B.Sajikumar vs Kerala State Information … on 2 November, 2009

Kerala High Court
B.Sajikumar vs Kerala State Information … on 2 November, 2009
       

  

  

 
 
  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

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