SC Won't Say How Justice Arun Mishra Retained Official Residence for 5 Months After Retirement

The apex court has refused to reveal whether the retired judge paid the amount stipulated for overstaying, or was granted a waiver by the Central government.

New Delhi: Justice Arun Mishra, who retired from the Supreme Court on September 2 last year, continued to occupy his official residence, 13 Akbar Road, New Delhi, till January 31 this year.

The has been confirmed by the Supreme Court’s central public information officer, additional registrar Ajay Agrawal, in his reply dated February 12, to an application filed under the Right to Information Act. Agrawal, however, refused to divulge the reasons for allowing Justice Arun Mishra to overstay and the details of the amount paid by him in rent for the period of overstay.

The Supreme Court also refused to divulge details of the market rent per month for the residence used by Justice Arun Mishra post retirement.

“The reasons as sought for cannot be provided as the same are exempt under Section 8(1)(j) and Section 11(1) of the RTI Act, 2005,” Agrawal’s reply to the RTI applicant stated.

On the details of market rent payable by Justice Mishra, Agrawal replied: “Further, rest part of the information sought is not available.”

The application, filed by Cheryl D’Souza, an advocate practising in the Supreme Court, also sought a copy of the rules/regulations regarding entitlement of residence for Supreme Court judges during their tenure in office, and after their retirement. She also sought to know the time period within which a retired Supreme Court judge must vacate the official residence upon retirement. Agrawal, in his reply to these queries, drew her attention to the Supreme Court Judges (Salaries and Conditions of Services) Act, 1958.

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Justice Mishra was allotted the official residence at 13 Akbar Road, New Delhi on September 10, 2014, after he assumed office as a judge of the Supreme Court of India on July 7, 2014. In accordance with the Supreme Court Judges Rules, 1959, (Rule 4A), where a judge occupies a residence beyond the period specified in rule 4 (that is, throughout his term of office and for a period of one month immediately thereafter), he shall be liable to pay, for the period of over stay, rent calculated in accordance with the provisions of Fundamental Rules 45-B together with full departmental charges or if the rents have been pooled, the pooled standard rent under Fundamental Rules 45-A whichever is higher.

While Rules 45-A and 45-B explain how the rent has to be calculated for the period of over stay, they also enable the Central government, in special circumstances, for reasons which should be recorded, grant licence fee-free accommodation to any occupant of the official residence. The relevant rule says: “The Central Government may, by special order, waive or reduce the amount of licence fee to be recovered from any officer, or may, by general or special order, waive or reduce the amount of municipal or other taxes, not being in the nature of house or property tax, to be recovered from any officer or class of officers” (Rule 45A-V-(b) and (c) & Rule 45B-V).

Fundamental Rule 45 enables the Central government to make rules or issue orders laying down the principles governing the allotment to officers serving under its administrative control, for use by them as residences, of such buildings owned or leased by it, or such portions thereof. Such rules or orders may lay down different principles for observance in different localities or in respect of different classes of residences, and may prescribe the circumstances in which such an officer shall be considered to be in occupation of a residence.

The question which arises in Justice Mishra’s overstaying at his official residence is whether he paid the higher rent as applicable under the rules, or whether the Central government waived or reduced the licence fee recoverable from him, by a special order, after recording reasons for the same. Agrawal’s reply, however, is silent on these aspects.

Advocate Prashant Bhushan tweeted on Monday:

Agrawal’s reply strangely takes shelter under Sections 8(1)(j) and 11(1) of the RTI Act to deny information on the details of Justice Mishra’s overstaying at his official residence.

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Under Section 8(1)(j), there shall be no obligation to give any citizen 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. This clause has a key proviso, which the CPIO seems to have ignored: Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. It is nobody’s case that information relating to a judge’s overstaying at his official residence cannot be disclosed to the Parliament.

As Agrawal has invoked Section 11(1)(b) of the RTI Act, it is possible to infer that Justice Mishra, as a third party to this information request, requested not to disclose information about his overstaying, as it impinged on his confidentiality. But then, Section 11(1)(b) too has a proviso, which could have come to the rescue of CPIO, if he intended to share the information with the applicant. This proviso states as follows: “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 harm or injury to the interests of such third party.”

The information about the overstaying at the official residence by a former judge of the Supreme Court can in no way be considered as a case of trade or commercial secret protected by law.