provided under Section 4 of the RTI Act. Section 4 reads

thus :

“Section 4 - Obligations of public authorities.

(1) Every public authority shall-- (a) maintain all its

records duly catalogued and indexed in a manner and

the form which facilitates the right to information

under this Act and ensure that all records that are

appropriate to be computerised are, within a

reasonable time and subject to availability of

resources, computerised and connected through a

network all over the country on different systems so

that access to such records is facilitated;

(b) publish within one hundred and twenty days from

the enactment of this Act,--

(i) the particulars of its organisation, functions

and duties;

(ii) the powers and duties of its officers and

employees;

(iii) the procedure followed in the decision

making process, including channels of

supervision and accountability;

(iv) the norms set by it for the discharge of its

functions;

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(v) the rules, regulations, instructions,

manuals and records, held by it or under its

control or used by its employees for

discharging its functions;

(vi) a statement of the categories of documents

that are held by it or under its control;

(vii) the particulars of any arrangement that

exists for consultation with, or representation

by, the members of the public in relation to the

formulation of its policy or implementation

thereof;

(viii) a statement of the boards, councils,

committees and other bodies consisting of two

or more persons constituted as its part or for

the purpose of its advice, and as to whether

meetings of those boards, councils, committees

and other bodies are open to the public, or the

minutes of such meetings are accessible for

public;

(ix) a directory of its officers and employees;

(x) the monthly remuneration received by each

of its officers and employees, including the

system of compensation as provided in its

regulations;

(xi) the budget allocated to each of its agency,

indicating the particulars of all plans,

proposed expenditures and reports on

disbursements made;

(xii) the manner of execution of subsidy

programmes, including the amounts allocated

and the details of beneficiaries of such

programmes;

(xiii) particulars of recipients of concessions,

permits or authorisations granted by it;

(xiv) details in respect of the information,

available to or held by it, reduced in an

electronic form;

(xv) the particulars of facilities available to

citizens for obtaining information, including

the working hours of a library or reading room,

if maintained for public use;

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(xvi) the names, designations and other

particulars of the Public Information Officers;

(xvii) such other information as may be

prescribed; and thereafter update these

publications every year;

(c) publish all relevant facts while formulating

important policies or announcing the decisions which

affect public;

(d) provide reasons for its administrative or quasi-

judicial decisions to affected persons.

(2) It shall be a constant endeavour of every public

authority to take steps in accordance with the

requirements of clause (b) of sub-section (1) to

provide as much information suo motu to the public

at regular intervals through various means of

communications, including internet, so that the

public have minimum resort to the use of this Act to

obtain information.

(3) For the purposes of sub-section (1), every

information shall be disseminated widely and in such

form and manner which is easily accessible to the

public.

(4) All materials shall be disseminated taking into

consideration the cost effectiveness, local language

and the most effective method of communication in

that local area and the information should be easily

accessible, to the extent possible in electronic format

with the Central Public Information Officer or State

Public Information Officer, as the case may be,

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available free or at such cost of the medium or the

print cost price as may be prescribed.

Explanation.--For the purposes of sub-sections (3)

and (4), "disseminated" means making known or

communicated the information to the public through

notice boards, newspapers, public announcements,

media broadcasts, the internet or any other means,

including inspection of offices of any public

authority.

28.Section 5 of the RTI Act deals with designation of Public

Information Officers. This section places an obligation on every public

authority to designate as many officers as the Central Public

Information Officers or State Public Information as may be within the

time frame stipulated therein in all administrative units or offices

under it as may be necessary to provide information to persons

requesting for information under the RTI Act. Much turns on the

applicability of sub-section (4) and (5) of the RTI Act and hence the

provisions of Section 5 needs to be extracted for a proper appreciation

of the issue. Section 5 reads thus :

“Section 5 - Designation of Public Information

Officers.

(1) Every public authority shall, within one hundred

days of the enactment of this Act, designate as many

officers as the Central Public Information Officers or

State Public Information Officers, as the case may

be, in all administrative units or offices under it as

may be necessary to provide information to persons

requesting for the information under this Act.

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(2) Without prejudice to the provisions of sub-

section (1), every public authority shall designate an

officer, within one hundred days of the enactment of

this Act, at each sub-divisional level or other sub

district level as a Central Assistant Public

Information Officer or a State Assistant Public

Information Officer, as the case may be, to receive

the applications for information or appeals under

this Act for forwarding the same forthwith to the

Central Public Information Officer or the State Public

Information Officer or senior officer specified under

sub-section (1) of section 19 or the Central

Information Commission or the State Information

Commission, as the case may be:

Provided that where an application for information

or appeal is given to a Central Assistant Public

Information Officer or a State Assistant Public

Information Officer, as the case may be, a period of

five days shall be added in computing the period for

response specified under sub-section (1) of section 7.

(3) Every Central Public Information Officer or

State Public Information Officer, as the case may be,

shall deal with requests from persons seeking

information and render reasonable assistance to the

persons seeking such information.

(4) The Central Public Information Officer or State

Public Information Officer, as the case may be, may

seek the assistance of any other officer as he or she

considers it necessary for the proper discharge of his

or her duties.

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(5) Any officer, whose assistance has been sought

under sub-section (4) , shall render all assistance to

the Central Public Information Officer or State Public

Information Officer, as the case may be, seeking his

or her assistance and for the purposes of any

contravention of the provisions of this Act, such

other officer shall be treated as a Central Public

Information Officer or State Public Information

Officer, as the case may be.” (emphasis supplied)

29. Thus, Section 5(4) of the RTI Act stipulates that the Central

Public Information Officer or State Public Information Officer, as the

case may be, may seek assistance of any other officers as he or she

considers it necessary for the proper discharge of his or her duties. A

reading of the provision of Section 5(5) of the RTI Act, indicates that

any officer whose assistance has been sought under sub-section (4),

shall render all assistance to the Central Public Information Officer or

State Public Information Officer, as the case may be, seeking his or her

assistance and for the purposes of any contravention of the provisions

of this Act, such other officer shall be treated as a Central Public

Information Officer or State Public Information Officer, as the case

may be.

30.Therefore, once we hold that the comunidade is not a public

authority within the meaning of Section 2(h) of the RTI Act, there is

then no obligation on it to fulfill the requirements of Section 4 in

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maintaining the records or publications stipulated therein or providing

reasons for administrative or quasi judicial decisions to the affected

persons. The right to information in terms of Section 2(j) is that

information accessible under the RTI Act, which is held by or under the

control of any public authority. Furthermore, there is no obligation on

the comunidade to designate any Central Public Information Officer or

State Public Information Officer, as the case may be, to provide

information to persons requesting for information under this Act.

Once the comunidade is not obligated to designate Central Public

Information Officer/s or State Public Information Officer/s as it is not a

public authority, there is no question of applicability of Section 5(4)

and 5(5) to the comunidades.

31.The question then is that whether the clerk/escriavo or the

Administrator is obliged to furnish the information under the RTI Act

on an application made by the person seeking information merely

because they are appointed by the State Government. As indicated

earlier, Articles 84 to 98 deals with clerks/escriavo of the comunidade

and their powers and duties. Article 83(3) stipulates that all the

records and the documents of the comunidade shall be under the

custody of the clerks, who shall be responsible to the Administrator of

comunidade. Article 94 of the Code provides that the clerk of

comunidade belongs to a general cadre and shall be appointed,

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promoted and transferred by the Government under the terms

prescribed by the Code. No doubt, Article 117 stipulates that the

Administrative Offices of the comunidades are considered for all

purpose as public offices. This, however, does not mean that merely

because the records of the comunidade are in the custody of the clerk or

that the information is available with the Administrator, the application

can be made to the Administrator or clerk to supply any information

relating to the comunidades under the RTI Act. The reason being that

the information essentially pertains to the affairs of the comunidade,

which is not public authority. It is in the capacity as a regulator or as a

supervisor or as a custodian of records that the information is available

with the Administrator or clerk appointed by the State Government.

Such regulatory control by the Administrator in respect of the matters

stipulated under the Code already referred to herein before can by no

stretch of imagination be said to be so deep and pervasive to bring the

Comunidades within the meaning of the term ‘public authority’.

32.In our opinion, merely because the records are in the custody of

the clerk or that the information is available with the Administrator,

will not bring the Comunidade within the ambit of RTI Act. For the

RTI Act to apply, the comunidade has to be necessarily regarded as a

public authority within the meaning of Section 2(h), for it is then and

only then that the requirement of designation of Public Information

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Officer will arise under Section 5 of the RTI Act. Therefore, as the

comunidade is not a public authority, the question of applicability of

Section 5(4) or Section 5(5) for the purpose of seeking assistance by the

Administrator from the clerk with whom the records are available will

not arise.

33.Shri Priolkar, learned Additional Government Advocate, relied

upon the decision of this Court in Attorney of Communidade &

anr. vs. Mr. Harihar Chodankar & Ors. (supra) in support of his

submission that the Administrator has to be regarded as deemed Public

Information Officer in terms of Sections 5(4) and 5(5) of the Act. We

are afraid that this decision is distinguishable on facts. In paragraph 6,

this Court observed that the main issue involved is not whether the

Attorney of the Comunidade is primarily a Public Information Officer.

Thus, the issue raised in this petition did not arise for consideration in

the matter before the learned Single Judge. It was in the facts that this

Court was of the opinion that the attorney of the comunidade supplied

part of such information but the balance was not supplied, that the

Administrator was justified in seeking assistance from the attorney and

even the attorney by partly supplying such information did not resist

this position. The issue was thus not concluded. The issue whether the

attorney was primarily a Public Information Officer was not finally

adjudicated. It needs mention that in the facts of the case before the

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learned Single Judge, it was observed that there was no jurisdictional

error or even otherwise any error in treating the attorney as the deemed

Public Information Officer. In such circumstances, this Court did not

interfere with the impugned orders made by the authorities under the

RTI Act, 2005. The observations of the Court thus were prima facie in

nature.

34.Consequently, the Petitions are allowed.

35.Writ Petition No. 1004 of 2017 is allowed in terms of prayer

clause A, which reads thus :

“A. This Hon’ble Court be pleased to issue an

appropriate writ, order or direction quashing and

setting aside the order dated 04.07.2017 of the State

Information Commission Annexed hereto as Exhibit

‘A’”

36.In Writ Petition No. 1177 of 2019, the impugned Order dated

23.11.2017 passed by the First Appellate Authority is quashed and set

aside.

37.Rule is made absolute with no order as to costs.

B. P. DESHPANDE, J. M. S. KARNIK, J.

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