Dismissed

Bisheswar Ram v. the State of Jharkhand through Secretary Deptt of Mines and Geology

Jharkhand HC2 Jul 2019WPC/1924/2019

Case brief

AI extract

What is this about?

The High Court of Jharkhand dismissed a writ petition seeking to quash a penalty order under the RTI Act. The petitioner, a District Mining Officer, challenged the penalty imposed for delay in furnishing information after an RTI application transfer. The Court held that the delay did not justify quashing the order.

What did the court decide?

Writ petition dismissed; impugned penalty order under RTI Act upheld.

Bisheswar Ram Vs the State of Jharkhand through… — RTI and Transparency | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No.1924 of 2019

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Bisheswar Ram son of late Doman Ram aged about 60 years, resident of Narayan Enclave, Harihar Singh Road, Morahnadi Ranchi, P.O. Kanke and P.S. Bariatu, District Ranchi, currently posted as District Mining Officer, Simdega.

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…… Petitioner

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Versus

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The State of Jharkhand, through Secretary, Department of Mines and Geology, Nepal House, P.O. and P.S. Doranda, District Ranchi834002.

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Public Information Officer, Department of Mines and Geology, Nepal House, P.O. and P.S. Doranda, District Ranchi-834002.

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Deputy Commissioner, Gumla, having its office at Collectorate Building Gumla, P.O. and P.S. Gumla, District Gumla.

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State Chief Information Commissioner, Jharkhand State Information Commission, CTI Colony, Sector 4, Birsa Nagar, P.O. Doranda, P.S. Doranda, District Ranchi.

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Shafique Rahman son of not known to the petitioner, resident of Lane No.2, Sattar Colony, Bariatu, P.O. and P.S. Bariatu, District Ranchi.

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Deputy Commissioner, Simdega, having its office at DC Office Road, officer's colony, P.O. and P.S. Simdega, District Simdega.

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…… Respondents

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CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Petitioner : Mr. Rohitashya Roy Alis Rohit Roy, Advocate Mr. Vibhor Mayank, Advocate Mr. Tarun Kr. Mahato, Advocate For the Resp No.4 : Mr. Sanjay Peprawal, Advocate For the Resp Nos.1,3&6 : Mr. Mahavir Poddar, Advocate ----------------------------

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06 / Dated 02nd July, 2019

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This writ petition in under Article 226 of the Constitution of India whereby and whereunder the order dated 22.03.2019 passed in Appeal Case No.175 of 2016 dated 07.03.2019 is under challenge.

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The brief facts of the case of the petitioner is that one application has been filed by the respondent No.5 before the respondent No.2, Public Information Officer, Department of Mines and Geology, Ranchi on 05.08.2015 under the Right to Information Act, 2005 for obtaining information/documents in respect of the mining lease application 28.01.1986 for minerals bauxite over an area 144 acres in Mouza Harrup (Bishunpur) in Gumla District in erstwhile State of Bihar.

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The said application has been filed before the Public Information Officer, Ranchi on 05.08.2015 which was forwarded by the PIO Ranchi to the PIO Gumla on 12.08.2015 but the information has not been furnished as demanded, therefore, the respondent No.5 has filed first appeal but even in course of first appeal, the information has not been furnished, therefore, after lapse of statutory period provided to supply the information, at the stage of first appeal the respondent No.5 has preferred second appeal before the State Information Commission.

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The State Information Commission has come to the finding that there is delay caused by the petitioner since after receipt of application dated 05.08.2015 which was forwarded on 12.08.2015 the required information has not been furnished to the respondent No.5 and therefore, has passed an order of imposing penalty in exercise of power conferred under Section 20 sub-section (1) of the Right to Information Act, 2005 which is under challenge in this writ petition.

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The said order has been challenged by the petitioner on the ground that the application dated 05.08.2015 said to have been forwarded by the PIO Ranchi on 12.08.2015 has never been received in the office of the PIO Gumla and therefore, no accountability can be casted upon him if there is any delay in furnishing the information as demanded by the respondent No.5.

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Further contention has been raised that the moment it came

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to the notice of the petitioner about the requirement of the information seeker, respondent No.5, information has been furnished,

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upon which, not being satisfied has made application that he is having no grievance and as such prayer has been made to drop the proceeding but the State Information Commission instead of dropping the proceeding, simplicitor has disposed of the case by imposing penalty in exercise of power conferred under Section 20 sub-section (1) of the Right to Information Act, 2005 therefore, the State Information Officer without looking to the factual aspect and without considering the fact that the application dated 05.08.2015 even though has not been received in the office of the PIO Gumla, has imposed the penalty upon it which cannot be said to be in consideration of the factual aspect in right perspective, therefore, the impugned order is not sustainable in the eye of law, therefore, is fit to be quashed.

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Mr. Sanjay Peprawal, learned counsel appearing for the State Information Commission has submitted that there is no illegality in the order as because the application has been made by the respondent No.5 on 05.08.2015 and thereafter the PIO Ranchi who acting in pursuance to the provision of Section 6 sub-section (3) has forwarded the application before the PIO Gumla, the petitioner on 12.08.2015 and there is cogent evidence that the application dated 05.08.2015 has been forwarded by the respondent No.2 before the Office of the Public Information Officer, Gumla on 12.08.2015 since the record which was produced by the respondent No.2, Public Information Officer, Ranchi has proved this aspect of the matter, however, the same has been disputed by the petitioner but without placing any documentary evidence which has been produced by the respondent No.2 before the State Information Commission, therefore, the finding recorded by the State Information Commission since is based upon the document which needs no interference by this Court for the simple reason that the writ has been sought to be issued i.e., writ of certiorari and it is settled position of law that the scope of issuance of writ of certiorari is very limited and can only be exercised if there is inherent defect in the order or the order is without jurisdiction or there is miscarriage of justice, but no such ground has been agitated while assailing the said order.

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Having heard the learned counsel for the parties and upon appreciation of their rival submissions it is evident from the material available on record that it is not in dispute that one application has been filed by the respondent No.5 on 05.08.2015 before the Public Information Officer, Ranchi for seeking some information pertaining to mining operation of minerals bauxite over an area 144 acres in Mouza Harrup (Bishunpur) in Gumla District in the erstwhile State of Bihar.

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Admittedly, the application under Section 6 of the Right to Information Act, 2005 has not been made before the concerned District from where the information was to be furnished but the respondent No.2 immediately after receipt of application dated 05.08.2015 and acting in pursuance to the provision of Section 6 sub-section (3) of the Right to Information Act, 2005 has forwarded the said application before the Public Information Officer, Gumla on 12.08.2015.

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The provision of Section 6 sub-section (3) needs to be referred which reads hereunder as :

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“ 6. (3) Where an application is made to a public authority requesting for an information,–

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(i) which is held by another public authority; or

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(ii) the subject matter of which is more closely connected with the functions of another public authority, the public authority, to which such application is made, shall transfer the application or such part of it as may be appropriate to that other public authority and inform the applicant immediately about such transfer.

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Provided that the transfer of an application pursuant to this sub-section shall be made as soon as practicable but in no case later than five days from the date of receipt of the application.”

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Therefore, this Court is of the view that the application has been made by the respondent No.5 before the Public Information Officer, Ranchi for seeking information from the Public Information Officer, Gumla cannot be said to suffer from any legal infirmity in view of the provision of Section 6 sub-section (3).

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The provision of Section 6 sub-section (3) contends that the

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application if filed by any public authority, the same would be transferred by the said authority to the authority from where the information is to be furnished but the application is to be forwarded immediately not later than 5 days but herein the application although has been forwarded on 7^th day. The information could not have been supplied to the respondent No.5 which created an occasion for him to invoke the jurisdiction of first appellate authority and even when the information has not been supplied, he has invoked the jurisdiction of second appellate authority i.e., the State Information Commission wherein the State Information Commission after taking into consideration the stand of the PIO Ranchi has issued notice to the petitioner on 29.09.2016 (Annexure-7) in pursuance thereto, the petitioner has appeared and disputed the contention of the respondent No.2 to the effect that no such application which has been said to be forwarded by the respondent No.2 on 12.08.2015 has been received in the office of Public Information Officer, Gumla.

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This contention of the petitioner has been disbelieved by the State Information Commission by going across the relevant records produced by the Public Information Officer, Ranchi wherefrom the Commission has came to the conclusive finding that there is cogent evident that the application dated 05.08.2015 has been furnished before the petitioner who has been treated to be a deemed Public Information Officer but the said fact has been disputed and disputing the said fact, no such evidence has been produced by the petitioner before the Public Information Commission reaching Commission to the conclusion by disbelieving the contention raised by the Public Information Officer, Ranchi and therefore, the Commission has found that there is defiance on the part of the petitioner in compliance with the statutory provision as contained in the provision of Right to Information Act, 2005 but although the information has been furnished to the applicant and to that effect an application has been filed by the respondent No.5 for dropping the proceeding but the question herein is that even accepting that the information has been furnished to the applicant can the authority be restrained from acting in pursuance to the provision of Section 20 sub-section (1) of the

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Right to Information Act, 2005.

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For answering the issue, it would be relevant to refer the provision of Section 20 sub-section (1) of the Right to Information Act, 2005, which reads hereunder as :-

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“20.Penalties. ––(1) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees;

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Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him:

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Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be.”

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It is evident from the aforesaid provision that the same confers power upon the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees

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each day till application is received or information is furnished.

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This Court has appreciated the aforesaid provision of law on the basis of the factual aspect involved in this case wherefrom it is evident that the application dated 05.08.2015 which has been furnished by the PIO Ranchi to PIO Gumla on 12.08.2015 but the said aspect of the matter has been denied and disputed but without any cogent evidence therefore, the said action of the petitioner will squarely come under the fold of Section 20 sub-section (1) of the Right to Information Act, 2005 for the reason that there is refusal to receive an application for information or malefidely denied the request for information.

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This Court after considering the provision of Section 20 is further of the view that the same has been enacted by way of deterrent measure so that there must not be any delay in supplying the information and if there is delay, it is upon the Central Information Commission or the State Information Commission to impose penalty so that such type of occasion may not be repeated in future.

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Question of enactment of the provision as contained under Section 20 of the Right to Information Act, 2005 clearly clarifies the position about the mandatory nature of the provision of the Act so that if any application would be filed by any information seeker, the time schedule as provided either under Section 7 or under Section 19 which contains provision of first and second appeal, the same is to be provided within the stipulated time and to make this time schedule strictly to be complied with, the provision of penalty has been made.

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If the contention of the petitioner to the effect that when the

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information has been furnished, there was no occasion to impose penalty, if the same would be allowed, the same will come in the teeth of the provision of Sections 19 & 20 of the Right to Information Act and if any relaxation would be granted by the Court, ultimately object and intent of the Act will suffer.

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Since this writ petition has been filed for issuance of writ of certiorari

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and it is settled position of law that under Article 226 of the Constitution of India writ of certiorari can be issued but in condition where there is error apparent on the face of record or the order is without jurisdiction or the order has been passed in infringement of fundamental right but that is not the case herein and as such it is not a case to interfere sitting under Article 226 of the Constitution of India by issuing writ of certiorari for quashing the order dated 07.03.2019.

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In view thereof, this Court is not inclined to interfere with the order impugned, accordingly, the writ petition fails and is dismissed.

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(Sujit Narayan Prasad, J.)

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Saurabh

Bisheswar Ram v. the State of Jharkhand through Secretary Deptt of Mines and Geology

Case brief

What is this about?

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Bisheswar Ram v. the State of Jharkhand through Secretary Deptt of Mines and Geology

Case brief

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