occurrence and the manner in which the three persons on the prosecution side were killed are not in dispute. Hence, the only question that requires consideration by the Court is in regard to the identification of the respondents as the accused.= acquitted all the 14 accused (respondents in the present appeal) all of whom were found guilty of rioting and arson and committing murder of three people by the trial court and 8 of whom were awarded the death penalty while the remaining 6 were given the punishment of life imprisonment. = The prosecution examined five eye witnesses in support of its case. Brij Pal Singh (PW.1) is the Informant. He is the father of Manju @ Manoj and brother of Amar Singh, two of the three persons killed in the occurrence. In the examination-in-chief he fully supported the prosecution case and named all the fourteen respondents as the accused. The High Court, however, points out that he did not assign any role or attribute any weapon to any of the fourteen accused. In cross-examination he stated that he saw his son, Manju, being caught by the accused and being taken towards west. He was taken near the house of Awadhesh Nai where he was assaulted with a lathi as a result of which he fell down and then he was shot. He followed his son as he was caught by the accused and was being taken towards the house of Awadhesh Nai and he saw him being shot from a distance of about 2-3 steps. The High Court points out that though claiming to be a witness of his son being shot from such close distance, he evaded the question as to who were the actual accused who had caught him, assaulted him with lathi or shot at him. Further, in his statement before the police he had said that as the accused set fire to his chappar he fled away in a certain direction. From the site plan prepared by the Investigating Officer it appeared that from the direction in which PW.1 had ran away it wouldn’t be possible to see the spot where Manju was allegedly shot. PW.1, of course, denied having made any such statement before the Investigating Officer, but the I.O. confirmed that he had said so in his statement under section 161 of the Code of Criminal Procedure. 14. Ashok Kumar (PW.2) is the son of Ram Chander, the third person killed in the occurrence. The High Court has pointed out a number of anomalies in his deposition before the court. Further, with reference to his statement made under section 161 of the Code of Criminal Procedure there appears to be a clear attempt on his part to improve the prosecution case and to try to implicate more and more persons as accused. 15. Jagbir (PW.3) is the nephew of Brij Pal Singh (PW.1) and son of the deceased Amar Singh. In his examination-in-chief he supported the prosecution case and named all the accused without assigning to any one of them any specific role. The High Court has pointed out that his statements made in the cross- examination are equally riddled with inconsistencies and also show an effort to improve the prosecution case from stage to stage. 16. Awadhesh (PW.4) was not named as a witness in the FIR. He also appears to support the prosecution case but on a closer scrutiny of his deposition, the High Court has pointed out a number of discrepancies. 17. Bhurey (PW.5) is one of the injured witnesses. He has named the respondents as the accused but at the same time he said that some of the miscreants were covering their faces. He was unable to disclose how and at whose hands he himself received the injuries.- The High Court has examined the prosecution witnesses in considerable detail and has observed that in the background of the long and very hostile enmity between the two sides and the witnesses being highly interested, it would not be safe to rest the respondents’ conviction on their evidences. 19. On going through the judgments of the trial court and the High Court and the depositions of the prosecution witnesses, we are unable to hold that the view taken by the High Court is unreasonable or implausible. We are satisfied that in the overall facts and circumstances of the case, no interference is warranted with the judgment of the High Court in exercise of the powers under Article 136 of the Constitution of India. The appeal is, accordingly, dismissed.

Page 1
N0N-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.677 OF 2006
STATE OF U.P. … APPELLANT
VERSUS
RAJESHWAR & ORS. … RESPONDENTS
J U D GM E N T
Aftab Alam,J.
1. This appeal by special leave, at the instance of the State of Uttar Pradesh
is directed against the judgment and order dated December 21, 2001 passed by
the Allahabad High Court in a batch of criminal appeals. By the impugned
judgment the High Court allowed all the appeals (that had come to it from a
common judgment and order passed by the trial court) and acquitted all the 14
accused (respondents in the present appeal) all of whom were found guilty of
rioting and arson and committing murder of three people by the trial court and 8
of whom were awarded the death penalty while the remaining 6 were given the
punishment of life imprisonment. 
1Page 2
2. The case of the prosecution is based on the oral statement made by one
Brij Pal Singh (PW.1) at Kayamganj police station before the Inspector Incharge of that police station. Brij Pal Singh stated that he was a resident of
Mauza Ballu Baheta, police station Kayamganj and there was old enmity and
litigations between the Harijans and the Brahmins living in his village. On
account of the enmity, the accused, namely, Rajeshwar (accused no.1), Ramveer
(accused no.2), Rajveer (accused no.3), Patiram @ Patanga (accused no.4),
Rajesh @ Tillu (accused no.5), Omveer (accused no.6), Ved Ram (accused
no.7), Ram Sevak (accused no.8), Ram Sanehi (accused no.9), Ram Baran
(accused no.10), Dayashankar (accused no.11), Radhey (accused no.12), Ram
Prakash (accused no.13) and Ramua Jatav (accused no.14) along with four-five
unknown accused (whom he could identify by face), armed with country made
guns, rifles and kattas, came and surrounded their mohalla. The accused
threatened that anybody trying to run away would not be spared. They then set
fire to the informant’s Chhappar and Baithak and the houses of Rambir
Garadia, Nek Ram, Awadhesh Nai and also the house of Gangadeen. When the
informant and the other victims of the assault tried to run away to save their
lives, the accused caught the informant’s son Manju @ Manoj and Ram
Chandra Nai and assaulted them by lathis. They shot Manju near the house of
2Page 3
Awadhesh Nai and threw him in the house that had been set ablaze by them.
The informant’s brother Amar Singh ran towards Sadhu’s hut to save his life.
But he was shot and killed there. The accused caught and took Ram Chander
Nai towards south in the direction of the house of the sweeper and shot and
killed him there. As a result of the indiscriminate firing made by the accused,
one Bhura of the informant’s village got pellet injuries. The entire village was
shocked. They beat up children and ladies. Huge loss was caused due to the
burning of the houses. Besides the informant’s house, the accused also burnt
the houses of their neighbours, the Nais, and the Telees because they used to sit
with the informant and his people. The informant was somehow able to save his
life and came to the police station to report the offences committed by the
accused. He further said that the occurrence was seen by Jagbir son of Amar
Singh (PW.3), Ashok son of the deceased Ram Chander (PW.2), Smt. Mahadevi
wife of the deceased Ram Chander (not examined), and a number of others who,
though named in the FIR, were not examined as prosecution witnesses. He
concluded by saying that after committing the offences, the accused had fled
away towards Ganga’s Katri.
3. The statement of Brij Pal Singh was reduced to writing and was
incorporated in the formal FIR on the basis of which the police took up
3Page 4
investigation. On completion of investigation, the police submitted charge-sheet
against all the accused named in the FIR besides three other persons, namely,
Kunwar Pal, Rajender and Ram Lal.
4. The respondents- accused did not deny the occurrence but took the plea
that they had no connection with it. According to the accused, it was a case of
dacoity taking place in the dark hours of the night by unknown culprits and they
were falsely implicated in the case on account of previous enmity.
5. All the accused named in the charge-sheet were put on trial. The 14
accused named in the FIR were charged under sections 148, 302/149, 307/149
and 436/149. The other three accused who were not named in the FIR were
charged for the same substantive offences read with section 120B of the Penal
Code. At the conclusion of the trial, the trial court found and held that the
prosecution was not able to establish charges against the three accused who
were not named in the FIR. It, accordingly, acquitted them. But the rest of the
14 accused (the respondents in this appeal) were held guilty of the offences of
which they were charged and were convicted under sections 148, 302/149,
307/149 and 435/149. Having been found guilty of rioting, arson and
commission of murder, Rajeshwar, Ramveer, Rajveer, Omveer, Ram Sewak,
Daya Shankar, Ram Prakash @ Lojhadi and Radhey were sentenced to death.
4Page 5
The other six accused were given the punishment of life imprisonment. All the
accused were fined a sum of Rs.10,000/- each with the default sentence of two
years imprisonment.
6. On appeal by the accused, as noted above, the High Court by judgment
and order dated December 21, 2001 set aside the judgment of the trial court and
acquitted all the accused.
7. It is noted above that occurrence and the manner in which the three
persons on the prosecution side were killed are not in dispute. Hence, the only
question that requires consideration by the Court is in regard to the
identification of the respondents as the accused.
8. Before proceeding further, it would be useful to take note of certain
special features of this case. Old and bitter enmity between the two sides is
admitted by the prosecution. As a matter of fact, that is said to be the cause
behind the attack on the members of the prosecution party. From the depositions
of the prosecution witnesses it also comes to light that there have been a number
of killings on both sides.
9. The other relevant fact to be taken note of is that Rajeshwar (accused 1),
Ramveer (accused 2), Rajbir (accused 3), Patiram @ Patanga (accused 4),
5Page 6
Rajesh @ Tillo (accused 5) are all full brothers. Omveer (accused 6) and
Vedram (accused 7) are full brothers. Ramsevak (accused 8) and Ram Sanehi
(accused 9) are full brothers. Ram Baran (accused 10) and Dayashankar
(accused 11) are full brothers. Ram Prakash @ Lojhadi (accused 12) and
Radhey (accused 17) are full brothers. Further, of the 3 acquitted accused,
Kunwar Pal and Rajendra were full brothers. Thus, there appears to be a
propensity to implicate the members of the same family.
10. Thirdly, though all the accused are named in the FIR and also in the
depositions of the prosecution witnesses, the witnesses appear to be careful not
to attribute any specific role or any specific weapon to any of the accused and
all the fourteen accused are mentioned in an ominous way.
11. These are the facts and circumstances that seem to have weighed with the
High Court in appreciating the prosecution evidence and taking the view that the
prosecution witnesses do not appear natural and do not inspire confidence.
12. The prosecution examined five eye witnesses in support of its case. Brij
Pal Singh (PW.1) is the Informant. He is the father of Manju @ Manoj and
brother of Amar Singh, two of the three persons killed in the occurrence. In the
examination-in-chief he fully supported the prosecution case and named all the
fourteen respondents as the accused. The High Court, however, points out that
6Page 7
he did not assign any role or attribute any weapon to any of the fourteen
accused. In cross-examination he stated that he saw his son, Manju, being
caught by the accused and being taken towards west. He was taken near the
house of Awadhesh Nai where he was assaulted with a lathi as a result of which
he fell down and then he was shot. He followed his son as he was caught by the
accused and was being taken towards the house of Awadhesh Nai and he saw
him being shot from a distance of about 2-3 steps.
13. The High Court points out that though claiming to be a witness of his son
being shot from such close distance, he evaded the question as to who were the
actual accused who had caught him, assaulted him with lathi or shot at him.
Further, in his statement before the police he had said that as the accused set fire
to his chappar he fled away in a certain direction. From the site plan prepared
by the Investigating Officer it appeared that from the direction in which PW.1
had ran away it wouldn’t be possible to see the spot where Manju was allegedly
shot. PW.1, of course, denied having made any such statement before the
Investigating Officer, but the I.O. confirmed that he had said so in his statement
under section 161 of the Code of Criminal Procedure.
14. Ashok Kumar (PW.2) is the son of Ram Chander, the third person killed
in the occurrence. The High Court has pointed out a number of anomalies in his
7Page 8
deposition before the court. Further, with reference to his statement made under
section 161 of the Code of Criminal Procedure there appears to be a clear
attempt on his part to improve the prosecution case and to try to implicate more
and more persons as accused.
15. Jagbir (PW.3) is the nephew of Brij Pal Singh (PW.1) and son of the
deceased Amar Singh. In his examination-in-chief he supported the prosecution
case and named all the accused without assigning to any one of them any
specific role. The High Court has pointed out that his statements made in the
cross- examination are equally riddled with inconsistencies and also show an
effort to improve the prosecution case from stage to stage.
16. Awadhesh (PW.4) was not named as a witness in the FIR. He also
appears to support the prosecution case but on a closer scrutiny of his
deposition, the High Court has pointed out a number of discrepancies.
17. Bhurey (PW.5) is one of the injured witnesses. He has named the
respondents as the accused but at the same time he said that some of the
miscreants were covering their faces. He was unable to disclose how and at
whose hands he himself received the injuries.
8Page 9
18. The High Court has examined the prosecution witnesses in considerable
detail and has observed that in the background of the long and very hostile
enmity between the two sides and the witnesses being highly interested, it
would not be safe to rest the respondents’ conviction on their evidences.
19. On going through the judgments of the trial court and the High Court and
the depositions of the prosecution witnesses, we are unable to hold that the view
taken by the High Court is unreasonable or implausible. We are satisfied that in
the overall facts and circumstances of the case, no interference is warranted with
the judgment of the High Court in exercise of the powers under Article 136 of
the Constitution of India. The appeal is, accordingly, dismissed.
…………………………...J.
(Aftab Alam)
…………………………...J.
(R.M. Lodha)
New Delhi,
April 16, 2013.
9

The trial court further observed that since the accused denied the very occurrence, no reliance could be placed on the alleged injuries suffered by them, insofar as the trial of S.C. No. 84/1993 is concerned.- Nonetheless, we have gone through the records to see the individual culpability of the seven appellants but we find that the judgment of the High Court is faultless and the conviction of the seven appellants has been arrived at correctly and on a proper appreciation of the prosecution evidence. 20. We, thus, find no merit in these appeals which are accordingly dismissed. The bail bond of Gangappa Ningappa Ugarkhod, appellant in Criminal Appeal No. 683 of 2005, is cancelled and he is order to surrender within 4 weeks, failing which the trial court is directed to take coercive steps to take him in custody and to make him serve out the remaining sentence.

Page 1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.683 OF 2005
GANGAPPA NINGAPPA UGARKOHOD … APPELLANT
VERSUS
STATE OF KARNATAKA … RESPONDENT
WITH
CRIMINAL APPEAL NO.1064 OF 2005
AND
CRIMINAL APPEAL NO.47 OF 2007
J U D G M E N T
Aftab Alam, J.
1. These three appeals arise from a common judgment and order passed
by the Karnataka High Court. By the impugned judgment, the High Court
1Page 2
disposed of two appeals, which came to it from a common judgment and
order passed by the trial court. The High Court allowed the appeals insofar
as Smt. Nagavva (accused no. 2) and Doddappa Ningappa Ugarkhod
(accused no. 13) are concerned and acquitted them of all the charges. In
regard to the rest of the accused (the present appellants before this Court) the
appeals were dismissed and their conviction and the sentences given to them
by the trial court was confirmed by the High Court.
2. Criminal Appeal No. 47 of 2007 (that was the last among the three
appeals to come to this Court) is at the instance of Sataveer Basappa Hariyal
(accused no.1: He died on November 10, 2009 during the pendency of the
appeal), Honnappa Shiddappa Banni (accused no. 3), Beerappa Shiddappa
Huggi (accused no. 9) and Yallappa Kenchappa Vibhuti (accused no. 16).
Criminal Appeal No. 1064 of 2005 has been filed by Beerappa Demasheppa
Deshanur (accused no. 5) and Maruti Demasheppa Deshanur (accused no.
6). All the six appellants in these two appeals are convicted under section
302 read with section 149 and some other ancillary sections of the Penal
Code. For committing murder, they are sentenced to undergo rigorous
imprisonment for life and a fine of Rs. 2,000/- each with the default sentence
of imprisonment for six months. They are also given some lesser
2Page 3
punishments for the various other offences but all the sentences are directed
to run concurrently.
3. Criminal Appeal No. 683 of 2005 (which was the first among the
three to come to this Court) is filed by Gangappa Ningappa Ugarkhod
(accused no. 12). His conviction is mainly under section 326 read with
section 149 beside some other ancillary sections of the Penal Code. He is
sentenced under section 326/149 to rigorous imprisonment for three years
and a fine of Rs. 2,000/- with the default sentence of imprisonment for six
months. The relatively lesser sentences for other offences in his case too are
directed to run concurrently with the main sentence.
4. Both the appellants-accused and the members of the prosecution party
belong to the same family and live in the same village. According to the
prosecution, Sataveer (accused no.1: appellant no. 1 in Criminal Appeal No.
47 of 2007) is the step brother of Siddappa. He carried a grudge against his
father Basappa and the step brother Siddappa due to his father’s refusal to
give him land in excess of his step brother. About three months prior to the
occurrence, giving rise to the present case, there was an incident of assault
by Sataveer and his mother Nagavva on Basappa. At that time Ningappa (the
Complainant) had taken Basappa to hospital and had also prevailed upon
3Page 4
Basappa to lodge a police report against Sataveer. Sometime later, the starter
of the electric pump set in the land of Ningappa was stolen. He suspected the
hand of Sataveer and his men in the theft and had filed a complaint with the
police against some of the accused in the present case. This had further
strained the relations between the two sides. Two days before the occurrence
the complainant’s son Rudrappa had gone to fetch water from the bore-well.
There the daughter of Beerappa (accused No. 9: appellant no. 3 in Criminal
Appeal No. 47 of 2007) quarreled with him and abused him. On the same
evening Beerappa and his people went to the house of the complainant and
gave threats that they would finish off the complainant’s men.
5. On October 12, 1991 when Ningappa, his son Rudrappa and his
younger brother Basavanneppa were in the farm house, Basavanneppa’s
wife Kasturi (PW.3) came there at about 7.00 a.m. and asked them to bring
the cattle from the house to the farm house. The complainant and his brother
then proceeded from the farm house for their house; Kasturi was also
coming behind them. On the way, as they passed in front of the Kannada
School in village Maradi Nagalapur, accused nos. 1 to 28, armed with
sickles and clubs came out from the side of the house of accused no. 9. They
were shouting at and abusing Ningappa. On hearing their shouts, Kasturi,
followed by Ningappa’s wife, Shanthavva (PW.4), Basavanneppa’s third
4Page 5
wife, Balavva and Ningappa’s second son, Anand (PW.7), also came there.
Ningappa’s younger sister, Gangavva (PW.5), also arrived at the spot. The
accused began to assault Basavanneppa. He was given stick blows by
accused nos. 1 to 5 causing grievous injuries. Accused nos. 1, 2, 5, 9 and 16
assaulted PW.1. Accused nos. 2, 3, 6, 9 and 16 also assaulted Basavanneppa,
who died as a result of the assault. PW.1 also received grievous injuries.
When PWs 3, 4, 5 and 7 tried to save PW.1, they were also assaulted by
accused nos. 16 to 28.
6. Ningappa (PW.1) lodged a complaint against the accused for offences
punishable under sections 143, 147, 148, 302, 326, 324, 506 and 504 read
with section 149 of the Penal Code. The injured on the prosecution side were
sent to the hospital for treatment.
7. In the meanwhile, some of the accused went to Belgaum and got
themselves admitted in Belgaum Hospital. On intimation, the PSI from
Belgaum P.S. went to the hospital and took down the statement of Sataveer
(accused no. 1) in which he made the allegation of assault on him and his
people by Ningappa and his party. On the basis of his statement a case was
registered against Ningappa and some of the prosecution witnesses which
was transferred to Bailhongal P.S. and was investigated along with the FIR
5Page 6
of the present case. After completion of investigation, a charge-sheet was
filed against the present appellants, accused in the case registered as S.C.
No. 84/1993.
The counter case instituted on the basis of the complaint of
accused no. 1 was numbered as S.C. No. 71/1993.
8. Both the cases were tried together by the Additional Sessions Judge I,
Belgaum. In the counter case (S.C. No. 71/1993) there were nine accused
including PWs 1, 3, 4, 5 and 8 of the present case. All the accused in that
case were finally acquitted by judgment and order dated September 7, 2001
passed by the trial court.
9. In the present case, the accused pleaded not guilty and claimed to be
tried. The prosecution in support of its case examined 28 witnesses; PWs 1
to 5, 7 and 8 are eye-witnesses; PW.6 is the doctor who medically
exmanined Ningappa, Ganganvva Nagappa Chandaragi, Smt. Shanthavva,
Balavva Basappa Chandaragi, Anand Ningappa Chandaragi and Smt.
Kasturi and proved their injury reports which were marked as Exhibit Nos.
P.2, P.3, P.4, P.5, P.6 and P.7 respectively. He also examined the two sticks,
six bamboo sticks and four pieces of stone, seized by the police and gave his
opinion that the injuries caused to the persons examined by him, except
injury no. 5 of Ningappa, could be caused by those articles.; PW.17 is
6Page 7
another doctor who had medically examined Ningappa and who proved his
injury report Exhibit No. P.15 before the court. PW.25 is the doctor who
held post-mortem on the deceased. He proved the post-mortem report made
by him which was marked as Exhibit No. P.27. PWs 26, 27 and 28 are the
police officers who investigated the case.
10. In course of the trial, two, among the 28 accused on trial, died. At the
conclusion of the trial, the trial court by its judgment and order dated
September 7, 2001 in Sessions Case No. 84/1993 acquitted 16 of the accused
but found the remaining 10 guilty of the charges and convicted accused nos.
1, 2, 3, 5, 6, 9 and 16 under section 302/149 of the Penal Code, accused no.
12 and 13 under section 326/149 of the Penal Code and accused no. 25 under
section 324/149 of the Penal Code.
11. Out of the 10 convicted accused, 9 went to the High Court in two
appeals being Appeal Nos. 1490 of 2001 and 1491 of 2001 (accused no. 25
convicted under section 324/149 of the Penal Code did not file any appeal).
12. The High Court, by its judgment and order dated December 18, 2004,
acquitted accused nos. 2 and 13 but confirmed the conviction and sentence
given to the rest of the accused, who are now in appeal before this Court.
7Page 8
13. The medical evidence fully supports the prosecution case. We have
also gone through the depositions of the seven eye-witnesses and the ocular
account of the occurrence is quite unimpeachable.
14. However, the learned counsel appearing for the appellants strongly
submitted that some of the accused had received injuries and those remained
unexplained by the prosecution. He, therefore, contended that the occurrence
clearly did not take place in the manner presented by the prosecution and for
that reason alone the prosecution case deserved to be junked.
15. Both the trial court and the High Court have taken this aspect of the
matter in due consideration. The trial court has pointed out, and in our view
quite rightly that the defense in this case completely denied the occurrence.
According to the defense, the occurrence took place in a different manner
and at a completely different place as alleged in the counter case being S.C.
No. 71/1993.
The trial court further observed that since the accused denied
the very occurrence, no reliance could be placed on the alleged injuries
suffered by them, insofar as the trial of S.C. No. 84/1993 is concerned.
Moreover, the defense story, which was the prosecution case in S.C. No.
71/1993, was disbelieved and hence, the alleged injuries suffered by the
accused were of no help to them in this case.
8Page 9
16. We are in agreement with the view taken by the trial court and the
High Court.
17. However, having regard to the fact that, to start with, there were a
number of accused and many of them were acquitted by the trial court and
two by the High Court, we suggested to the counsel appearing for the
appellants to address the Court in regard to the individual roles of the
different appellants so that their individual culpability may be separately
examined.
18. The counsel, however, insisted on challenging the prosecution case in
its entirety.
19. Nonetheless, we have gone through the records to see the individual
culpability of the seven appellants but we find that the judgment of the High
Court is faultless and the conviction of the seven appellants has been arrived
at correctly and on a proper appreciation of the prosecution evidence. 
20. We, thus, find no merit in these appeals which are accordingly
dismissed. The bail bond of Gangappa Ningappa Ugarkhod, appellant in
Criminal Appeal No. 683 of 2005, is cancelled and he is order to surrender
9Page 10
within 4 weeks, failing which the trial court is directed to take coercive steps
to take him in custody and to make him serve out the remaining sentence. 
.…..………………………..J.
(Aftab Alam)
.…..………………………..J.
(R.M. Lodha)
New Delhi;
April 16, 2013
10

Section 11 of the Right to Information Act. = “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……”; the Division Bench dismissed the appeal against the order of the learned Single Judge dated 8th December, 2011, wherein the Single Judge held that “the information sought by the appellant herein is the third party information wherein third party may plead a privacy defence and the proper question would be as to whether divulging of such an information is in the public interest or not.” Thus, the matter has been remitted back to Chief Information Commissioner to consider the issue after following the procedure under Section 11 of the Right to Information Act. = whether the information sought for qualifies to be “personal information” as defined in clause (j) of Section 8(1) of the RTI Act.= “11. The petitioner herein sought for copies of all memos, show­cause notices and censure/punishment awarded to the third respondent from his employer and also details viz. movable and immovable properties and also the details of his investments, lending and borrowing from banks and other financial institutions. Further, he has also sought for the details of gifts stated to have been accepted by the third respondent, his family members and friends and relatives at the marriage of his son. The information mostly sought for finds a place in the income tax returns of the third respondent. The question that has come up for consideration is: whether the abovementioned information sought for qualifies to be “personal information” as defined in clause (j) of Section 8(1) of the RTI Act. 12. We are in agreement with the CIC and the courts below that the details called for by the petitioner i.e. copies of all memos issued to the third respondent, show­cause notices and orders of censure/punishment, etc. are qualified to be personal information as defined in clause (j) of Section 8(1) of the RTI Act. The performance of an employee/officer in an organisation is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression “personal information”, the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer or the appellate authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right. 13. The details disclosed by a person in his income tax returns are “personal information” which stand exempted from disclosure under clause (j) of Section 8(1) of the RTI Act, unless involves a larger public interest and the Central Public Information Officer or the State Public Information Officer or the appellate authority is satisfied that the larger public interest justifies the disclosure of such information. 14. The petitioner in the instant case has not made a bona fide public interest in seeking information, the disclosure of such information would cause unwarranted invasion of privacy of the individual under Section 8(1)(j) of the RTI Act. 15. We are, therefore, of the view that the petitioner has not succeeded in establishing that the information sought for is for the larger public interest. That being the fact, we are not inclined to entertain this special leave petition. Hence, the same is dismissed.”

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.                     OF 2013
(arising out of SLP(C)No.22609 of 2012)
R.K. JAIN …. APPELLANT
VERSUS
UNION OF INDIA & ANR. `  ….RESPONDENTS
J UD G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
Leave granted.
2. In this appeal, the appellant challenges the final
judgment and order dated 20th April, 2012 passed by the
Delhi High Court in L.P.A. No. 22/2012.   In the said
order, the Division Bench dismissed the appeal against
the   order   of   the   learned   Single   Judge   dated   8th
December, 2011, wherein the Single Judge held that “the
information sought by the appellant herein is the third
party   information   wherein   third   party   may   plead   a
privacy defence and the proper question would be as to
whether   divulging   of   such   an   information   is     in   the
public   interest   or   not.”   Thus,   the   matter   has   been
remitted   back   to   Chief   Information   Commissioner   to
1Page 2
consider the issue after following the procedure under
Section 11 of the Right to Information Act. 
3. The factual matrix of the case is as follows:
The   appellant   filed   an   application   to   Central
Public Information Officer (hereinafter referred to as
the ‘CPIO’) under Section 6 of the Right to Information
Act, 2005 (hereinafter referred to as the ‘RTI Act’) on
7
th October, 2009 seeking the copies of all note sheets
and  correspondence   pages   of  file   relating   to   one   Ms.
Jyoti Balasundram, Member/CESTAT. The Under Secretary,
who   is   the   CPIO   denied   the   information   by   impugned
letter dated 15th  October, 2009 on the ground that the
information sought  attracts Clause 8(1)(j) of the RTI
Act,  which reads as follows:­
“R­20011­68/2009 – ADIC – CESTAT
Government of India
Ministry of Finance
Department of Revenue
New Delhi, the 15.10.09
To
Shri R.K. Jain
1512­B, Bhishm Pitamah Marg,
Wazir Nagar,
New Delhi – 110003
Subject: Application under RTI Act.
Sir,
Your RTI application No.RTI/09/2406 dated
7.10.2009   seeks   information   from   File   No.27­
2Page 3
3/2002 Ad­1­C.   The file contains analysis of
Annual   Confidential   Report   of   Smt.   Jyoti
Balasundaram   only  which  attracts   clause  8  (1)
(j)   of   RTI   Act.   Therefore   the   information
sought is denied.
Yours faithfully,
(Victor James)
Under Secretary to the Govt. of India”
4. On an appeal under Section 19 of the RTI Act, the
Director (Headquarters) and Appellate Authority by its
order   dated   18th  December,   2009   disallowed   the   same
citing same ground as cited by the CPIO;   the relevant
portion of which reads as follows:
“2. I   have   gone   through   the   RTI   application
dated   07.10.2009,   wherein   the   Appellant   had
requested the following information;
(A)Copies   of   all   note   sheets   and
correspondence   pages   of   File   No.
27/3/2002 – Ad. IC relating to Ms. Jyoti
Balasundaram.
(B)Inspection   of   all   records,   documents,
files   and   note   sheets   of   File
No.27/3/2002 – Ad. IC.
(C)Copies   of  records   pointed  out   during   /
after inspection.
3.  I   have   gone   through   the   reply   dated
15.10.2009   of   the   Under   Secretary,   Ad.   IC­
CESTAT given to the Appellant stating that as
the   file   contained   analysis   of   the   Annual
Confidential Report of Ms. Jyoti Balasundaram,
furnishing   of   information   is   exempted   under
Section 9 (1) (j) of the R.T.I. Act.
5. The provision of Section 8 (1) (j) of the
RTI Act, 2005 under which the information has
been   denied   by   the   CPIO   is   reproduced
hereunder:
3Page 4
“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……”
6. File No.27/3/2002­ Ad.1C deals with follow­
up action on the ACR for the year 2000­2001
in   respect   of   Ms.   Jyoti   Balasundaram,
Member   (Judicial),   CEGAT”   (now   CESTAT).
The   matter   discussed   therein   is   personal
and I am not inclined to accept the view of
the   Appellant   the   since   Ms.   Jyoti
Balasundaram is holding the post of Member
(Judicial),  CESTAT,  larger   public   interest
is   involved,   which   therefore,   ousts   the
exemption provided under Section 8 (1) (j).
Moreover,   Ms.   Jyoti   Balasundaram   is   still
serving in the CESTAT and the ACR for the
year   2000­2001   is   still   live   and   relevant
insofar   as   her   service   is   concerned.
Therefore,  it may not be proper to rush up
to the conclusion  that the matter is over
and   therefore,   the   information   could   have
been given by the CPIO under Section 8(1)
(i).       The  file   contains   only  2  pages  of
the   notes   and   5   pages   of   the
correspondence,   in   which   the   ACR   of   the
officer   and   the   matter   connected   thereto
have   been   discussed,   which   is   exempt   from
disclosure   under   the   aforesaid   Section.
The   file   contains   no   other   information,
which can be segregated and provided to the
Appellant.
7. In   view   of   the   above,   the   appeal   is
disallowed.”
5. Thereafter,   the   appellant   preferred   a   second
appeal before the Central Information Commission under
Section 19 (3) of the RTI Act which was also rejected
on 22nd April, 2010 with the following observations:­
4Page 5
“4. Appellant’s   plea   is   that   since   the
matter   dealt   in   the   above­mentioned   file
related   to   the   integrity   of   a   public
servant,   the   disclosure   of   the   requested
information should be authorized in public
interest.
5. It   is   not   in   doubt   that   the   file
referred   to   by   the   appellant   related
to the Annual Confidential Record of a
third­party,   Ms.   Jyoti   Balasundaram
and was specific to substantiation by
the Reporting Officer of the comments
made   in   her   ACRs   about   the   third   –
party’s   integrity.     Therefore,
appellant’s   plea   that   the   matter   was
about   a   public   servant’s   integrity
per­se is not valid.  The ACR examines
all aspects of the performance and the
personality   of   a   public   servant   –
integrity   being   one   of   them.     An
examination of the aspect of integrity
as   part   of   the   CR   cannot,   therefore,
be equated with the vigilance enquiry
against   a   public   servant.     Appellant
was in error in equating the two.
6. It has been the consistent position of
this   Commission   that   ACR   grades   can
and should be disclosed to the person
to   whom   the   ACRs   related   and   not   to
the   third   –   parties   except   under
exceptional   circumstances.
Commission’s   decision   in   P.K.   Sarvin
Vs.   Directorate   General   of   Works
(CPWD);   Appeal   No.
CIC/WB/A/2007/00422; Date of Decision;
19.02.2009   followed   a   Supreme   Court
order   in   Dev   Dutt   Vs.   UOI   (Civil
Appeal No. 7631/2002).
7. An examination on file of the comments
made   by   the   reporting   and   the
reviewing   officers   in   the   ACRs   of   a
public   servant,   stands   on   the   same
footing   as   the   ACRs   itself.     It
cannot, therefore, be authorized to be
disclosed to a third­party.   In fact,
even   disclosure   of   such   files   to   the
5Page 6
public   servant   to   whom   the   ACRs   may
relate is itself open to debate.
8. In   view  of   the   above,   I  am   not   in   a
position   to   authorize   disclosure   of
the information.”
6. On   being   aggrieved   by   the   above   order,   the
appellant filed a writ petition bearing W.P(C) No. 6756
of 2010 before the Delhi High Court which was rejected
by   the   learned   Single   Judge   vide   judgment   dated   8th
December,   2011   relying   on   a   judgment   of   Delhi   High
Court   in    Arvind   Kejriwal   vs.   Central   Public
Information   Officer  reported   in  AIR   2010   Delhi   216.
The learned Single Judge while observing that except in
cases   involving   overriding   public   interest,   the   ACR
record of an officer cannot be disclosed to any person
other   than   the   officer   himself/herself,   remanded   the
matter to the Central Information Commission (CIC for
short) for considering the issue whether, in the larger
public   interest,   the   information   sought   by   the
appellant could be disclosed.  It was observed that if
the   CIC   comes   to   a   conclusion   that   larger   public
interest   justifies   the   disclosure   of   the   information
sought   by   the   appellant,   the   CIC   would   follow   the
procedure prescribed under Section 11 of Act.
7. On an appeal to the above order,  by the impugned
judgment  dated  20th  April,  2012  the  Division  Bench  of
6Page 7
Delhi   High   Court   in   LPA   No.22   of   2012   dismissed   the
same. The Division Bench held that the judgment of the
Delhi   High   Court   Coordinate   Bench   in  Arvind   Kejriwal
case (supra)  binds the Court on all fours to the said
case also.  
The Division Bench further held that the procedure
under   Section   11   (1)   is   mandatory   and   has   to   be
followed   which   includes   giving   of   notice   to   the
concerned officer whose ACR was sought for.   If that
officer, pleads private defence such defence has to be
examined   while   deciding   the   issue   as   to   whether   the
private defence is to prevail or there is an element of
overriding   public   interest   which   would   outweigh   the
private defence.
8. Mr.   Prashant   Bhushan,   learned   counsel   for   the
appellant   submitted   that   the   appellant   wanted
information in a separate file other than the ACR file,
namely, the “follow up action” which was taken by the
Ministry   of   Finance   about   the     remarks   against
‘integrity’   in   the   ACR   of   the   Member.     According   to
him, it was different from asking the copy of the ACR
itself.  However, we find that the learned Single Judge
at the time of hearing ordered for production of the
original   records   and   after   perusing  the  same   came   to
7Page 8
the conclusion that the information sought for was not
different   or   distinguished   from   ACR.     The   learned
Single   Judge   held   that   the   said   file   contains
correspondence in relation to the remarks recorded by
the President of the CESTAT in relation to Ms. Jyoti
Balasundaram,   a   Member   and   also   contains   the   reasons
why   the   said   remarks   have   eventually   been   dropped.
Therefore, recordings made in the said file constitute
an integral part of the ACR record of the officer in
question.
Mr.   Bhushan   then   submitted   that   ACR   of   a   public
servant has a relationship with public activity as he
discharges public duties and, therefore, the matter is
of a public interest;  asking for such information does
not amount to any unwarranted invasion in the privacy
of public servant.  Referring to this Court’s decision
in the case of State of U.P. vs. Raj Narain, AIR 1975
SC 865, it was submitted that when such information can
be supplied to the Parliament, the information relating
to the ACR cannot be treated as personal document or
private document.
9. It   was   also   contended   that   with   respect   to   this
issue there are conflicting decisions of Division Bench
of     Kerala   High   Court   in  Centre   for   Earth   Sciences
8Page 9
Studies vs. Anson Sebastian  reported in  2010 ( 2) KLT
233  and   the   Division   Bench   of   Delhi   High   Court   in
Arvind Kejriwal vs. Central Public Information Officer
reported in AIR 2010 Delhi 216.
10. Shri A. S. Chandiok, learned Additional Solicitor
General   appearing   for   the   respondents,   in   reply
contended that the information relating to ACR relates
to the personal information and may cause unwarranted
invasion   of   privacy   of   the   individual,   therefore,
according   to   him   the   information   sought   for   by   the
appellant   relating   to   analysis   of   ACR   of   Ms.   Jyoti
Balasundaram is exempted under Section 8(1)(j) of the
RTI Act and hence the same cannot be furnished to the
appellant.   He   relied   upon   decision   of   this   Court   in
Girish   Ramchandra   Deshpande   vs.   Central   Information
Commissioner and others, reported in (2013) 1 SCC 212.
11. We have heard the learned counsel for the parties,
perused the records, the judgements as referred above
and the relevant provisions of the Right to Information
Act, 2005.  
12. Section 8 deals with exemption from disclosure of
information.   Under clause (j) of Section 8(1), there
shall be no obligation to give any citizen information
which relates to personal information the disclosure of
9Page 10
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   is   satisfied   that
the larger public interest justifies the disclosure of
such information. The said clause reads as follows:­
“Section   8   ­   Exemption   from   disclosure   of
information.­        
(1)  Notwithstanding   anything
contained   in   this   Act,   there   shall   be   no
obligation to give any citizen,­­
xxx xxx xxx
xxx xxx xxx
(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.”
13. On   the   other   hand   Section   11   deals   with     third
party   information   and   the   circumstances   when   such
information  can  be   disclosed   and   the   manner  in   which
it is to be disclosed, if so decided by the Competent
Authority.    Under   Section   11(1),     if   the   information
relates to or has been supplied by a third party and
10Page 11
has  been   treated   as  confidential   by  the  third   party,
and   if   the   Central   Public   Information   Officer   or   a
State   Public   Information   Officer   intends   to   disclose
any  such information or record on a request made under
the Act, in such case after written notice to the third
party   of   the   request,   the   Officer   may   disclose   the
information, if the third party agrees to such request
or   if   the   public   interest   in   disclosure  outweighs   in
importance any possible harm or injury to the interests
of   such   third   party.     Section   11(1)   is   quoted
hereunder:
“Section   11   ­   Third   party   information.­  (1)
Where a Central Public Information Officer or a
State   Public   Information   Officer,   as   the   case
may be, intends to disclose any information or
record, or part thereof on a request made under
this Act, which relates to or has been supplied
by   a   third   party   and   has   been   treated   as
confidential   by   that   third   party,   the   Central
Public   Information   Officer   or   State   Public
Information Officer, as the case may be, shall,
within   five   days   from   the   receipt   of   the
request,   give   a   written   notice   to   such   third
party  of  the request   and of the  fact  that the
Central   Public   Information   Officer   or   State
Public Information Officer, as the case may be,
intends  to   disclose  the  information  or   record,
or part thereof, and invite the third party to
make   a   submission   in   writing   or   orally,
regarding   whether   the   information   should   be
disclosed,   and   such   submission   of   the   third
party   shall   be   kept   in   view   while   taking   a
decision about disclosure of information:
Provided   that   except   in   the   case   of   trade   or
commercial secrets protected by law, disclosure
may   be   allowed   if   the   public   interest   in
disclosure outweighs in importance any possible
11Page 12
harm   or   injury   to   the   interests   of   such   third
party.”
14. In  Centre   for   Earth   Sciences   Studies   vs.   Anson
Sebastian reported in 2010(2) KLT 233 the Kerala High
Court considered the question whether the information
sought   relates   to   personal   information   of   other
employees,   the   disclosure   of   which   is   prohibited
under Section 8(1) (j) of the RTI Act.  In that case
the   Kerala   High   Court   noticed   that   the   information
sought for by the first respondent pertains to copies
of documents furnished in a domestic enquiry against
one of the employees of the appellant­organization.
Particulars   of   confidential   reports   maintained   in
respect of co­employees in the above said case (all
of   whom   were   Scientists)   were   sought   from   the
appellant­organisation.  The Division Bench of Kerala
High Court after noticing the relevant provisions of
RTI Act held that documents produced in a domestic
enquiry   cannot   be   treated   as   documents   relating   to
personal information of a person, disclosure of which
will   cause   unwarranted   invasion   of   privacy   of   such
person. The Court further held that the confidential
reports of the employees maintained by the employer
cannot be treated as records pertaining to personal
12Page 13
information   of   an   employee   and   publication   of   the
same is not prohibited under Section 8(1) (j) of the
RTI Act.
15. The   Delhi   High   Court   in  Arvind   Kejriwal   vs.
Central   Public   Information   Officer  reported   in  AIR
2010 Delhi 216 considered Section 11 of the RTI Act.
The Court  held that once the information seeker is
provided information relating to a third party, it is
no   longer   in   the   private   domain.   Such   information
seeker can then disclose in turn such information to
the   whole   World.   Therefore,   for   providing   the
information   the   procedure   outlined   under   Section
11(1)  cannot be dispensed  with.   The following  was
the   observation   made   by   the   Delhi   High   Court   in
Arvind Kejriwal (supra):
 “22. Turning to the case on hand, the documents
of which copies are sought are in the personal
files   of   officers   working   at   the   levels   of
Deputy   Secretary,   Joint   Secretary,   Director,
Additional   Secretary   and   Secretary   in   the
Government of India. Appointments to these posts
are   made   on   a   comparative   assessment   of   the
relative   merits   of   various   officers   by   a
departmental promotion committee or a selection
committee, as the case may be. The evaluation of
the   past   performance   of   these   officers   is
contained   in   the   ACRs.   On   the   basis   of   the
comparative assessment a grading is given. Such
information cannot but be viewed as personal to
such officers. Vis­à­vis a person who is not an
employee   of   the   Government   of   India   and   is
seeking   such   information   as   a   member   of   the
public,   such   information   has   to   be   viewed   as
13Page 14
Constituting 'third party information'. This can
be   contrasted   with   a   situation   where   a
government   employee   is   seeking   information
concerning   his   own   grading,   ACR   etc.   That
obviously   does   not   involve   'third   party'
information.
23. What is, however, important to note is that
it   is   not   as   if   such   information   is   totally
exempt   from  disclosure.  When   an  application  is
made   seeking   such   information,   notice   would  be
issued   by   the   CIC   or   the   CPIOs   or   the   State
Commission, as the case may be, to such 'third
party'   and   after   hearing   such   third   party,   a
decision will be taken by the CIC or the CPIOs
or the State Commission whether or not to order
disclosure of such information. The third party
may plead a 'privacy' defence. But such defence
may,   for   good   reasons,   be   overruled.   In   other
words, after following the procedure outlined in
Section 11(1) of the RTI Act, the CIC may still
decide   that  information  should   be   disclosed  in
public   interest   overruling   any   objection   that
the   third   party   may   have   to   the   disclosure   of
such information.
24.   Given   the   above   procedure,   it   is   not
possible   to   agree   with   the   submission   of   Mr.
Bhushan that the word 'or' occurring in Section
11(1)   in   the   phrase  information  "which   relates
to or has been supplied by a third party" should
be read as 'and'. Clearly, information relating
to   a   third   party   would   also   be   third   party
information within the meaning of Section 11(1)
of   the   RTI   Act.   Information   provided   by   such
third party would of course also be third party
information.   These   two   distinct   categories   of
third   party   information   have   been   recognized
under   Section   11(1)   of   the   Act.   It   is   not
possible for this Court in the circumstances to
read the word 'or' as 'and'. The mere fact that
inspection of such files was permitted, without
following the mandatory procedure under Section
11(1)     does   not   mean   that,   at   the   stage   of
furnishing   copies   of   the   documents   inspected,
the said procedure can be waived. In fact, the
procedure   should   have   been   followed  even   prior
to   permitting   inspection,   but   now   the   clock
cannot be put back as far as that is concerned.
14Page 15
25.  The logic  of  the Section   11(1)  RTI Act  is
plain.   Once  the  information  seeker   is   provided
information relating to a third party, it is no
longer   in   the   private   domain.   Such   information
seeker   can   then   disclose   in   turn   such
information to the whole world. There may be an
officer who may not want the whole world to know
why he or she was overlooked for promotion. The
defence   of   privacy   in   such   a   case   cannot   be
lightly   brushed   aside   saying   that   since   the
officer   is   a   public   servant   he   or   she   cannot
possibly fight shy of such disclosure. There may
be yet another situation where the officer may
have no qualms about such disclosure. And there
may be a third category where the credentials of
the officer appointed may be thought of as being
in   public   interest   to   be   disclosed.   The
importance of the post held may also be a factor
that   might   weigh   with   the   information   officer.
This   exercise   of   weighing   the   competing
interests can possibly be undertaken only after
hearing   all   interested   parties.   Therefore   the
procedure under Section 11(1)  RTI Act.
26.   This   Court,   therefore,   holds   that   the   CIC
was not justified in overruling the objection of
the UOI on the basis of Section 11(1)   of the
RTI  Act and  directing  the UOI  and the  DoPT  to
provide copies of the documents as sought by Mr.
Kejriwal.   Whatever   may   have   been   the   past
practice   when   disclosure   was   ordered   of
information  contained   in   the   files   relating  to
appointment   of   officers   and   which   information
included   their   ACRs,   grading,   vigilance
clearance etc., the mandatory procedure outlined
under   Section   11(1)   cannot   be   dispensed   with.
The short question framed by this Court in the
first paragraph of this judgment was answered in
the affirmative by the CIC. This Court reverses
the CIC's impugned order and answers it in the
negative.
27. The impugned order dated 12th June 2008 of
the CIC and the consequential order dated 19th
November 2008 of the CIC are hereby set aside.
The appeals by Mr. Kejriwal will be restored to
the   file   of   the   CIC   for   compliance   with   the
procedure   outlined   under   Section   11(1)   RTI   Act
limited   to   the   information   Mr.   Kejriwal   now
seeks.”
15Page 16
16. Recently   similar   issue   fell   for   consideration
before   this   Court   in  Girish   Ramchandra   Deshpande   v.
Central Information Commissioner and others reported in
(2013)  1 SCC 212.   That  was  a case in which  Central
Information   Commissioner   denied   the   information
pertaining to the service career of the third party to
the said case and also denied the details relating to
assets, liabilities, moveable and immovable properties
of the third party on the ground that the information
sought for was qualified to be personal information as
defined in clause (j) of Section 8(1) of the RTI Act.
In   that  case   this   Court  also   considered  the  question
whether   the   orders   of   censure/punishment,   etc.   are
personal   information   and   the   performance   of   an
employee/officer in an organization, commonly known as
Annual   Confidential   Report   can   be   disclosed   or   not.
This Court after hearing the parties and noticing the
provisions of RTI Act held:
“11.  The petitioner herein sought for copies of
all   memos,   show­cause   notices   and
censure/punishment   awarded   to   the   third
respondent   from   his   employer   and   also   details
viz.   movable   and   immovable   properties   and   also
the   details   of   his   investments,   lending   and
borrowing   from   banks   and   other   financial
institutions.   Further,   he   has   also   sought   for
the   details   of   gifts   stated   to   have   been
accepted   by   the   third   respondent,   his   family
members   and   friends   and   relatives   at   the
marriage   of   his   son.   The   information   mostly
sought   for   finds   a   place   in   the   income   tax
returns   of   the   third   respondent.   The   question
16Page 17
that has come up for consideration is:
whether
the   abovementioned   information   sought   for
qualifies   to   be   “personal   information”   as
defined in clause (j) of Section 8(1) of the RTI
Act.
12.  We   are   in   agreement   with   the   CIC   and   the
courts below that the details called for by the
petitioner   i.e.   copies   of   all   memos   issued   to
the   third   respondent,   show­cause   notices   and
orders of censure/punishment, etc. are qualified
to be personal information as defined in clause
(j)   of   Section   8(1)   of   the   RTI   Act.   The
performance   of   an   employee/officer   in   an
organisation   is  primarily   a  matter   between   the
employee   and   the   employer   and   normally   those
aspects are governed by the service rules which
fall   under   the   expression   “personal
information”,   the   disclosure   of   which   has   no
relationship   to   any   public   activity   or   public
interest. On the other hand, the disclosure of
which   would   cause   unwarranted   invasion   of
privacy   of   that   individual.   Of   course,   in   a
given   case,   if   the   Central   Public   Information
Officer or the State Public Information Officer
or the appellate authority is satisfied that the
larger public interest justifies the disclosure
of such information, appropriate orders could be
passed   but   the   petitioner   cannot   claim   those
details as a matter of right.
13.  The   details   disclosed   by   a   person   in   his
income   tax   returns   are   “personal   information”
which   stand   exempted   from   disclosure   under
clause (j)   of   Section   8(1)   of   the   RTI   Act,
unless involves a larger public interest and the
Central Public Information Officer or the State
Public   Information   Officer   or   the   appellate
authority   is   satisfied   that   the   larger   public
interest   justifies   the   disclosure   of   such
information.
14.  The petitioner in the instant case has not
made   a   bona   fide   public   interest   in   seeking
information, the disclosure of such information
would   cause  unwarranted  invasion   of  privacy  of
the individual under Section 8(1)(j) of the RTI
Act.
15.  We   are,   therefore,   of   the   view   that   the
petitioner   has   not   succeeded   in   establishing
that   the   information   sought   for   is   for   the
larger public interest. That being the fact, we
are not inclined to entertain this special leave
petition. Hence, the same is dismissed.”
17Page 18
17. In   view   of   the   discussion   made   above   and   the
decision   in   this   Court   in  Girish   Ramchandra
Deshpande(supra),  as   the   appellant   sought   for
inspection   of   documents   relating   to   the   ACR   of   the
Member,   CESTAT,   inter   alia,   relating   to     adverse
entries   in   the   ACR   and   the   ‘follow   up   action’   taken
therein on the question of integrity, we find no reason
to interfere with the impugned judgment passed by the
Division Bench whereby the order passed by the learned
Single Judge was affirmed.   In absence of any merit,
the appeal is dismissed but there shall be no order as
to costs.
………..………………………………………..J.
 (G.S. SINGHVI)
………………………………………………….J.
           (SUDHANSU JYOTI
MUKHOPADHAYA)
NEW DELHI,
APRIL 16, 2013.
18

the demand of entertainment tax raised by the Government of Madhya Pradesh under the Madhya Pradesh Entertainment Duty and Advertisements Tax Act, 1936 (hereinafter referred to as “the 1936 Act”) on DTH (direct to home) broadcast provided by the appellants to their respective customers on payment of subscriptions.= the notification dated May 5, 2008, it is elementary that a notification issued in exercise of powers under the Act cannot amend the Act. Moreover, the notification merely prescribes the rate of entertainment duty at 20 percent in respect of every payment for admission to an entertainment other than cinema, video cassette recorder and cable service. The notification cannot enlarge either the charging section or amend the provision of collection under section 4 of the Act read with the 1942 Rules. It is, therefore, clear that the notification in no way improves the case of the State. If no duty could be levied on DTH operation under the 1936 Act prior to the issuance of the notification dated May 5, 2008 as fairly stated by Mr. Dave, we fail to see how duty can be levied under the 1936 Act after the issuance of the notification. 42. We have held that the 1936 Act does not cover DTH operations on an interpretation of the provisions of 1936 Act itself. We, therefore, see no need to refer to the cases relied upon by the appellants relating to demand of duty on DTH operations under the Uttar Pradesh Entertainments and Betting Tax Act, 1979 and under the Bihar Entertainment Tax Act.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3882 OF 2013
(ARISING OUT OF SLP (CIVIL) NO.27595 OF 2010)
M/s Tata Sky Ltd. … Appellant
Versus
State of M.P. and others … Respondents
WITH
CIVIL APPEAL NO.3888 OF 2013
(ARISING OUT OF SLP (CIVIL) NO.27655 OF 2010)
WITH
CIVIL APPEAL NO.3889 OF 2013
(ARISING OUT OF SLP (CIVIL) NO.30034 OF 2010)
WITH
CIVIL APPEAL NO. 3890 OF 2013
(ARISING OUT OF SLP (CIVIL) NO.32475 OF 2010)
WITH
CIVIL APPEAL NO.3891 OF 2013
(ARISING OUT OF SLP (CIVIL) NO.2528 OF 2011)
AND
CIVIL APPEAL NO. 3892 OF 2013
(ARISING OUT OF SLP (CIVIL) NO.2752 OF 2011)
J U D G M E N T
Aftab Alam, J.
1. Leave granted in all the special leave petitions.
2. All these appeals relate to the demand of entertainment tax raised by the
Page 2
Government of Madhya Pradesh under the Madhya Pradesh Entertainment Duty and
Advertisements Tax Act, 1936 (hereinafter referred to as “the 1936 Act”) on DTH
(direct to home) broadcast provided by the appellants to their respective customers on
payment of subscriptions. The appellants in all the appeals challenged the demand by
the State Government by filing writ petitions before the Madhya Pradesh High Court.
The High Court dismissed the writ petitions, upholding the demand by the State
Government by the judgment and order dated August 20, 2010. That judgment was
rendered in a batch of three writ petitions, taking Writ Petition No. 10148 of 2009, filed
on behalf of Tata Sky Limited (appellant in the appeal arising from SLP (C) No.2752 of
2011) as the lead case. The rest of the writ petitions were dismissed following the
judgment dated August 20, 2010.
3. For the sake of convenience, we too have taken the facts from civil appeal arising
out of special leave petition (civil) No.27595 of 2010.
4. The appellant operates under a licence from the Government of India under
section 4 of the Indian Telegraph Act, 1885 and the Indian Telegraphy Act, 1933. It is,
however, the case of the appellant that DTH broadcast is a “service” and it is chargeable
to service tax. As a matter of fact, one of the several grounds on which the demand of
entertainment tax by the State Government on DTH broadcasting is challenged by the
appellant is that DTH broadcasting is one of the notified services under the Finance Act,
1994 and is chargeable to service tax by the Central Government. In that regard, it is
stated on behalf of the appellant, that in 1991 the Government of India appointed a Tax
Reform Committee under the Chairmanship of Dr. Chelliah. The recommendations
made by the Tax Reform Committee were accepted and the service tax was introducedPage 3
in the budget for the year 1994-1995 through the Finance Act, 1994 under the residuary
entry 97 of List 1 of the 7th Schedule of the Constitution of India. Under the Act, service
tax is levied on the notified services provided or to be provided.
5. For the purpose of levy of service tax on broadcasting, the expression
“broadcasting” has been defined specifically under section 65(15) of the Finance Act.
The broadcasting services were brought within the purview of the service tax under
section 65(105)(zk) of the Finance Act, 1994 as amended with effect from July 16,
2011. Later on, DTH service was brought within the purview of the service tax with
effect from June 16, 2006.
6. Under section 67 of the Finance Act, the value of taxable service is the gross
amount charged by the service provider for provision of service.
7. On March 24, 2006, the appellant got a licence from the Government of India
under section 4 of the Indian Telegraph Act, 1885 and the Indian Telegraphy Act, 1933
to establish, maintain and operate DTH platform for a period of 10 years on the terms
and conditions stipulated in the licence agreement. The appellant paid Rs.10 crores as
licence fee and furnished a bank guarantee for the sum of Rs.40 crores that is to remain
valid for the entire duration of the licence. In terms of the licence the appellant is further
required to pay an annual fee equivalent to 10 percent of its gross revenue as reflected in
the audited accounts of the company for every financial year within one month from the
end of the financial year. The appellant is also required to pay, in addition to licence
fee, royalty for spectrum use as prescribed by the Wireless Planning and Coordination
Authority (WPC) under the Department of Telecommunications.
8. The licence granted by the Central Government is for the whole of India and thePage 4
appellant is not obliged to take any permission or any other licence from any other
authority for making DTH broadcast.
9. In August 2006, the appellant launched its operations all over India, including the
State of Madhya Pradesh. The appellant is having a single broadcasting centre at
Chhattarpur, Delhi. This centre downlinks the signals from satellite and then uplinks
those signals to the designated transponders for their transmission in Ku band. These
signals are received by the dish antenna installed at the subscribers’ premises. The TV
signals transmitted from the broadcasting centre at Chhattarpur, Delhi, are in encrypted
format and those are decrypted/decoded by the set top boxes and the viewing card inside
the set top box supplied by the appellant to its subscribers. The subscribers are required
to pay certain charges for viewing DTH broadcasts by the appellant on their TV sets.
10. The appellant does not use any infrastructure from the State for its DTH
broadcasts.
11. On May 5, 2008, the State Government in exercise of powers conferred under
section 3(1) of the 1936 Act, issued a gazette notification fixing 20 percent
entertainment duty in respect of every payment made for admission to an entertainment
other than cinemas, videos cassette recorders and cable service. As the aforesaid
notification forms the basis of the demand raised by the State Government it is useful to
reproduce it here in full:-
“No. (63) B-5-9-2006-2-V- In exercise of the powers conferred by sub section
(1) of Section 3 of the Madhya Pradesh Entertainment Duty and
Advertisements Tax Act 1936 (No 30 of 1936) the State Government hereby
prescribed the rate of Entertainment Duty at 20 percent in respect of every
payment for admission to an Entertainment other than Cinema, Video Cassette
Recorder and Cable service.
This notification shall come into force with effect from the date of
publication. Page 5
By order and in the name of the Governor of Madhya Pradesh.”
12. Following the notification dated May 5, 2008, a demand notice dated June 10,
2009 was issued by the Excise Commissioner Madhya Pradesh, Gwalior, to the
appellant. The contents of the notice, insofar as relevant for the present, are as under:
“S.No.7-Ent./2009-10/173 Gwalior Date 10.06.2009
To,
Tata Sky,
…
…
Sub: Levy of Entertainment Duty on Direct to Home Entertainment Service
You are providing entertainment in the State of Madhya Pradesh by Direct to
Home (DTH) to registered consumers on monthly payment basis. Whereas:
(1.) Under section 3(1) of the Madhya Pradesh Entertainment Duty and
advertisements Tax Act, 1936 except cinema hall, videos and cable in all
entertainments including entertainment provided through registered
consumers through DTH on monthly subscription basis is
included. In the aforesaid payment by the consumers, entertainment duty
@ 20% is liable to be paid in advance in the treasury of the Government.
…”
13. The appellant was directed to provide the information as asked for in the notice
failing which, the notice declared, an ex parte assessment would be made of the
entertainment tax payable by it.
14. The appellant replied to the notice by its letter of July 22, 2009 stating that under
the provisions of the 1936 Act, there is no specific entry with respect to DTH
broadcasting and in absence of such an entry, the provisions of the Act are not
applicable to DTH broadcasting and, therefore, the notice was illegal and withoutPage 6
jurisdiction. The appellant also referred to a decision of the Uttarakhand High Court in a
case relating to a similar demand raised by the Uttarakhand Government and the order
of this Court in the special leave petition filed by the Uttrakhand Government against
the judgment of the High Court.
15. On August 1, 2009, the State of Madhya Pradesh passed the Madhya Pradesh
Entertainment Duty and Advertisements Tax (Amendment) Act, 2009. By the
Amendment Act, the failure to produce accounts and documents as required by the
Excise Commissioner or any officer authorized by the State Government was made a
penal offence. The Amendment Act, however, did not introduce any provision in the
Parent Act with respect to levy of entertainment duty on DTH broadcasting.
16. On August 18, 2009, the Excise Commissioner Madhya Pradesh wrote to the
Deputy Commissioner Excise, Flying Squad, Gwalior Division, Gwalior, telling him
that entertainment duty at the rate of 20 percent was payable on subscription amounts
received by the DTH entertainment service provider and directing to ensure the
realization of entertainment duty from DTH entertainment service providers. The
direction of the Excise Commissioner was followed by a number of notices given to the
appellant and on October 1, 2009, the Vice President (Operation) and Area Operation
(Manager) of the appellant company were arrested and later released on bail for noncompliance with the provisions of section 5(E) of the 1936 Act.
17. On October 3, 2009, the appellant filed a writ petition, being Writ Petition
No.10148 of 2009, challenging the demand and collection of entertainment duty at the
rate of 20 percent under section 3(1) of the 1936 Act. The writ petition was eventually
dismissed by the High Court by its judgment and order dated August 20, 2010 and thePage 7
matter is now brought to this Court.
18. Before proceeding further, it needs to be stated that the controversy in all the
appeals relates to the demand and realization of entertainment tax under the 1936 Act,
which means for the period between the commencement of operation by the appellant in
the year 2006 and March 31, 2011, i.e., the day prior to the coming into force of the new
Act, called the Madhya Pradesh Vilasita, Manoranjan, Amod Evam Vigyapan Kar
Adiniyam, 2011. Further, in course of hearing of the appeals Mr. Dave learned counsel
appearing for the State of Madhya Pradesh submitted that he proposed to defend the
demand and realization of the impugned tax only for the period between May 5, 2008,
the date of the notification issued under section 3(1) of the 1936 Act and the coming into
force of the new Act on April 1, 2011. It is, therefore, made clear that this judgment
deals with the question of levy of entertainment tax on DTH broadcast under the 1936
Act for the period between the issuance of the notification (May 5, 2008) and the
coming into force of the new Act (April 1, 2011). The judgment is not concerned with
the legal position arising after the new Act came into force.
19. We now propose to examine whether on the basis of the provisions of the 1936
Act, it is permissible or possible for the State of Madhya Pradesh to levy on what in the
lexicon of broadcasting is called direct-to-home or in short DTH. Here it needs to be
clearly understood that the issue in this case is not whether direct to home broadcast is
“entertainment” in the broader sense. Entry 62 of List 2 of Schedule 7 to the
constitution may indeed be wide enough to include DTH as yet another form of
entertainment but that is not the issue rising for consideration. The issue under
consideration is whether the provisions of the 1936 Act have the necessary expanse andPage 8
flexibility to include DTH as an “entertainment” chargeable to tax and whether the
notification dated May 5, 2008 in any manner extended the scope of chargeability under
the 1936 Act.
20. The preamble to the 1936 Act reads as under:-
“An Act to impose a duty in respect of admission to entertainments and a
tax in respect of certain forms of advertisement exhibited at such
entertainments in Madhya Pradesh.”
21. Section 2 of the 1936 Act contains the definition clauses and clause (a) defines the
expression “admission to an entertainment”:
“2(a) “admission to an entertainment” includes admission to any place in
which the entertainment is held;”
22. Clause (aaaa) was inserted in the Act with effect from May 1, 1999 to define
‘Cable Operator”, “Cable Service”, “Cable Television Network” and “Subscriber”.
“2(aaaa) “Cable Operator”, “Cable Service”, “Cable Television Network”
and “Subscriber” shall have the same meaning as assigned to them in the
Cable Television Network (Regulation) Act, 1995 (No.7 of 1995)”
23. Clause (b) defines “entertainment”:
“2(b) “Entertainment” includes any exhibition, performance, amusement,
game or sport to which persons are admitted for payment;”
24. Clause (c) defines “entertainment duty”:
“2(c) “entertainments duty” means a duty levied under section 3;”
25. Clause (d) defines the expression “Payment for admission” as under:
“2(d) “Payment for admission” includes –
(i) any payment for seats or other accommodation in any form in a
place of entertainment;
(ii) any payment for a programme or synopsis of an entertainment;
(iii) any payment made for the loan or use of any instrument orPage 9
contrivance which enables a person to get a normal or better
view or hearing or enjoyment of the entertainment, which
without the aid of such instrument or contrivance such person
would not get;
(iv) any payment made by a person by way of contribution or
subscription or installation and connection charges or any
other charges, by whatever name called, for providing
access to any entertainment, whether for a specified period
or on a continuous basis;
(v) any payment, by whatever name called for any purpose
whatever, connected with an entertainment, which a person is,
required to make in any form as a condition of attending, or
continuing to attend the entertainment, either in addition to the
payment, if any, for admission to the entertainment or without
any such payment for admission;
(vi) any payment, made by a person, who having been admitted to
one part of a place of entertainment is subsequently admitted to
another part thereof, for admission to which a payment
involving tax or more tax is required;
Explanation - I. – Any subscription raised or donation collected in
connection with an entertainment in any form shall be deemed to be payment
for admission;
[Explanation - II. – Where entertainment is provided as part of any service by
any person, whether forming an integral part of such service or otherwise the
charges received by such person for providing the service shall be deemed to
include charges for providing entertainment or access to entertainment also];
26. Clause (f) defines “proprietor”:
“2(f) “proprietor” in relation to any entertainment, includes any person
responsible for or for the time being in-charge of the management thereof;”
27. “Video Cassette Recorder” and “Video Cassette Player” are defined in clauses
(g) and (h) of section 2.
28. The charging provision is contained in Section 3 of the 1936 Act which, insofar as
relevant for the present, is extracted hereunder:
“Entertainment Duty payable by proprietor of an entertainment - (1) Every
proprietor of an entertainment other than proprietor of an entertainment by
Video Cassette Recorder (hereinafter referred to as V.C.R.) or Video Cassette
Player (hereinafter referred to as V.C.P.) or a Cable Operator, shall in respectPage 10
of every payment for admission to the entertainment pay to the State
Government a duty at the rate as prescribed by the State Government not
exceeding seventy five per centum thereof:
Provided …
Provided further …
Provided also ….
Explanation …
(2) xxx
(3) Where the payment for admission to an entertainment is made by
means of a lump sum paid as a subscription or contribution to any person, or
for a season ticket or for the right of admission to a series of entertainments or
to any entertainment during a certain period of time, or for any privilege,
right, facility or thing combined with the right of admission without further
payment or at a reduced charge, the entertainments duty shall be paid on the
amount of such lump sum:
Provided that where the State Government is of opinion that the payment of a
lump sum represents payment for other privileges, rights, or purposes besides
the admission to an entertainment, or covers admission to the entertainment
during any period for which the duty has not been in operation, the duty shall
be charged on such an amount as appears to the State Government to represent
the right of admission to entertainment in respect of which the entertainment
duty is payable.”
(4) xxx
(i) xxx
(ii) xxx”
29. Section 3-A deals with entertainment duty payable by proprietor of V.C.R. or
V.C.P. and this provision was inserted in the Act with effect from May 1, 1999.
30. Section 3-B was inserted in the 1936 Act with effect from April 1, 2001. Subsection (1) of section 3-B deals with entertainment duty payable by cable operator and it
makes a cable operator, providing access to entertainments through cable service to
subscribers of such service, not being owner or occupants of rooms of hotel or lodging
house, liable to pay duty at the rate of twenty rupees per month per subscriber in urban
and cantonment areas. Sub-section (2) of section 3-B makes every proprietor of hotel or
lodging house, providing access to entertainments in the rooms of a hotel or lodgingPage 11
house through the cable service of his own or obtained through any cable operator liable
to pay a consolidated amount of duty per month determined on the basis of number of
rooms.
31. Section 3-C deals with levy of Advertisement Tax.
32. The machinery for effectuating the charge created by section 3 is provided under
section 4 of the 1936 Act which, insofar as relevant for the present, is quoted below:
“4. Method of levy – (1) Save as otherwise provided by this Act, no
person shall be admitted to any entertainment other than entertainment by
V.C.R., except with a ticket stamped with an impressed, embossed,
engraved or adhesive stamp, (not before used) issued by the State
Government, of nominal value equal to the duty payable under section 3.
(1A) Omitted.
(2) The State Government may, on the application of a proprietor of any
entertainment other than entertainment by V.C.R. in respect of which
entertainments duty is payable under section 3, allow such proprietor to pay
by one of the modes specified hereunder as it may think fit, in such manner
and subject to such conditions as may be prescribed, the amount of the duty
due, namely:-
(a) by a consolidated payment of such percentage as determined by the
State Government of the gross sum received by the proprietor on
account of payments for admission to the entertainment and on account
of the duty to be fixed by the State Government;
(b)in accordance with returns of the payments for admission to the
entertainment and on account of the duty;
(c) in accordance with the results recorded by any mechanical contrivance
which automatically registers the number of persons admitted;
(d)xxx
(e) xxx
(f) xxx
(3) xxx
(4) xxx”
33. Section 4-B imposes restriction on admission without payment or at concession
rates and provides as under:
“4-B Restriction on admission without payment or at
concession rates. – No proprietor shall admit any person to an entertainment
other than entertainment by V.C.R. without payment for admission thereto orPage 12
at concession rates unless the entertainments duty payable in respect thereof
or on the full value of the ticket for the class to which such person is
admitted has been paid.
Provided that nothing in this section shall apply in respect of
admission at concessional rates –
(i) to such class of persons; and
(ii) to such entertainment or class of entertainments;
As the State Government may, by notification, specify.”
34. Section 4-C gives the power to impose penalty and section 5 deals with penalties.
5-A deals with composition of offences and section 5-B deals with suspension or
revocation of licence for entertainment. Section 8 provides the rule making powers.
Section 9 gives the power of entry and inspection and section 9-A makes production and
inspection of accounts and documents obligatory. Section 10 deals with recovery of
arrears of entertainment duty. Section 10 provides protection to persons acting in good
faith and bars any suit or prosecution or other proceedings against officers and servant
of the Government. Section 11 deals with delegation of powers and section 12 bars
imposition of entertainment duty by any local authority.
35. On a careful examination of the 1936 Act as a whole, and more particularly on a
conjoint reading of clauses (a) [“Admission to an entertainment”], (b) [“Entertainment”]
and (d) [“Payment of admission”] along with section 3 creating the charge and section 4
providing the collection machinery, we find ourselves in agreement with the submission
made on behalf of the appellants that the provisions of 1936 Act are applicable only to
place-related entertainment. In other words, the provisions of the 1936 Act cover an
entertainment which takes place in a specified physical location to which persons are
admitted on payment of some charge as defined under clause (d) of section 2 of the 1936
Act. The legislative history and the amendments introduced in the 1936 Act also showPage 13
that it was how the scheme of the 1936 Act was viewed by the State itself. It was earlier
found that the provisions of the 1936 Act were inadequate to bring shows by video
cassette recorder or video cassette and player cable T.V. operations within the taxing net
and hence, the legislature considered it necessary to amend the 1936 Act and to insert
section 3-A and section 3-B respectively with effect from May 1, 1999 and April 1,
2001. In this regard, it is also very important to note that both in the case of shows by
video cassette recorder or video cassette and player, cable T.V. operations, the collection
machinery is in-built and provided within the respective provisions of section 3-A and
section 3-B. and in those two cases the collection of duty does not take place under
section 4 of the 1936 Act.
36. On behalf of the State the imposition of levy on DTH was sought to be justified
on the basis of sub-clause(4) of clause (d) of section 2 which reads as under:
“(iv) any payment made by a person by way of contribution or subscription
or installation and connection charges or any other charges, by whatever name
called, for providing access to any entertainment, whether for a specified
period or on a continuous basis;”
37. In our view, the submission is untenable for more reasons than one. First, section
2(d)(iv) is only the measure of tax and it does not create the charge which is created by
section 3. The question of going to the measure of the tax would arise only if it is found
that the charge of tax is attracted. Under section 3 read with section 2(d) and section
2(a), the charge or levy of tax is attracted only if an entertainment takes place in a
specified place or locations and persons are admitted to the place on payment of a
charge to the proprietor providing the entertainment. In the present case, as DTH
operation is not a place-related entertainment, it is not covered by the charging section 3Page 14
read with section 2(a) and 2(b) of the 1936 Act. Consequently, the question of going to
section 2(d)(iv) does not arise. Moreover, even if section 2(d)(iv) is to be read as an
extension of section 3 and, thus, as a part of the charge, it does not make any difference
at all because section 2(d)(iv) refers to “entertainment” which takes us back to section
2(b) and finally to section 2(a).
38. We have held that DTH is not covered by the provisions of section 3 read with
section 2(a), 2(b) and 2(d) of the 1936 Act. The issue gets further settled on reference
being made to the mechanism of collection of the charge as provided under section 4 of
the 1936 Act. Section 4(1) mandates that no person shall be admitted to any
entertainment other than entertainment by V.C.R. except with a ticket stamped with an
impressed, embossed, engraved or adhesive stamp issued by the State Government of
nominal value equal to the duty payable under section 3; sub-section (2) of section 4
provides for different modes specified thereunder for payment of the amount of duty due
on the entertainment. Neither the provision of section 4(1) nor any of the modes
provided under section 4(2) can be made applicable for collection of duty on DTH
operation. Further, it is noted above that section 8 provides rule making powers. In
exercise of the powers under that provision the Madhya Pradesh Entertainment Duty and
Advertisement Tax Rules 1942 were framed. A perusal of the Rules makes it absolutely
clear that the collection mechanism under the 1936 Act is based on revenue stamps
stuck to the tickets issued by the proprietor for entry to the specified place where
entertainment is held.
39. The machinery for collection of duty provided under the 1936 Act has no
application to DTH. It is well settled that if the collection machinery provided under the
Page 15
Act is such that it cannot be applied to an event, it follows that the event is beyond the
charge created by the taxing statute. See: Commissioner of Income Tax v. B.C.
Srinivasa Setty, (1981) 2 SCC 460, Commissioner of Income-Tax Ernakulam, Kerala v.
Official Liquidator, Palai Central Bank Ltd.. (1985) 1 SCC 45 (pages 50-51), PNB
Finance Limited v. Commissioner of Income Tax I, New Delhi (2008) 13 SCC 94
(paragraphs 21 and 24 pages 100 to 101).
40. In light of the discussions made above, we are clearly of the view that the 1936
Act cannot be extended to cover DTH operations being carried out by the appellants.
41. Coming now to the notification dated May 5, 2008,
 it is elementary that a
notification issued in exercise of powers under the Act cannot amend the Act. 
Moreover,
the notification merely prescribes the rate of entertainment duty at 20 percent in respect
of every payment for admission to an entertainment other than cinema, video cassette
recorder and cable service. 
The notification cannot enlarge either the charging section or
amend the provision of collection under section 4 of the Act read with the 1942 Rules. 
It is, therefore, clear that the notification in no way improves the case of the State.
If no
duty could be levied on DTH operation under the 1936 Act prior to the issuance of the notification dated May 5, 2008 as fairly stated by Mr. Dave, we fail to see how duty can be levied under the 1936 Act after the issuance of the notification. 
42. We have held that the 1936 Act does not cover DTH operations on an
interpretation of the provisions of 1936 Act itself. We, therefore, see no need to refer to
the cases relied upon by the appellants relating to demand of duty on DTH operations
under the Uttar Pradesh Entertainments and Betting Tax Act, 1979 and under the Bihar
Entertainment Tax Act. Page 16
43. Further, as we have held that the 1936 Act does not cover the DTH operations we
need not go to the other submissions made on behalf of the appellants inter alia
regarding the legislative competence of the statute legislature to impose tax on DTH
operation as it was a notified service chargeable to service tax under the Finance Act,
1994. 
44. In the result, the appeals are allowed but with no order as to costs.
.…..………………………..J.
(Aftab Alam)
.…..………………………..J.
(R.M. Lodha)
New Delhi;
April 16, 2013