Partly allowed

Karthiyani v. State of Kerala

Kerala HC1 Jun 2022WP(C)/7699/2022

Case brief

AI extract

What is this about?

The court set aside an order of the State Information Commission that was challenged for being passed at the back of the petitioner. Finding that the third party was not heard contrary to statutory provisions, the writ petition was allowed and the matter remanded for a proper hearing.

What did the court decide?

Order of the State Information Commission set aside; writ petition allowed; matter remitted to hear the appeal after affording opportunity of hearing to the third party.

Karthiyani Vs State of Kerala — RTI and Transparency | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR. JUSTICE AMIT RAWAL WEDNESDAY, THE 1^ST DAY OF JUNE 2022 / 11TH JYAISHTA, 1944 WP(C) NO. 7699 OF 2022

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PETITIONER/S:

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KARTHIYANI AGED 59 YEARS VADASSERY HOUSE, MOORKKANIKKARA, KOZHUKKULLI P.O, THRISSUR DISTRICT, PIN - 680752 BY ADVS. N.K.SUBRAMANIAN N.C.MOHANAN ABRAHAM MATHAN ATHUL TOM

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RESPONDENT/S:

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1 STATE OF KERALA REPRSENTED BY SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001 2 SECRETARY TO GOVERNMENT AGRICULTURAL DEPARTMENT, GOVERNMENT SECRETARIUAT, THIRUVANANTHAPURAM, PIN – 695001 3 STATE INFORMATION COMMISSION PUNNEN ROAD, THIRUVANANTHAPURAM - 695 001, PIN – 695001 4 THE DISTRICT COLLECTOR THRISSUR AYYANTHOLE P.O THRISSUR, PIN – 680003 5 THE REVENUE DIVISIONAL OFFICER OFFICE OF THE RDO, AYYANTHOLE THRISSUR, PIN – 680003 6 GEOLOGIST MINING AND GEOLOGY DEPARTMENT, OFFICE OF GEOLOGIST, THRISSUR, PIN – 680003 7 C.V RAMAN AGED 80 YEARS S/O VELAYUDHAN EZHUTHACHAN, CHEMMANAD HOUSE, MOORKINIKARA, KOZHUKULLY P.O, THRISSUR, PIN - 680152 BY ADVS. SHRI.M.AJAY, SC, STATE INFORMATION COMMN T.RAMPRASAD UNNI S.M.PRASANTH G.RENJITH R.S.ASWINI SANKAR T.H.ARAVIND

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.06.2022, ALONG WITH WP(C).27429/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 7699 OF 2022 and conctd. Case 2

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

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THE HONOURABLE MR. JUSTICE AMIT RAWAL WEDNESDAY, THE 1^ST DAY OF JUNE 2022 / 11TH JYAISHTA, 1944 WP(C) NO. 27429 OF 2020

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PETITIONER/S:

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C.V. RAMAN, SON OF VELAYUDHAN EZHUTHACHAN, RESIDING AT CHEMMANAD HOUSE, MOORKINKARA, KOZHUKULLY P.O., THRISSUR-680 152.

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BY ADVS. K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SRI.S.M.PRASANTH SRI.G.RENJITH SMT.R.S.ASWINI SANKAR SRI.T.H.ARAVIND

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RESPONDENT/S:

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1 THE LAND REVENUE COMMISSIONER, THIRUVANANTHAPURAM-695 001.

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2 THE DISTRICT COLLECTOR THRISSUR, AYYANTHOLE, PIN-680 003.

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3 THE REVENUE DIVISIONAL OFFICER OFFICE OF RDO, AYYANTHOLE, THRISSUR-680 003.

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4 THE GEOLOGIST MINING AND GEOLOGY, OFFICE OF THE GEOLOGIST, THRISSUR-680 003.

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5 KARTHIYANI WIFE OF PUSHKARAN, VADASSERY HOUSE, MOORKKANIKKARA, KOZHUKKULLI P.O., THRISSUR DISTRICT, PIN-680 752.

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BY ADVS. N.K.SUBRAMANIAN N.C.MOHANAN ABRAHAM MATHAN ATHUL TOM

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.06.2022, ALONG WITH WP(C).7699/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 7699 OF 2022 and conctd. Case 3

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JUDGMENT

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Petitioner is the owner in possession of the property having an extent of 1 Acre 62 cents of land in Sy.No.206 of Kozhukulli Village. The aforementioned property was acquired in 2006 and was described as 'Nilam' in the Data Bank. A permission was sought to excavate and mining of clay from the land under the provisions of law Utilization Order, 1967 to the competent authority ie., Revenue Divisional Officer. 6^th respondent, Geologist granted the permission to the petitioner on 5.5.2008, Ext.P2.

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Counsel for the petitioner submits that the application for seeking the permission was inadvertently typed as 3.4.2004 whereas it should be in 2008 as the permission was granted only in 2008 as per Ext.P2.

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The 7^th respondent who is competitor of the petitioner, nearby owner of the land, filed a complaint to the District Collector, 4^th respondent on 19.1.2013 alleging that the petitioner was filling up land in violation of provisions of Kerala Paddy and Wetland Act, 2008. A notice was received to appear before the 4^th respondent. The Collector passed the order directing the petitioner to reclaim the land as it was registered before. Against

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WP(C) NO. 7699 OF 2022 and conctd. Case 4

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the order Ext.P3, petitioner preferred a revision petition before the Government on 17.11.2015, Ext.P4. 7^th respondent preferred a writ petition bearing No.23521 of 2015 for implementation of Ext.P3 order and another writ petition bearing No.2936 of 2016 for disposal of the revision petition. Pending the aforementioned writ petition, prosecution proceedings were initiated against the petitioner under the provisions of Kerala Paddy and Wet land Act on the basis of a complaint filed by the Village Officer. The aforementioned action was taken to this Court vide Crl.M.C No.7927 of 2015. This Court vide order dated 18.2.2016 allowed the petition and the proceedings against the petitioner in C.C No.788/2014 of the Chief Judicial Magistrate Court, Thrissur were quashed and further direction was issued that the petitioner shall not reclaim the paddy for any purposes other than for restoring it as a paddy field so that the paddy cultivation can be undertaken. The writ petitions preferred by the 7^th respondent were disposed of vide common judgment dated 22.6.2016, Ext.P6 whereby direction was issued to dispose of the revision petition Ext.P4,which entailed into dismissal of the revision petition by Ext.P7. Against which the petitioner had preferred a writ petition bearing No.37240 of 2016, which is pending adjudication and has been attached to the

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WP(C) NO. 7699 OF 2022 and conctd. Case 5

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present writ petition owing to the fact that the parties in both the petitions are same. There was an interim order dated 22.11.2016. By the said order resumption of land ordered as per Ext.P3 and P6. The 7^th respondent when was not successful, particularly when there was an interim order in the pending writ petition filed a civil suit O.S No.626 of 2013 before the Sub Court, Thrissur for mandatory injunction seeking direction to fill up the area being used for clay mining. Though the suit was not maintainable as the matter is already pending consideration in this Court. However when the counter affidavit to the writ petition preferred by the petitioner was filed, it reveals that the respondent No.7 had obtained the information from the State Public Information Officer regarding the file No.5884 for the period 2004-05 and file dated 3.4.2004 was stated to be not available. Being not satisfied against the order of the Information Authority 7^th respondent preferred an appeal before the First Appellate Authority/Sub Collector, Thrissur which was disposed of vide order dated 1.8.2016, Ext.P11. The request of the 7^th respondent was rejected. In view of the provisions of Section 19 of the Right to Information Act, 7^th respondent preferred a second appeal before the State Information Commissioner, bearing No.1908 (2)/2016/SIC. The

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WP(C) NO. 7699 OF 2022 and conctd. Case 6

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said appeal has been allowed at the back of the petitioner that the order of the Revenue Divisional Officer, Thrissur dated 3.4.2004 was fabricated and therefore it require a detailed enquiry to be conducted by the District Collector. It is contended that the sub Section 4 of Section 19 of the Act, clearly prescribes that the appeal is filed before the appellate authority, the appellate authority is required to hear the third party against whom the information was being sought. From the memo of parties and the tenor and mode of the order does not reflect that at any point of time, the petitioner was heard and thus the order aforementioned has been passed at the back of the petitioner and liable to be set aside being wholly illegal and arbitrary.

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7^th respondent in W.P.(C) No.7699 of 2022 has filed a writ petition bearing No.27429 of 2020 for implementation of the order of the State Information Commission which is Ext.P4 dated 21.4.2017 and Ext.P12 in W.P.(C) No.7699 of 2022. Thus both the writ petitions are decided together.

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I have heard the learned counsel for the parties and appraised the paper book. Mr. M.Ajay appears for the State Information Commission, Thiruvananthapuram. I am surprised that the State Information Commissioner, as a quasi -judicial

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WP(C) NO. 7699 OF 2022 and conctd. Case 7

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authority is defending the order by engaging the counsel. Such an act on the part of the State Information Commission is not acceptable. It is just like a quasi-judicial order or authorities passing an order for impleadment as a party to overcome the objection of non impleadment of the proper party but that would not mean that they would engage a lawyer and defend their orders in the court. Henceforth it is directed that whenever such authorities under the Right to Information Act are made parties, they are not required to engage the counsel by defending their orders. Let this order be communicated to the competent authority to deprive from engaging the counsel as it would unnecessarily entail into expenditure from the State Exchequer.

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Section 19 of the Right to Information Act, reads thus:

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19:Appeal

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(1) Any person who, does not receive a decision within the time specified in sub-section (1) or clause (a) of sub-section (3) of section 7, or is aggrieved by a decision of the Central Public Information Officer or the State Public Information Officer, as the case may be, may within thirty days from the expiry of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the Central Public Information Officer or the State Public Information Officer, as the case may be, in each public authority: Provided that such officer may admit the appeal after the expiry of the period of thirty days if he or she is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

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(2) Where an appeal is preferred against an order made by a Central Public Information Officer or a State Public

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WP(C) NO. 7699 OF 2022 and conctd. Case 8

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Information Officer, as the case may be, under section 11 to disclose third party information, the appeal by the concerned third party shall be made within thirty days from the date of the order.

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(3) A second appeal against the decision under sub-section (1) shall lie within ninety days from the date on which the decision should have been made or was actually received, with the Central Information Commission or the State Information Commission: Provided that the Central Information Commission or the State Information Commission, as the case may be, may admit the appeal after the expiry of the period of ninety days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

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(4) If the decision of the Central Public Information Officer or State Public Information Officer, as the case may be, against which an appeal is preferred relates to information of a third party, the Central Information Commission or State Information Commission, as the case may be shall give a reasonable opportunity of being heard to that third party.

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(5) In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request.

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(6) An appeal under sub-section (1) or sub-section (2) shall be disposed of within thirty days of the receipt of the appeal or within such extended period not exceeding a total of forty-five days from the date of filing thereof, as the case may be, for reasons to be recorded in writing.

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The State Government has also framed the rules vide notification dated 31.5.2016 called Kerala State Information Commission (Procedure for Appeal) Rules 2006. As per sub Rule 5 of Rule 5, the procedure for deciding the appeal has been prescribed wherein it is imperative for the appellate authority to

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WP(C) NO. 7699 OF 2022 and conctd. Case 9

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hear the third party.

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Procedure in deciding appeal – In deciding an appeal, the Commission may:xxx

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v. hear the third party;

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On joint reading of the Act as well as the Rules extracted above, it is evident that at any point of time when the appeal is preferred by informant against the order of the subordinate authority seeking information against the 3^rd party, 3^rd

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party is required to be heard. The order impugned Ext.P12 does not reflect any such opportunity of hearing being afforded to the petitioner. In this view of the matter order of the State Information Commission is not sustainable and therefore hereby set aside. Writ petition is allowed. Matter is remitted back to the 3^rd respondent to hear the appeal preferred by the 7^th respondent in accordance with law after affording an opportunity of hearing.

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The prayer in the W.P.(C) No.27429 of 2020 has become

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redundant in view of the disposal of the W.P.(C) No.7699 of 2022. Thus W.P.(C) No.27429 of 2020 also stands disposed of.

SD/-

sab

AMIT RAWAL

JUDGE

WP(C) NO. 7699 OF 2022 and conctd. Case 10

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APPENDIX OF WP(C) 27429/2020

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PETITIONER EXHIBITS

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EXHIBIT P1 TRUE COPY OF JUDGMENT DATED 22.6.2016 IN WPC NO.2936 OF 2016 ALONG WITH A CONNECTED CASES. EXHIBIT P2 TRUE COPY OF ORDER NO.B2-5884/04/E.DIS DATED 3.4.2004 ISSUED BY THE RDO, THRISSUR TO THE GEOLOGIST, THRISSUR. EXHIBIT P3 TRUE COPY OF ORDER NO.B3-67129/2012 DATED 12.3.2013 ISSUED BY THE DISTRICT COLLECTOR, THRISSUR. EXHIBIT P4 TRUE COPY OF PROCEEDINGS OF THE APPEAL PETITION NO.1908(2)/2016/SIC (FILE NO.10881/SIC-GEN6/2016) DATED 21.4.2017 ISSUED BY THE STATE INFORMATION COMMISSION, KERALA ALONG WITH COVERING LETTER NO.10881/SIC-GEN6/2016 DATED 10.5.2018

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WP(C) NO. 7699 OF 2022 and conctd. Case 11

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RESPONDENTS EXBIHTS:

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R5(A) A TRUE COPY OF THE ORDER OF THE HONOURABLE COURT IN CRL.M.C NO.7927 OF 2016 DATED 18.2.2016

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R5(B) A TRUE COPY OF AN ORDER PASSED BY THE DISTRICT COLLECTOR B3-67129/2012 DATED 12.3.2013

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R5(C) A TRUE COPY OF AN ORDER BEARING NO.918/2016/AGRI DATED 5.11.2016

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R5(D) A TRUE COPY OF THE INTERIM ORDER DATED 22.11.2013 IN W.P.(C) NO.37240/2016

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WP(C) NO. 7699 OF 2022 and conctd. Case

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APPENDIX OF WP(C) 7699/2022

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PETITIONER EXHIBITS

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Exhibit P1	TRUE COPY OF LETTER DATED 03.04.2004 ISSUED BY THE 5TH RESPONDENT- REVENUE DIVISIONAL OFFICER
Exhibit P2	TRUE COPY OF PERMIT DATED 05.05.2008 ISSUED BY 6TH RESPONDENT
Exhibit P3	TRUE COPY OF ORDER BEARING NO.B3-67129/2012 DATED 12.03.2013 ISSUED BY THE 4TH RESPONDENT
Exhibit P4	TRUE COPY OF REVISION PETITION BEARING NO.33928/2015 DATED 17.11.2015
Exhibit5	TRUE COPY OF ORDER DATED 18.02.2016 IN CRL. M.C NO. 7927/2015
Exhibit P6	TRUE COPY OF COMMON JUDGMENT DATED 22.06.2016 IN WP(C) NO.23521/2015 AND W.P(C) NO. 2936/2016
Exhibit P7	TRUE COPY OF G.O(RT) NO.918/2016/AGRI DATED 05.11.2016
Exhibit P8	TRUE COPY OF INTERIM ORDER DATED 22.11.2016 IN W.P.(C) NO. 37240/2016
Exhibit P9	TRUE COPY OF THE PLAINT IN O.S NO.626/2013 FILED BY THE 7TH RESPONDENT BEFORE THE SUB COURT, THRISSUR
Exhibit P10	TRUE COPY OF LETTER DATED 29.06.2016 OF THE 3RD RESPONDENT
Exhibit P11	TRUE COPY OF ORDER DATED 01.08.2016 BEARING NO.L.DIS-10547/2016/B2
Exhibit P12	TRUE COPY OF THE ORDER DATED 21.04.2017 IN APPEAL PETITION NO. 1908(2)/2016/SIC

Karthiyani v. State of Kerala

Case brief

What is this about?

What did the court decide?

Karthiyani v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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