IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31039 of 2009(Y)
1. B.SAJIKUMAR, S/O. LATE BHASKARAN,
... Petitioner
Vs
1. KERALA STATE INFORMATION COMMISSION,
... Respondent
2. DISTRICT COLLECTOR, PATHANAMTHITTA.
3. K.B.KAIMAL, MANGALATH HOUSE,
For Petitioner :SRI.V.PHILIP MATHEW
For Respondent :SRI.M.AJAY, SC, STATE INFORMATION COMMN
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :02/11/2009
O R D E R
P.N.RAVINDRAN, J.
---------------------------
W.P.(C) No. 31039 OF 2009
--------------------------
Dated this the 2nd day of November, 2009
J U D G M E N T
Heard Sri. V.Philip Mathews, the learned counsel appearing for the
petitioner, Sri.M.Ajay, the learned standing counsel appearing for the
Kerala State Information Commission and Sri. P.N.Santhosh, the learned
Government Pleader appearing for the second respondent.
2. The petitioner is the Village Officer of Kottangal Village. In that
capacity, he was also the State Public Information Officer of that office.
The third respondent submitted an application dated 3.1.2009 before the
petitioner for the photostat copy of a resurvey plan under the Right to
Information Act, 2005. The petitioner did not furnish the information
sought within the stipulated period of 30 days, The third respondent
thereupon filed Ext.P1 complaint dated 6.4.2009 before the State
Information Commission. On receipt of Ext.P1 complaint, the State
Information Commission sent Ext.P2 letter to the petitioner enclosing a
copy of Ext.P1 complaint and informed him that failure to furnish the
information sought within 30 days will amount to violation of Section 7(1)
of the Act and that it is also punishable under Section 20 of the Act. The
petitioner furnished the information sought on 5.5.2009. In the meanwhile,
besides the period of 30 days for furnishing the information, another
period of 87 days had passed. The State Information Commission
W.P.(C) No. 31039/09
2
thereupon issued notice to the petitioner, heard him on 25.7.2009 and
passed Ext.P4 order dated 28.7.2009 imposing on the petitioner the sum of
Rs.21,750/- as fine calculated at the rate of Rs.250/- per day for a period of
87 days. Ext.P4 is under challenge in this writ petition.
3. The petitioner challenges Ext.P4 on three grounds. The first
contention is that if the third respondent was aggrieved by the delay in
furnishing the information, he ought to have filed an appeal under Section
19 of the Act before the first appellate authority, instead of straight away
moving the State Information Commission, which is the second appellate
authority. The second contention is that within the time fixed by the
Commission in Ext.P2 letter, the information sought was furnished and
therefore there is no justification to impose any punishment. In my opinion
there is no merit in the said contentions. The petitioner does not dispute
that fact that the information sought was not furnished within 30 days. His
only explanation to that is due to pressure of work he could not furnish the
information in time. In this context it is relevant to note that on receipt of
the application the petitioner did not even sent a reply to the third
respondent. He kept quite. He acted on the third respondent’s application
more than two moths after the expiry of the stipulated period of 30 days
and that too after the State Information Commission informed him that the
Act stipulates a time limit of 30 days and that failure to furnish information
W.P.(C) No. 31039/09
3
within that time limit is punishable. The petitioner thereafter furnished the
information sought by the third respondent on 5.5.2009. The mere fact that
the petitioner acted on the direction issued by the State Information
Commission and furnished the information shortly thereafter cannot have
the effect of compliance with Section 7(1) of the Act. I therefore find no
merit in the contention of the petitioner that as he had furnished the
information pursuant to the direction in Ext.P2, no action will lie against him
under section 20 of the Act.
4. I shall now deal with the contention of the petitioner that the third
respondent should have moved the first appellate authority instead of
moving the State Information Commission. Section 18 of the Act
empowers the State Information Commission to enquire into a complaint
that there has been no response to the request to furnish information
within the time limit specified under Section 7(1) of the Act. Section 7(2) of
the Act states that if the information sought is not furnished within the time
limit of 30 days, the application should be deemed to have been refused.
Therefore by operation of law a deeming friction is created under which the
person seeking information is given the right to file an appeal before the
first appellate authority under Section 19 of the Act even though the original
authority may not have rejected the application. The mere fact that a
person seeking information is entitled to prefer an appeal on the 31st day
W.P.(C) No. 31039/09
4
after his application for information was submitted is not a ground to hold
that the State Information Commission is denuded of its power to enquire
into a complaint that there has been no response to the request for
information or access to information within the time limit of 30 days. It is
open to the person seeking information to move the State Information
Commission complaining about the inaction of the State Public Information
Officer, instead of filing an appeal. The remedies are concurrent and the
mere fact that an appeal lies after the expiry of 30 days to the first appellate
authority is no ground to hold that the State Information Commission
cannot exercise the jurisdiction vested in it under Section 18 of the Act,
before the first appeal is disposed of. I therefore overrule the petitioner’s
contention that the third respondent ought to have filed an appeal under
Section 19 of the Act before the first appellate authority instead of straight
away moving the State Information Commission.
5. The last contention urged is that the petitioner has not without
reasonable cause declined to furnish the information. Ext.P4 discloses that
the petitioner was heard on 25.7.2009. His only answer to the complaint
levelled against him was that due to pressure of work in the office, he could
not furnish the information in time. Apart from that contention he had no
other explanation for the delay in furnishing the information. If the said
ground is taken as a reasonable explanation, every Government servant
W.P.(C) No. 31039/09
5
can escape from the consequences of non disposal of applications for
information within the period of 30 days by pleading that he had attend to
other official duties and therefore he could not furnish the information
sought within 30 days. After the Right to Information Act was enacted and
brought into force, every Government servant who is designated as the
State Public Information Officer is bound to discharge the duty cast on him
under the Act. He cannot decline to take any action on the requests under
the Right to Information Act on the ground that he has other duties to
attend to. As the State Public Information Officer, the petitioner has a duty
to discharge his functions under the Right to Information Act also.
Therefore the mere fact that there was pressure of work on the petitioner,
is not a ground to hold that he was not bound to furnish the information
within the stipulated period of 30 days. Further, all that the the third
respondent had asked for was a photostat copy of a resurvey plan. The
petitioner could have passed orders on the third respondent’s application
and directed the staff in his office to implement it. It was not necessary for
the petitioner himself to take the photostat copy and hand it over to the
applicant. I am therefore not inclined to accept the petitioner’s contention
that he was prevented by reasonable cause from furnishing the
information sought within the stipulated period of 30 days. The State
Information Commission has in Ext.P4 categorically found that the
W.P.(C) No. 31039/09
6
explanation offered by the petitioner is not satisfactory. The said finding
cannot be said to be a perverse finding warranting interference.
6. The State Information Commission has by Ext.4 order imposed a
fine of Rs.21,750/- on the petitioner. The petitioner being a Government
servant and a Village Officer will be put to serious prejudice if the said
amount is recovered from him in lump. I am therefore of the opinion that
the petitioner should be permitted to pay the sum of Rs.21,750/- in five qual
monthly installments.
In the result, even while declining to interfere with Ext.P4, I dispose
of this writ petition with the direction that in the event of the petitioner
remitting the sum of Rs.21,750/- in five equal monthly installments
commencing from 10th December 2009 onwards, recovery proceedings
pursuant to Ext.P5 shall be kept in abeyance. The first installment shall be
paid on or before 10.12.2009 and the remaining installments on the 10th of
every succeeding English calender month. If the 10th of any month is a
holiday, payment shall be made on the next working day. It is clarified that
if the petitioner commits default in remitting any two consecutive
installments, the amount remaining unpaid can be recovered from him in
lump.
P.N.RAVINDRAN, JUDGE
vps
W.P.(C) No. 31039/09
7
