* THE HON’BLE MR JUSTICE V.V.S.

RAO

+ WRIT PETITION No.16717 OF 2008

% Dated 04.12.2008

# The Public Information Officer/ Joint Secretary to Chief Commissioner

of Land Administration, Nampally, Hyderabad.
AND ANOTHER
…PETITIONERS.
and

$ 1 A.P. Information Commissioner, (under Right to Information Act,

2005), Rep by its Chief Information Commissioner, HACA Bhavan,
Hyderabad.
AND OTHERS

…RESPONDENTS.

! Counsel for petitioners: THE ADVOCATE GENERAL

^ Counsel for Respondent No.1: NONE APPEARED

Counsel for Respondent No.2: MR.P.VENUGOPAL

< GIST:

> HEAD NOTE:

? Cases referred

1. (2002) 5 SCC 294

2. (2003) 4 SCC 399 = AIR 2003 SC 2363
3. (2006) 1 SCC 212

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH

AT HYDERABAD
(Special Original Jurisdiction)

THURSDAY, THE FOURTH DAY OF DECEMBER

TWO THOUSAND AND EIGHT

PRESENT
 THE HON'BLE MR JUSTICE V.V.S.RAO
WRIT PETITION No.16717 of 2008

Between:

1 The Public Information Officer/ Joint Secretary to Chief

Commissioner of Land Administration, Nampally, Hyderabad.
2 The Appellate Authority/Secretary, Chief Commissioner of Land
Administration, Nampally, Hyderabad.
..... PETITIONERS

AND

1 A.P. Information Commissioner, (under Right to Information Act,

2005), Rep by its Chief Information Commissioner, HACA Bhavan,
Hyderabad.
2 Smt. Gousinnisa Baig, D/o. Late Nawab Khaja Moinuddin Khan,
W/o. Syed Mehmood Samiullah, aged about 40 years, Occ : Household,
r/o. 17-8-176 and 177, Chowni Nade-Ali Baig, Yakutpura, Hyderabad.
.....RESPONDENTS

Petition under Article 226 of the constitution of India praying that

in the circumstances stated in the Affidavit filed herein the High Court
will be pleased to issue Writ of Certiorari, or any other appropriate writ,
order or direction, calling for the records relating to the orders passed by
the 1st respondent in Appeal No. 889/CIC/2008, dt.2-7-2008, directing
the petitioners herein to furnish the copy of Muntakab No.3232 of 1304F
categorizing the same as public document within a period of 30 days
from the date of receipt of the order and quash the same.

Counsel for the Petitioners: THE ADVOCATE GENERAL

Counsel for the Respondent No.1: NONE APPEARED

Counsel for the Respondent No.2: MR.P.VENUGOPAL

The Court made the following:

THE HON’BLE SRI JUSTICE V.V.S.RAO

WRIT PETITION No.16717 of 2008
ORDER:
[1]
Whether denial of certified copy of Muntakhab to a person on the
ground that he/she is not a legal heir of Muntakhab holder is justified
under the provisions of Right to Information Act, 2005 (RTI Act, for
short)? This interesting question of considerable significance falls for
consideration in this writ petition filed by two public authorities of
Revenue Administration of Government of Andhra Pradesh, namely, the
Public Information Officer/Joint Secretary to Chief Commissioner of Land
Administration, Nampally, Hyderabad, and the Appellate
Authority/Secretary, Chief Commissioner of Land Administration,
Nampally, Hyderabad.
Second respondent, Smt.Gousinnisa Begum (wrongly described
as Smt.Gousinnisa Baig) filed an application before first respondent
requesting for a copy of Muntakhab No.3232 of 1304F under RTI Act.
By an order dated 28.6.2007, first petitioner refused to give certified copy
on the ground that her name does not figure in Muntakhab nor she
produced legal heir certificate issued by competent civil court
establishing her succession. First petitioner also opined that Muntakhab
is personal in nature, that it has no bearing of public interest and it need
not be disclosed. Second respondent preferred appeal before second
petitioner. The same was rejected by an order dated 23.1.2008 in
Appeal No.C3/1782/2007, on the ground that Muntakhab is not a public
document. Second respondent then preferred further appeal before
Andhra Pradesh Information Commission constituted under RTI Act. By
order dated 02.7.2008, Chief Information Commissioner directed
petitioners to furnish copy of Muntakhab to second respondent.
Second respondent filed counter affidavit. Her case is as follows.
Sardar Begum in whose favour Muntakhab No.3232 of 1304F issued
died in 1901. In succession case No.72 of 1344 Fasli (1934 A.D.) in file
No.38/58 of 1339 Fasli-Medak, succession enquiry was conducted.
Father of second respondent, Khaja Moinuddin Khan, was declared heir
of Muntakhab holder. In this background, if petitioners insist on
production of legal heir certificate, it would be highly impossible as
Sardar Begum died in 1901. Muntakhab is a public document as
defined under Section 74 of Indian Evidence Act, 1872 (Evidence Act,
for short) and petitioners cannot deny supply of certified copy of
Muntakhab.
Learned Special Government Pleader in the office of Advocate
General submits that RTI Act impliedly prohibits issue of judgments and
decrees in personam. Muntakhab being a decree or succession order
issued by competent authority in favour of a person is not a public
document and if any person claiming certified copy has to produce legal
heir certificate. Per contra, learned Counsel for second respondent
raised following contentions. Writ petition is not maintainable at the
instance of public authorities whose order is set aside. Petitioners did
not suffer any legal injury and no principle of natural justice is violated
for seeking redressal in extraordinary public law remedy under Article
226 of Constitution of India. Muntakhab is a document in respect of
which petitioners cannot claim any privilege nor supply of copy is
prohibited under Section 8 of RTI Act.
 To examine briefly history of RTI Act is a necessary initial step to
consider the question. Article 19 of Universal Declaration of Human
Rights, 1948 (UDHR) recognizes right to receive information, “every one
has right to freedom of opinion and expression; this right includes
freedom to hold opinions without interference and to seek, receive and
impart information and ideas through any area and regardless of
frontiers.” There is no gainsaying that without participation of citizens,
democracy is ineffective. To enable citizens to actively participate in
governance information should be made available. Information
regarding governmental activities, information about people whom they
elected, information about bureaucrats, information about benefits which
are conferred on citizens in various walks of life and information about
governance itself. In Association for Democratic Reforms v Union of
[2] [3]
India a n d People Union of Civil Liberties v Union of India ,
Supreme Court emphasized importance of freedom of information. In
People Union of Civil Liberties (supra), Supreme Court observed as
under.
Freedom of speech and expression, just as the equality
clause and the guarantee of life and liberty, has been very
broadly construed by this Court right from the 1950s. It has
been variously described as a “basic human right”, “a natural
right” and the like. It embraces within its scope the freedom of
propagation and interchange of ideas, dissemination of
information, which would help formation of one’s opinion and
viewpoint and debates on matters of public concern. The
importance which our Constitution-makers wanted to attach to
this freedom is evident from the fact that reasonable restrictions
on that right could be placed by law only on the limited grounds
specified in Article 19(2), not to speak of inherent limitations of
the right. In due course of time, several species of rights
unenumerated in Article 19(1)(a) have branched off from the
genus of the article through the process of interpretation by this
Apex Court. One such right is the “right to information”. The
right of the citizens to obtain information on matters relating to
public acts flows from the fundamental right enshrined in Article
19(1)(a).

Equitable, fair, transparent and justice-ridden administration

presupposes that persons be made aware of the Laws, Rules,
Regulations and Administrative Guidelines by which their affairs will be
governed. Thus right to information has a dynamic role in constitutional
governance. All information available with the Government or of
information to which the Government/public authorities have access has
to be made available to citizens whenever they ask. But like all rights,
right to information, which flows from Articles 19(1)(a), 14 and 21 of
Constitution, is not at all times and always absolute right. Being a
penumbral right to freedom or speech, right to information is subject to
State’s reasonable restriction on exercise of such right. Interests of
sovereignty, integrity, security of India, foreign relations, public order,
decency or morality are some of the factors, which might encumber
exercise of right to information.
The conference of Chief Ministers on “Effective and Responsive
Government” held on 24.5.1997 recognised the need to enact law on
right to information. Government of India appointed a working group to
examine feasibility and need for Right to Information Act to meet ends of
open and responsive governance. The working group recommended for
enactment of Freedom of Information Act. The issue was deliberated by
group of Ministers in accordance with Article 19 of Constitution and
Article 19 of UDHR. The Bill enacting Freedom of Information Act, 2002,
was passed on 06.1.2003. But the same could not be brought into
existence by notifying date of enforcement for various reasons.
National Advisory Council deliberated on the issue of ensuring
greater and more effective access to information in the background of
Freedom of Information Act. They suggested important changes to be
incorporated in Freedom of Information Act to ensure smoother and
greater actions to information. In tune with Council’s suggestion,
Government of India decided to make number of changes in the Law,
inter alia, to include establishment of an appellate machinery with
investigating powers, to review decisions of Public Information Officers,
penal provisions for failure to provide information, provisions to ensure
maximum disclosure and minimum exemptions, consistent with
constitutional provisions, and effective mechanism for access to
information. In that direction, Right to Information Act, 2005, was
enacted repealing Freedom of Information Act, 2002. RTI Act came into
force with effect from 21.6.2005. Preamble of RTI Act announces that
new Act (RTI Act) is to provide for setting aside practical regime of right
to information for citizens to secure access to information under the
control of public authorities. In order to promote transparency and
accountability in working of public authority and to provide for hierarchy
of Information Officers, RTI Act also seeks to harmonise conflicting
public interests including efficient operations by the Government and
revelation of information in actual practice required by citizen.
RTI Act has six chapters (31 sections) and two schedules.
Chapter-I contains short title and dictionary clause. The heart and soul
of RTI Act is chapter-II containing Sections 3 to 11, which deal with
citizens’ right to information and obligation of public authorities.
Chapters-III, IV and V constitute Information Commissions at various
levels and describe powers and functions of these Commissions.
Miscellaneous provisions are included in Chapter-VI and Section 22
gives overriding effect to the provisions of RTI Act notwithstanding
anything contained in Official Secrets Act, 1927, and any other Law for
the time being in force or in any instrument having effected by virtue of
any law. Section 23 deals with jurisdiction of Courts to entertain any
suit, application or proceeding in respect of any order made under RTI
Act. As this case does not involve any controversy with regard to
constitution of State Information Commission, Central Information
Commission etc., and exercise of power by these Commissions, it is not
necessary to refer to those sections.
However, it is important to notice provisions of Chapter-II. Section
2(f) of RTI Act defines "information" as to mean any material in any form,
including records, documents, memos, e-mails, opinions, advices, press
releases, circulars, orders, logbooks, contracts, reports, papers,
samples, models, data material held in any electronic form and
information relating to any private body which can be accessed by a
public authority under any other law for the time being in force. Section
3 of RTI Act confers on all citizens right to information. The term “record”
as defined in Section 2(i) of RTI Act, include any document, manuscript
and file, any microfilm, microfiche and facsimile copy of a document, any
reproduction of image or images embodied in such microfilm (whether
enlarged or not), and any other material produced by a computer or any
other device. As per section 2(j) of RTI Act, "right to information" 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
inspection of work, documents, records; taking notes, extracts or certified
copies of documents or records; taking certified samples of material;
and/or obtaining information in any electronic form. Section 4(1)(a) of
RTI Act casts a statutory duty on every public authority to maintain all
records duly catalogued and to ensure that all records are appropriated
to be computerized and connected to network so as to make them
accessible. Every public authority is required to designate Central
Public Information Officers or State Public Information Officers in all
administrative units. These Officers shall deal with request from citizens
seeking information and render reasonable assistance. Section 6 of RTI
Act enables a person to request for obtaining information. Under
Section 7 of RTI Act, Information Officer has to respond within thirty (30)
days in default of which, it shall be deemed that information is refused.
Even where access to record is required to be provided, Information
Officer shall provide assistance. Section 11 of RTI Act contains
procedure when information sought relates to a third party, which has
been treated as confidential by that third party. In such a case, a notice
shall have to be issued to third party for making a representation against
disclosure whereupon Information Officer shall take a decision. When
information is denied by Public Information Officer, the person can prefer
an appeal to such officer, who is senior in the rank to State Information
Officer. Even if there is resistance at the appellate stage, Section 18(1)
(a) of RTI Act enables aggrieved person to prefer a complaint to State
Information Commission. If the State Information Commission comes to
the opinion that information was not furnished within the time specified
under Section 7(1) of RTI Act or mala fide denied request for information,
a fine of Rs.250/- (Rupees two hundred and fifty only) per day (till
information is furnished) can be imposed.
Sections 8, 9 and 10 of RTI Act are one group of provisions, which
provide for exemption from disclosure of information and grounds for
rejection to access in certain cases as well as method of applying
principle of severability. Section 8(1) of RTI Act is relevant and reads as
under.
8. (1) Notwithstanding anything contained in this Act, there shall
be no obligation to give any citizen,—

(a) information, disclosure of which would prejudicially affect the

sovereignty and integrity of India, the security, strategic,
scientific or economic interests of the State, relation with foreign
State or lead to incitement of an offence;
(b) information which has been expressly forbidden to be
published by any court of law or tribunal or the disclosure of
which may constitute contempt of court;
(c) information, the disclosure of which would cause a breach of
privilege of Parliament or the State Legislature;
(d) information including commercial confidence, trade secrets
or intellectual property, the disclosure of which would harm the
competitive position of a third party, unless the competent
authority is satisfied that larger public interest warrants the
disclosure of such information;
(e) information available to a person in his fiduciary relationship,
unless the competent authority is satisfied that the larger public
interest warrants the disclosure of such information;
(f) information received in confidence from foreign Government;
(g) information, the disclosure of which would endanger the life
or physical safety of any person or identify the source of
information or assistance given in confidence for law
enforcement or security purposes;
(h) information which would impede the process of investigation
or apprehension or prosecution of offenders;
(i) cabinet papers including records of deliberations of the
Council of Ministers, Secretaries and other officers:

Provided that the decisions of Council of Ministers, the reasons

thereof, and the material on the basis of which the decisions
were taken shall be made public after the decision has been
taken, and the matter is complete, or over:

Provided further that those matters which come under the

exemptions specified in this section shall not be disclosed;

(j) information which relates to personal information the

disclosure of which has no relationship to any public activity or
 interest, or which would cause unwarranted invasion of the
privacy of the individual unless the Central Public Information
Officer or the State Public Information Officer or the appellate
authority, as the case may be, is satisfied that the larger public
interest justifies the disclosure of such information:

Provided that the information which cannot be denied to the

Parliament or a State Legislature shall not be denied to any
person.

Parliament has expressed very clearly on information about which

there is no obligation to give such information to any citizen. Even with
regard to exemption material under Section 8(1) of RTI Act, as per
Section 8(2) of RTI Act, if public interests in disclosure outweighs
productive interests, public authority may allow access to information
notwithstanding exemptions under Section 8(1) of RTI Act or Official
Secrets Act. Section 9 of RTI Act prohibits giving information, which
involves infringement of copy right. Under Section 9 of RTI Act, even
with regard to exempted information, if a document contains information
which is not exempt, public authority may decline to grant exempted
information and allow access to other information, which is not
exempted.
The overview of RTI Act especially Sections 6, 7, 8 read with
Sections 2(f) and 2(i) of RTI Act, leads to conclusion that endeavour of
legislation is to harmonise conflicting public and private interests. If
information is available with public authority, unless and until it is one of
the categories mentioned in Section 8(1), there should not be any
objection for furnishing information subject to procedural compliance
under RTI Act. Even the information regarding private persons can also
be made available after Section 11 of RTI Act is complied with. Theory
of ‘implied bar’ does not apply to a Law, which is made to give full scope
to fundamental rights. Section 3 of RTI Act, which confers on every
citizen the right to information is manifestation of fundamental rights
under Article 19(1)(a) of Constitution. Unless such a right is curtailed by
Law made by competent Legislature, by executive constructions the
purpose of Law cannot be defeated. Parliament has exempted only
certain categories of documents as enumerated under Section 8 of RTI
Act with regard to which there is no obligation to furnish information.
Explicit exemption of documents under Section 8(1) of RTI Act
conclusively presupposes that RTI Act does not impliedly bar furnishing
of information with regard to any information as defined under Section
2(f) read with 2(i) of RTI Act.
Next question is whether a Muntakhab can be given only to legal
heir of such Muntakhab holder? Muntakhab is essentially a document
with list of names with numbers of fields held by original grantee or his
successors. A certificate issued by competent authority recognizing
succession forms part of Muntakhab and some times by itself is a
Muntakhab. When a document recognizes successors in title and such
decision is based on enquiry essentially there is determination of rights.
[4]
It is certainly not an order or judgment in personam . It is not only
between rivals staking claim to property mentioned in Muntakhab but
declaration contained therein operates against entire world. In that
[5]
sense, it is a judgment in rem .
[6]
In Satrucharla Vijaya Rama Raju v Nimmaka Jaya Raju ,
Supreme Court explained ‘judgment in rem’ as follows.
Under the Evidence Act, Section 41 is said to incorporate
the law on the subject. The judgment in rem is defined in
English Law as “an adjudication pronounced (as its name
indeed denotes) by the status, some particular subject-matter
by a Tribunal having competent authority for that purpose.”
Spencer Bower on Res judicata defines the term as one which
“declares, defines or otherwise determines the status of a
person or a thing, that is to say, the jural relation of the person
or thing to the world generally.”

A Muntakhab declaring the rights of successors and delineating

respective shares of such successors is an order/judgment in rem. Even
if it is a judgment in personam, a public authority in possession of such
document is bound to give because under Section 2(f) of RTI Act,
‘information’ means any material in any form and includes inter alia
information relating to any private body, which can have access by
public authority. Copy of Muntakhab No.3232 of 1304F is in the custody
of Chief Commissioner of Land Administration consequent to abolition of
Board of Revenue which used to take care of matters pertaining to
succession of the heirs of grantees, who are given land grants by
sovereign. Whether it is a judgment in rem or judgment in personam in
that sense makes no difference and even a third party who has no direct
interest in Muntakhab who might have purchased property from
heirs/successors of original grantee are also entitled to seek certified
copy of Muntakhab.
The matter can also be examined with reference to Section 74 of
Evidence Act. Documents forming the Acts or records of the Acts of
sovereign authority of official bodies and Tribunals and of public officers,
Legislative, Judicial and Executive of any part of India and public
records kept in any state of private documents or public documents.
Muntakhab is certainly a public document and it cannot be treated as a
private document. Under Section 123 of Evidence Act, the State can
claim privilege from producing a document as evidence only when such
evidence is derived from unpublished official records relating to State
unless permission is obtained from Head of Department. A Muntakhab
cannot be a privilege document. When Muntakhab is a public
document, State cannot claim any privilege under Section 123 of
Evidence Act and petitioners cannot refuse supply of Muntakhab asked
by second respondent. As already concluded supra, one need not be
legal heir for obtaining a copy of Muntakhab.
Even if a Muntakhab is considered as privileged document under
Section 74 read with 123 of Evidence Act, still public authority as
defined under Section 2(h) of RTI Act cannot refuse. By reason of
Section 22 of RTI Act, provisions of RTI Act shall have effect
notwithstanding anything inconsistent therewith contained in any other
law. It only means that even if there is a question of privilege involved,
RTI Act compels furnishing of information unless and until furnishing of
information is barred under Section 8(1) of RTI Act. It is not permissible
to read implied prohibitions or invisible mandates in RTI Act.
In the result, for the above reasons, writ petition fails and is
accordingly dismissed without any order as to costs.

_______________
(V.V.S.RAO,J)
December 04, 2008.
NOTE:
L.R. Copy be marked.
(By order)
YS

[1]
Muntakhib (in Arabic) an abstract of the documents, in the older survey records
system being a list of names, with the numbers of the fields held by each. (p.844 in
THE LAW LEXICON, P.Ramanatha Aiyar, Reprint Edition 1993).
Section 2(c) of Andhra Pradesh (Telangana Area) Atiyat Enquiries Act, 1952
defines “Muntakhabs and Vasikas” as documents issued by competent authorities as a
result of Inam or succession enquiries held under the Dastoor-ul-Amal Inams or other
Government Orders on the subject and issued by way of continuance or confirmation of
Atiyat grants.
[2]
(2002) 5 SCC 294
[3]
(2003) 4 SCC 399 = AIR 2003 SC 2363
[4]
Judgment in personam: The judgment in personal is, in form as well as in
substance, between the parties claiming the right, and that is so inter-parties appears by
the record itself. (p.644, THE LAW LEXICON)
[5]
Judgment in rem is one pronounced upon status of some particular person or thing
and it binds all persons. (P.644, THE LAW LEXICON)
Judgment in rem: A ‘Judgment in rem’ is an adjudication pronounced upon the status
of some particular subject-matter by a Tribunal having competent authority for that
purpose. (P.644, THE LAW LEXICON)
[6]
(2006) 1 SCC 212