The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No.818 of 2014 Niranjan Kumar .……… Petitioner 1. State of Jharkhand 2. Chief Information Commission, R.T.I., Ranchi 3. Sri Shabhu Nath Singh; organizer, citizens commission for National Issues; Gumla, P.O. P.S. & Distt.-Gumla ……… Respondents CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD --------- For the Petitioner For the Resp. No.2 : Mr. Rabindra Prasad, Advocate : Mr. Sanjoy Piprawall, Advocate 10/05.05.2023 --- This writ petition is under Article 226 of the Constitution of India, whereby and whereunder, the order dated 04.12.2013 passed by the Chief Information Commissioner in Appeal No.2671 of 2012 has been assailed, whereby, the penalty of Rs.20,000/- has been imposed upon the writ petitioner who, in the capacity of holding the post of Public Information Officer-cum-Executive Engineer, Rural Works Department, Works Division, Gumla, has failed in discharging his duties. 2. The fact of the case is that the Information Seeker, the respondent no.3 has made an application for supply of relevant information in view of the provision of Section 6 of the Right to Information Act, 2005. The writ petitioner has not provided the information within the stipulated period as stipulated under Section 5
Legal Reasoning
of the Act, 2005 which led the respondent no.3 to file first as also the second appeal. At the stage of second appeal, the notice was issued to the writ petitioner to explain as to why the penalty, as stipulated under the provision of Section 20(1) of the Act, 2005 is not imposed due to non-furnishing the information as required to be furnished 2 within the stipulated period as provided under Section 5 of the Act, 2005. The reply has been given to the said show cause explaining the reason since the matter was five years old, hence, the delay has been caused. The Chief Information Commissioner by not accepting the aforesaid reply to be satisfactory has imposed the penalty of Rs.20,000/- in exercise of power conferred under Section 20(1) of the Act, 2005 by passing the order dated 04.12.2013 which is the subject matter of the instant petition.
Legal Reasoning
3. Mr. Rabindra Prasad, learned counsel appearing for the petitioner by referring to reply to the show cause has submitted that the reason has been assigned to the effect that information which was sought for, since related to five years old record, therefore, the delay has been caused. It has been contended that the delay was not mala-fide, rather, that was beyond the control, since, the record was five years old. The commission ought to have considered this aspect of the matter before inflicting penalty of Rs.20,000/- but having not done so, the said order suffers from impropriety and hence, not sustainable in the eye of law. 4. While on the other hand, Mr. Sanjoy Piprawall, learned counsel appearing for respondent no.2-Chief Information Commission has submitted that the statute is very specific in this regard that in any case or in any circumstances, the information is to be furnished within the stipulated period of 30 days, as would be evident from the provision of Section 7 of the Act, 2005. 3 Herein, since the writ petitioner himself is admitting by tendering apology in not furnishing the information within the period of 30 days on the ground that the record was old one. The contention has been made that the statute does not provide any relaxation, rather, the implication of aforesaid provision is mandatory and hence, if there is delay in supply information having
Decision
been accepted by the writ petitioner, therefore, in such circumstances, the commission has exercised the power conferred under Section 20(1) of the Act, 2005 after giving due opportunity of hearing to the petitioner and thereafter, the reply having found not to be satisfactory, has imposed penalty of Rs.20,000/-, therefore, said order cannot be said to suffer from an error. 5. This Court has heard the learned counsel for the parties and considered the pleading made in the petition as also considered the finding recorded by the Chief Information Commissioner in the order impugned dated 04.12.2013. 6. The order by which, the penalty of Rs.20,000/- was imposed by the Chief Information Commissioner, is under challenge on the ground that the excuse which was furnished by the petitioner regarding the record related to five years old, as such, there should not have been penalty to be imposed in exercise of power conferred under Section 20(1) of the Act, 2005. 7. This Court, in order to appreciate the aforesaid submission, deems it fit and proper to refer the provision of Section 5 and Section 7 of the Act, 2005, which read as under:- “5. Designation of Public Information Officers.-(1) Every public authority shall, within one hundred days of 4 the enactment of this Act, designate as may officers as the Central Public Information Officers or State Public Information Officers, as the case may be, in all administrative units or offices under it as may be necessary to provide information to persons requesting for the information under this Act. (2) Without prejudice to the provisions of sub- section (1), every public authority shall designate an officer, within one hundred days of the enactment of this Act, at each sub-divisional level or other sub-district level as a Central Assistant Public Information Officer or a State Assistant Public Information Officer, as the case may be, to receive the applications for information or appeals under this Act for forwarding the same forthwith to the Central Public Information Officer or the State Public Information Officer or senior officer specified under sub-section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be. Provided that where an application for information or appeal is given to a Central Assistant Public Information Officer or a State Assistant Public Information Officer, as the case may be, a period of five days shall be added in computing the period for response specified under sub-section (1) of section 7. (3) Every Central Public Information Officer or State Public Information Officer, as the case may be, shall deal with requests from persons seeking information and 5 render reasonable assistance to the persons seeking such information. (4) The Central Public Information Officer or State Public Information Officer, as the case may be, may seek the assistance of any other officer as he or she considers it necessary for the proper discharge of his or her duties. (5) Any officer, whose assistance has been sought under sub-section (4), shall render all assistance to the Central Public Information Officer or State Public Information Officer, as the case may be, seeking his or her assistance and for the purposes of any contravention of the provisions of this Act, such other officer shall be treated as a Central Public Information Officer or State Public Information Officer, as the case may be.” 7. Disposal of request.-(1) Subject to the proviso to sub- section (2) of section 5 or the proviso to sub-section (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9: Provided that where the information sought for concerns the life or liberty of a person, the same shall be provided within forty-eight hours of the receipt of the request. (2) If the Central Public Information Officer or State Public Information Officer, as the case may be, fails to give 6 decision on the request for information within the period specified under sub-section (1), the Central Public Information Officer or State Public Information Officer, as the case may be, shall be deemed to have refused the request. (3) Where a decision is taken to provide the information on payment of any further fee representing the cost of providing the information, the Central Public Information Officer or State Public Information Officer, as the case may be, shall send an intimation to the person making the request, giving- Xxxx xxxx xxxx xxxx xxxx (4) Where access to the record or a part thereof is required to be provided under this Act and the person to whom access is to be provided is sensorily disabled, the Central Information Officer or State Public Information Officer, as the case may be, shall provide assistance to enable access to the information, including providing such assistance as may be appropriate for the inspection. (5) Where access to information is to be provided in the printed or in any electronic format, the applicant shall, subject to the provisions of sub-section (6), pay such fee as may be prescribed: Provided that the fee prescribed under sub-section (1) of section 6 and sub-sections (1) and (5) of section 7 shall be reasonable and no such fee shall be charged from the persons who are of below poverty line as may be determined by the appropriate Government. 7 (6) Notwithstanding anything contained in sub-section (5), the person making request for the information shall be provided the information free of charge where a public authority fails to comply with the time limits specified in sub-section (1). (7) Before taking any decision under sub-section (1), the Central Public Information Officer or State Public Information Officer, as the case may be, shall take into consideration the representation made by a third party under section 11. (8) Where a request has been rejected under sub-section (1), the Central Public Information Officer or State Public Information Officer, as the case may be, shall communicate to the person making the request,- (i) the reasons for such rejection; (ii) the period within which an appeal against such rejection may be preferred; and (iii) the particulars of the appellate authority. (9) An information shall ordinarily be provided in the form in which, it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question.” It is evident from the bare reading of the provision of Section 5 and Section 7 of the Act, 2005 that implication of aforesaid statutory provision is mandatory in nature and the information is to be supplied 8 to the information seeker within the period of 30 days from the date of seeking such information by filing an application. However, the provision appeal by way of first stage and second stage has been provided under Section 19 of the Right to Information Act, 2005. But even in that circumstance, the information is to be supplied within the period of 30 days. Admittedly herein, the information has not been supplied within the period of 30 days, rather, the information was supplied at the second appellate stage, i.e., before the Chief Information Commission. The Chief Information Commission has considered it fit to exercise the power conferred under Section 20(1) of the Act, 2005, whereby and whereunder, power has been conferred upon the State Information Commission to impose penalty in view of the provision of Section 20(1) of the Act, 2005 after providing reasonable opportunity of hearing. Herein, show cause notice has been issued and the same has been responded by the writ petitioner, wherein, the fact about delay in supplying the information has been admitted but with an excuse that information since relates to record of five years old and as such, the same could not have been traced. 8. The question arises that as to whether any relaxation contrary to the statutory mandate can be given by the Court of law. 9. The law is well settled that a thing is to be done strictly in accordance with law which is applicable in the facts and circumstances of the case, as has been held by the Hon’ble Apex Court in the case of Babu Verghese and Ors. vs. Bar Council of Kerala and Ors., reported 9 in [(1999) 3 SCC 422], wherein at paragraphs-31 and 32 it has been held as under:- “31.It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King Emperor who stated as under: “[Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.”] 32.This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of V.P. and again in Deep Chand v. State of Rajasthan. These cases were considered by a three-judge bench of this Court in State of U.P. v. Singhara Singh and the rule laid down in Nazir Ahmad case was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognized as a statutory principle of administrative law.” 10. Here, in the instant case, Section 5 of the Act, 2005 provides no clause of relaxation, therefore, the State Information Commission by taking the object and intent of the provision of Section 5 if has exercised the power conferred under Section 20(1) of the Act, 2005, by taking into consideration the admission on the part of the writ petitioner that information was furnished after delay of five years, which admittedly consumed the statutory period of 30 days and if in that circumstance, the State Information Commission, after providing 10 reasonable opportunity to the writ petitioner has imposed penalty of Rs.20,000/-, the same according to the considered view of this Court, cannot be said to suffer from an error. 11. The law is well settled for issuance of Writ of Certiorari that the same can only be exercised if there is any error apparent on the face of record or the order is being passed without jurisdiction or there is violation of principle of natural justice, but none of the case is available herein, hence, it is not a fit case where the order impugned requires interference by issuance of Writ of Certiorari. 12. In the result, this writ petition fails and is dismissed. Rohit/-A.F.R. (Sujit Narayan Prasad, J.)