Kalpesh S/O Purushottam Bhatt v. Gujarat State Information Commission

Gujarat HC19 Aug 2019SCA/21970/2016

Case brief

AI extract

What is this about?

The High Court quashed an order imposed under Section 20 of the RTI Act by the Gujarat State Information Commission. The Court found the penalty order lacked sound reasoning as it failed to adequately address the PETITIONERS' file reports explaining their actions. The appeal was remanded for a fresh hearing.

What did the court decide?

Quashed and set aside the penalty order dated 25-11-2016; Appeal relegated back to the State Information Commission for fresh hearing and decision.

Kalpesh S/O Purushottam Bhatt Vs Gujarat State… — RTI and Transparency | Gujarat HC (2019)

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C/SCA/21970/2016 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 21970 of 2016

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE A.Y. KOGJE Sd/-

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=============================================

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1	Whether Reporters of Local Papers may be allowed to see the judgment ?	NO
2	To be referred to the Reporter or not ?	NO
3	Whether their Lordships wish to see the fair copy of the judgment ?	NO
4	Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?	NO

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============================================= KALPESH S/O PURUSHOTTAM BHATT & 2 other(s)

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Versus

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GUJARAT STATE INFORMATION COMMISSION & 2 other(s)

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============================================= Appearance:

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MR MEHUL H RATHOD(701) for the Petitioner(s) No. 1,2,3 MR.KISHORE PRAJAPATI(6305) for the Petitioner(s) No. 1,2,3 MR. SAHIL TRIVEDI, AGP for the Respondent(s) No. 1,2 MR SHIVANG M SHAH(5916) for the Respondent(s) No. 1 PARTY IN PERSON(5000) for the Respondent(s) No. 3

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=============================================

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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE

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Date : 19/08/2019

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ORAL JUDGMENT

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RULE . Learned Assistant Government Pleader waives service of rule on behalf of the respondent-state.

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This petition is filed under Article-226 of the Constitution of

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C/SCA/21970/2016 JUDGMENT

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India is filed for quashing and setting aside the order dated 25-11-2016 passed by the State Information Commission passed in Appeal No. 8368 of 2014. The impugned order is passed in Appeal under Section-19 of the Right to Information Act, 2005 and the order under Section-20 imposing penalty upon the petitioners.

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Learned Advocate for the petitioners submitted that the respondent No.3 was the original applicant under the the Right to Information Act, 2005. At the time of application, the petitioner No.2 was PIO and had therefore filed reply to the application requesting to give specific details of the information which was sought. As the information was not supplied as per the provision of Right to Information Act, 2005, the respondent No. 3 straight way filed an appeal on 11-04-2014 being Appeal No. 10 of 2014 under Section-19(1) of the Right to Information Act, 2005 on the ground that information sought for was not supplied within specified 30 days. The petitioner No.2 therefore filed reply to such appeal stating therein that on 29-03-2014, the application was replied to. However, the Appellate Officer of District Municipal Officer passed an order on 09-05-2014 apparently allowing the appeal directing the respondent No.3 to file supplementary application within 7 days and then directing the then PIO to provide the available information within 15 days.

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It is submitted that the respondent No.3 failed to file any supplementary application, as directed by the Appellate Authority and therefore, there was no question for supplying the information as the application was not even for a specified period. Moreover, the application at first point of time was already replied to. Therefore, no further action would be required to be taken. However, the order dated 0905-2014 passed by the First Appellate Authority was

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C/SCA/21970/2016 JUDGMENT

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challenged by the respondent No.3 on 04-08-2014 by filing the Appeal Memo No.8368 of 2014.

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It is submitted that the petitioner No.2 was by then transferred as Chief Officer of Visnagar Nagarpalika and the petitioner No.1 was appointed as Chief Officer on 21-07-2016 and in the interregnum period, other officers were given charge as Chief Officer of Visnagar Nagarpalika. In connection with the Second Appeal filed by the respondent No. 3 on 16-05-2016, the notice came to be issued upon the Chief Officer cum PIO of Visnagar Nagarpalika calling upon the PIO of Visnagar Nagarpalika to show cause as to why the penalty under the provision of Section-20 may not be passed. It is the case of the petitioners that the petitioners were never served upon the aforesaid notices and on 08-06-2016 the In-charge Chief Officer cum PIO submitted the report to the Second Appellate Authority wherein it was stated that in response to the application for information dated 03-03-2014, the respondent No.3 was given a reply on 29-03-2014. Thereafter, vide order dated 09-05-2014, First Appellate Authority pleased to partly allow the appeal by directing the respondent No.3 to file supplementary application within 7 days. The respondent No.3 has not made any supplementary application, but had straight way challenged the order in appeal. On 18-06-2016, the Second Appellate Authority passed an interim order dated 18-06-2016 directing the Incharge Chief Officer and PIO to provide information on or before 10-07-2016. The information to be provided was specified. It is submitted that pursuant to the directions dated 18-06-2016, the respondent No.3 was permitted to carry out the inspection of the files and said aspect was confirmed by the then In-charge Chief Officer under the communication dated 14-07-2016. On 21-07-2016, the Second Appellate Authority had directed that the petitioner No.3 be

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given inspection of the record of 350 files pertaining to impact fees case for his personal inspection pursuant to which inspection was given. However, during the process of the inspection being carried out, the disturbance was created on account of the presence of some Counselors, President and Chairman of Executive Committee, who had come in their due course of duty and had found that the petitioner's inspection was causing disturbance in the daily administration work of the Nagarpalika. Therefore, the respondent No.3 was called for the inspection at later point of time. However, the petitioner No.3 reported to the Second Appellate Authority on 22-07-2016. It is submitted that the respondent No.3 was using the RTI proceedings, exact procedure upon the petitioner No. 3 of facing dire consequences as he was a witness in a criminal case filed by the Chief Officer against the respondent No.3.

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In continuous of the interim order dated 21-07-2016, Second Appellate Authority directed the petitioner No.3 to give inspection of remaining files to respondent No.3 on or before 20-08-2016 and also ordered to give copies of the documents after inspection free of cost. Pursuant to such direction dated 30-07-2016, inspection of all the files demanded by the respondent No.3 were given and even photocopies of the 47 files were also given with the clear information that remaining files would be given to him later on. It is submitted that even thereafter, the documents were being given to the petitioners. On 31-08-2016, petitioner No.1 and petitioner No.3 submitted the compliance report of order dated 30-072016 and thereafter, the impugned order imposing penalty came to be passed against the petitioners. It is submitted that the present RTI proceedings initiated by the respondent No.3 are nothing but an attempt to cover up his own illegal construction with the respondent No.3 wants to regularize

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under the procedure of the Right to Information Act, 2005. It is submitted that petitioners had made all the attempts in furnishing the information available with the Nagarpalika and had also given the inspection as per the directions of the Appellate Forum. It is submitted that the inspection of files pertaining to regularization of construction was indeed given. However, the petitioner himself was not sure as to what information he was seeking and was therefore, was not able to pin point the information required by him.

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It is submitted that passing the order of penalty is on account of the impression carried by the Second Appellate Authority with the interim directions given by the Second Appellate Authority were deliberately flouted and that the representation made on behalf of the Nagarpalika was only by the Officer of Class-3 who was unable to explain that the present petitioners were absent during the course of the proceedings and therefore, the Second Appellate Authority was infuriated into passing of the impugned order. It is submitted that the petitioners were all the Government Officers discharging their duties and have discharged their duties bonafide and there is no allegations that the petitioners had acted malafide so as to attract the penalty imposed.

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The Party-in-Person submitted that it is incorrect to say that the respondent No.3 is fighting this RTI case with an objective of getting benefit in alleged encroachment or illegal construction. It is submitted that he is prepare to face any challenge in so far as his alleged illegal construction is concerned. However, his object in pursuing the proceedings under the Right to Information Act, 2005, is to bring out to large scale illegalities committed jointly by elected members of the Nagarpalika and the appointed Officers of the Nagarpalika in regularizing illegal construction without

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considering the interest of the society at large and purely for their personal gain. He referred to the impugned order and submitted that every now and then petitioners have been humiliating publicly for pursuing his right under the Right to Information Act, 2005 not only with Officers acting hand in glove with the elected members of the Nagarpalika have also registered false case against the petitioners.

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It is submitted that during the course of physical inspection of the files, the respondent No.3 was man handled, which is all recorded in the CCTV, but deliberately such CCTV footages are not produced. It is submitted that no action has been taken against those elected members who had interfered with the inspection being carried out.

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The Party-in-Person submitted that the order of penalty is justified as the respondent No.3 was not furnished with the information within stipulated time and therefore, the petitioners have failed to discharge their duties as per the provision of the Right to Information Act, 2005 and after observation observing their conduct itself, the Second Appellate Authority has passed the impugned order.

¶41

Having considered the rival submissions of the parties and having perused the documents on record, it appears that the respondents had made an application under the Right to Information Act, 2005 under Section-6 of the the Right to Information Act, 2005 on 03-03-2014, wherein he had sought for information against which on 29-03-2014, reply came to be given to the effect that the information sought for is of the year 1990 onwards and as the Act of Right to Information Act has come into the year 2005 and hence, the information may not be provided. Further if the details regarding actual application with specific dates is given for which information is sought, the same would be provided. It was also stated that certain information pertaining to third parties without whose

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consent the information could not be shared. Therefore, apparently the respondent No.3 was called upon to give the exact details of the information against which the respondent No.3 did not file any application for giving the specific application with dates, information regarding which sought but filed an Appeal No.10 of 2014 under Section-19 on 11-042014. In response to the Appeal, the reply came to be filed on 02-05-2014 stating therein that the application under the Right to Information Act, 2005 has been replied on 29-032014. Upon such reply, the First Appellate Authority passed an order on 09-05-2014, the operative part of the order reads as under:

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“Order:-

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The appeal of the appellant is partly allowed.

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The Respondent has provided the available information sought under the appeal. However, if the information provided is found unsatisfactory and incomplete, the appellant has to make supplementary application within seven days before the Respondent at the details of the discussion made in the order mentioning the particular grounds. The Respondent shall dispose such application withing 15 days providing the available information. The party aggrieved by such order, can file an appeal before the State Information Commission within 90 days.

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Signed and sealed by me on this 9^th day of May, 2014.”

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From the aforesaid, it appears that the respondent No.3 was to make the supplementary application within 7 days from the date of the order. However, the respondent No.3 filed Second Appeal against this order, but did not filed the supplementary application with the Municipality. In Appeal No.8368 of 2014, the reply came to be filed by the Visnagar Municipality on 08-06-2016 stating therein that the

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C/SCA/21970/2016 JUDGMENT

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respondent No.3 has failed to make supplementary application within stipulated period, but has filed an appeal instead. On 18-06-2016, the Second Appellate Authority passed an order by recording what had transpired earlier in the proceedings before the PIO and recorded the main contention of the respondent No.3 that the then Chief Officer by recording by giving wrong explanation has not provided information to which on behalf of the Visnagar NagarpalikaClerk – Shri Jayant Makwana was present but was not able to give any explanation. By recording this, the Second Appellate Authority concluded that the petitioners have failed to provide the information sought for in Application No. 33 of 2014 without any valid reason and therefore, issued the Show Cause Notice under Section-20(1) and 20(2). It appears that in response to notice, the petitioners filed the explanation which is as under:

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“(A) The copies of R.T.I. Register for year 2006-2007 to 2015-16 are attached herewith. The Register for year2005-06 got destroyed due to termite insects.

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(B) The inspection of the 950 files of impact fee has been made free of cost.

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(C) Upon inspection of the records of files of impact fee, you sought the copies of the various files and the copies of 288 A-4 size pages and 28 jumbo pages are attached herewith. The other copies as per your application will be provided upon payment of total Rs. 764/- (Seven Hundred Sixty Four). “

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Another report on 22-07-2016 was also filed, which reads as under:

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“As per the order passed by your court on 21/07/16 below the application of the applicant Mr. Brijeshbhai Patel, the clerk of my office- Mr. Jayantibhai N. Makwana

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telephonically informed the applicant on 21/07/16 to remain present at 12:00 o'clock in the noon on 22/07/16 for the inspection of the files. Pursuant to that, the applicant personally remained present on 22/07/16 and inspected two files. In the meantime, as the President of Nagar Palika and Chairman of Town Planning Committee- Mr. Jasubhai Patel arrived there, he told the applicant that, you are attempting to disrupt the administration of this office by inspecting the files. Upon discussion in this regard, our Chief Officer called the applicant personally and discussed with him and told that, we will intimate you in writing in the next week for the inspection of the files.

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The above is my report regarding the matter dated: 22/07/16 which may be noted.”

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Thereafter, in order dated 30-07-2016, the State Information Commission has recorded the stand of the petitioners, which is as under:

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“Appellant submitted written argument before the Commission. Further, Shri P.G. Raychandani and Shri Sudhirbhai Kansara submitted written clarification before the Commission.

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Appellant submits that as per the Impact Fee Law, Visnagar Nagarpalika has decided to regularize illegal construction in 950 cases. He has inspected about 600 case files out of them. But, copies of some documents have not been provided to him as per his demand. Moreover, Chief Officer has not provided about 350 case files for inspection of record.

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Considering submission of the appellant, the Commission ordered Shri Sudhirbhai Kansara in presence

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C/SCA/21970/2016 JUDGMENT

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of all parties that the appellant be provided remaining 350 case files for inspection of record on 22/07/2016.

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As per the aforesaid order of the Commission, the appellant remained present for inspection of record of remaining files at Visnagar Nagarpalika office on 22/07/2016. But, he has not been provided files for inspection due to protest from some councilors. The appellant intimated the Commission through fax in this regard on 22/07/2016.

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Though the Commission had issued specific order, the same was not followed by Shri Sudhirbhai Kansara. Considering seriousness of this issue, the Commission issued show cause notice to Shri Kalpesh Bhatt, present Chief Officer and Public Information Officer u/s 20(1) and 20(2) of the Right To Information Act. Further, the Commission orders Shri Sudhirbhai Kansara, deemed Public Information Officer and Office Superintendent to provide remaining case files to the appellant for inspection of record without cost by 20/08/2016. Copies of documents which are demanded after inspection of record shall be provided to the appellant without cost. Shri Kalpesh Bhatt, present Chief Officer and Shri Sudhirbhai Kansara, Office Superintendent will be fully responsible in this regard. If they fail in their duty, the Commission shall take penal action against them u/s 20(1) and 20(2) of the Right to Information Act. Shri Sudhirbhai Kansara has been given show cause notice stipulated in the order dated 18/06/2016.”

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Pursuant to the order, the Chief Officer, Visnagar Nagarpalika submitted the report on 31-08-2016, which reads

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as under:

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“As per the order of your court dated 30/07/2016, under the application of applicant Brijeshbhai Patel, the applicant was informed on 09/08/2016 in person that the applicant may inspect the files on 11/08/2016 at 12:00 hours in noon. I had remained present in the meeting of ODF, held by the Director, Gandhinagar. I had remained present in Your Honor's court in the matter of appeal no. 1539/2015 and at the Educational Tribunal Court, Ahmedabad. I had also remained present in the meeting about Open House by the e-Office Superintendent, the Collector. The applicant had come personally on 11/08/2016 and inspected all the files. During that time, heated arguments took place as the Chairman of Nagarpalika and the Chairman of Town Planning Committee Shri Jasubhai Patel arrived again. The applicant left from the office, during that time and filed an application here on 11/08/2016 that the copies of all files of Impact Fees be provided to him. As per the order, copies of 47 files, out of 350 files of Impact Fees have been provided. The procedure for providing photocopies of remaining files is underway.”

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“I, Kansara Sudhirkumar Hansraj, In-charge Office Superintendent of Visnagar Nagarpalika, respectfully submit that as per the order dated 30/07/2016 passed by your court in favour of the applicant: Mr. Brijeshbhai Patel, I had informed the applicant personally on 09/08/2016 to inspect the files at 12:00 o'clock in the afternoon on 11/08/2016. The Chief Officer attended the ODF meeting at the office of the Directorate of Gandhinagar, he also attended the court in the matter of Appeal No.1539/2015 and also appeared at the Education Tribunal at

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Ahmedabad. I was in the meeting held by the Collector, Mahesana for the Open House. The applicant visited inperson on 11/08/2016 and verified all files. Meanwhile, Mr.Jashubhai Patel, the President of Nagarpalika and the Chairman on the Town Planning Committee arrived there and heated arguments took place. Meanwhile, the applicant left the office. He had applied to this office on 11/08/2016 to provide copies of all the files of impact fees. Out of 350 files of the impact fees, copies of 47 files have been provided as per your order, and work to provide remaining files by copying one by one is under process.”

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Despite the aforesaid, the Commission has recorded as under in its impugned order:

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“ (8)The commission held next hearing of this appeal on 30/09/2016. The appellant remained present on that day. The respondents Shri Kalpesh Bhatt, Chief Officer and Shri Sudhir Kansara, Office Superintendent of Visnagar Municipality did not remain present. The municipality sent only a junior employee Shri Sanjay Makwana (clerk) before the commission.

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(9) The appellant has submitted that, in connection with his R.T.I. application, he has received copies of only 130 files out of about 950 files regarding regularizing illegal construction. Shri Makwana could not explain anything in connection with the submission made by the appellant.

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(10)Hearings of this appeal were held on 18/06/2016, 21/07/2016 and 30/09/2016 by the commission. The commission issued interim orders on 18/06/2016 and 30/07/2016 with reference to this appeal. Considering all the submissions made before the commission, it appears

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that, with reference to the R.T.I. application of 03/03/2014 made by the appellant, the then public information officer Shri P. G. Raichandani did not provide the information to the appellant showing false reasons. A show cause notice was served to Shri Raichandani under section - 20 of Right to Information Act in this matter. He submitted his explanation during the hearing of 21/07/2016 before the commission. But the commission is not satisfied with his explanation.

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(11)The commission served show cause notices to Shri Kalpesh Bhatt, Present Chief Officer of Visnagar Municipality and Shri Sudhir Kansara, Office Superintendent for failing to provide information to the appellant. No satisfactory explanation is submitted by these two employees before the commission. They have not taken care of providing information to the appellant despite repeated instructions by the commission.”

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Aforesaid chronology of events would go on to indicate that the efforts were made by the petitioners to supply the information sought for by the respondent No.3, but the Court observes that the respondent No.3 also has not acted in the direction by which he could receive the information sought for. For example in response to the very first application, the Nagarpalika gave a reply calling upon the respondent No.3 to make to give specific information, which could be furnished as the information sought by the respondent No.3 appear to be omnibus in nature. Moreover, the when the First Appellate Authority directed the respondent No. 3 to make the supplementary application by giving the details of specific details of information required instead, the respondent No.3 preferred an appeal under Section-19. This appears to have

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precipitated issued rather than resolving it, ultimately reaching to the Second appeal stage before the State Information Commission. Section-20 provides for penalties where the Information Commission at the time of deciding the appeal is of the opinion that the PIO has without any reasonable cause to receive any application for information or has not furnished the information within time specified under the provisions of this Act or malafidely denied the request for information or knowingly giving incorrect or incomplete information, shall be imposed the penalty. Proviso puts the burden of proving that the PIO acted reasonable and diligently is upon the PIO himself. It appears that though reports have been filed by the petitioners in discharge of their burden to have acted reasonable, the same is not taken into consideration merely by recording that satisfactory explanation has not been furnished by the petitioners. The reports which are filed time and again before the Information Commission, how the contents of such reports are not given satisfactory explanation is not at all discussed or answered in the impugned order. Apparently exercise is required to be undertaken to record the explanation given by the Forum of the reports by the petitioners and how such explanation are not answering satisfaction of the Commission also needs to be recorded. The order of penalty under Section-20 of the the Right to Information Act, 2005 is not order of penalty simplisitor, but has further consequence and therefore, the order of penalties need to be back by sound reasoning to discard whatever explanation is offered by the PIO.

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In the instant case, under the impugned order only reasoning given is that the explanation given is not satisfactory. Such reasoning in the opinion of the Court, is no reasoning at all and hence, the impugned order needs to be interfered with and proceedings need to be relegated back

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the Second Appellate Authority.

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In view of the aforesaid reasoning, the order dated 2511-2016 passed by the State Information Commission passed in Appeal No. 8368 of 2014 is quashed and set aside and the Appeal No. 8368 of 2014 is relegated back to the State Information Commission for afresh hearing and decision in light of the observation made herein above. While undertaking the exercise of afresh hearing, the petitioners as well as the respondent No.3 shall be granted afresh hearing. However, no further pleadings or documentary evidence is found necessary.

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The petition stands allowed to the aforesaid extent. Rule is made absolute with no order as to costs.

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Direct service is permitted.

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Sd/- (A.Y. KOGJE, J)

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PARESH SOMPURA

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Kalpesh S/O Purushottam Bhatt v. Gujarat State Information Commission

Case brief

What is this about?

What did the court decide?

Kalpesh S/O Purushottam Bhatt v. Gujarat State Information Commission

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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