The Kerala High Court dismissed a writ petition challenging the State Information Commissioner's decision not to impose a penalty under the RTI Act. The court held the petitioner's focus should be on the pending civil suit regarding the survey report rather than seeking administrative action against officials.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
MONDAY, THE 16TH DAY OF JANUARY 2023 / 26TH POUSHA, 1944 WP(C) NO.1342 OF 2023
PETITIONER:
KURIAN GEORGE AGED 78 YEARS S/o.T.K.GEORGE, THEKKINKADU NEW HOUSE, AREEPLACHI P.O., (VIA) PUNALUR, KOLLAM DISTRICT, PIN - 691333 BY ADVS.JOHN VARGHESE SREENIVASAN K.
RESPONDENTS:
1 THE STATE INFORMATION COMMISSION, KERALA, PUNNEN ROAD, THIRUVANANTHAPURAM – 695001, REPRESENTED BY ITS SECRETARY.
BY ADVS.SRI.M.AJAY, SC, STATE INFORMATION COMMN SRI.SUNILKUMAR KURIAKOSE, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Operation of the order dated 01.08.2022 Ext.P22 in not taking penal provisions under Section 20(1) of the Right to Information Act against the SPIO, P.Viswambaran, is under challenge on behalf of the petitioner.
(i) There is a dispute between the petitioner, Kurian George, and his sister Annamma George allegedly filed a civil suit bearing No.90 of 2011 in the court of Munsiff, Punalur for injunction. The trial court injuncted the petitioner Kurian George in respect of the suit property by granting status quo. The said order was assailed in this Court vide O.P.(C) No.4159 of 2011 . This Court vide judgment dated 09.04.2012 disposed of the case by issuing directions to both the parties not to commit any act of waste in the suit property, and may not cause any impediment to any of the parties in improving such property at their risk by planting rubber saplings. This Court also issued directions to the Munsiff to expedite the trial of the case and dispose it off at the earliest by providing reasonable opportunity to both sides to lead evidence in support of their respective cases.
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relevant pages showing the distance of alleged encroachment of each stone to his property from the real one. The said information was responded vide communication dated 8.10.2013 that the information was to be sought from the District Survey Superintendent instead of Director.
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aforementioned order before the State Information Commission.
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received on 27.12.2018 to the Secretary to Commission, Office of the State Information Commission that many times the 3rd and 6th respondents approached for inspection of the record, but was vaguely denied and therefore, insisted for imposing the fine of Rs.5,000/- to the then SPIO and the District Survey Superintendent respondent Nos.3 and 6 for not permitting the petitioner to peruse the official record as sought in the application dated 3.10.2013.
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to be kept on record as it was not within the scope of Right to Information Act to make and provide the information requested by the party and those who were unable to do so.
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Information Act is not justified and sustainable as it provided a penalty where the state SPIO without any cause knowingly gave the misleading information. The third respondent instead of granting permission to pursue, gave a misleading information not connected with the required file. Despite the fact that the order Ext.P22 reveal the permission was not granted to the petitioner to peruse the file, punitive action under section 20(2) of the Information Act was sine qua non. The observation that SPIO did not understand the request made by the petitioner in correct perspective would not be a ground for sustaining the action under Section 20(2), is wholly preposterous and illegal. The contents of the information sought was clear and unambiguous. Respondent Nos.3 and 6 intentionally gave the misleading information.
under :
“20 (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
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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: 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: 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. ”
15. On perusal of the same, it is evident that discretion is
conferred upon the State Information Commissioner to impose a fine in case the ingredients of the aforementioned Section are ex facie found. It would be expedient to extract the relevant portion of the impugned order dated 01.08.2022 Ext.P22 whereby the State Information Commissioner did not think it appropriate to initiate action under Section 20(1). The same reads as under :
“6. During the time of hearing the Commission examined in detail the materials raised by the appellant and the respondent P.Viswambaran and other related documents. During the time of he willing the petitioner demanded. That punitive action should be taken against P.Viswambaran who is the SPIO as there was a failure on the part of him. Mr.P.Viswambaran answered to the question why the petitioner was not given an opportunity to inspect the file. That, he would have given, if he asked for it. The file for inspection as there were notes in the file. But on perusal on Kurian George's RTI application dated 3.10.13 it is seen that he requested to inspect the file and also the information regarding
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encroaching his boundary and erected stones. The Commission is satisfied that the demand in the RTI application was not clearly understood. The concerned file was directly called and examined by the Commission from the office of the opposite party. On perusal of the file it does not appear. That there was only deliberate or conscious attempt on the part of Mr.P.Viswambaran to conceal the information. Therefore, the petitioner demand for taking punitive action land be taken against Mr.P.Viswambaran who is the SPIO under Section 20(1) of Right to Information Act. However, the petitioner Kurian George has been requested to given an opportunity to see the relevant file by his application submitted on 20.07.2022. In these circumstances, the Commission directs that within 10 days of receipt of this order, the District Survey Superintendent of Kollam shall be given an opportunity to inspect the file requested by the petitioner Mr.Kurian George. For that a copy of this order should be send to the District Survey Superintendent of Kollam by the Secretary of the Commission.”
16. It appears that the petitioner against the survey report
Ext.P4 dated 10.06.2013 extracted herein below, availed the remedy of appeal:
“Survey 4-495/13
District Survey Superintendent Collectorate, Kollam
Collectorate, Kollam
Date 10.06.2013
Department of Survey and Land Records Office of the Director Vazhuthacadu, Thiruvananthapuram
Sir,
Subject : Relating to property in block No.33 in Anchal Village, Pathanapuram Taluk. Ref: (1) Application submitted by Kurian George, Thekinkadu new house
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areeplachy punalur (2) Your reminder letter dated 14.05.13
Your attention is kindly invited to the reference. On 14.5.13, Sri.Kurian George was present in the place for spot inspection of the property and other parties did not appear. The notice sent to the respondent were returned because the address was not correct. Therefore, the parties will have to be once again given a notice and a hearing will be held and further action will be taken.
I am informing you that, regarding the measurements conducted in the field it was found that only a resurvey stone (old stone only) is sin proper place, and fence stones have been concreted on the sides of the re-determined boundary and outside the Bend measurement, the stones have been placed differently from the measurement.
The fate of the appeal has not been disclosed to this Court. This is an attempt to mislead this Court for the reason that the entire focus of the petitioner ought to have been in pursuing the appeal before the Appellate Authority and was not prevented to summon the record and find whether the report was correct or not. In my view, the entire money and energy has been wasted in blaming respondent Nos.3 and 6 as during the entire process, the petitioner developed some kind of rancour against respondent Nos.3 and 6.
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focusing on the inspection and imposition of fine. It is a settled law that if the Appellate Authority finds the survey report to be incorrect it can always be set aside. I do not find any justification in setting aside the part of the order Ext.P22 whereby the State Information Commissioner did not deem it appropriate to take an action against respondent Nos.3 and 6 under Section 20 of the Right to Information Act, particularly when the information sought in the application under the RTI Act has already been acceded to.
The Writ Petition sans merit, accordingly dismissed.
Sd/AMIT RAWAL JUDGE
csl
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APPENDIX OF WP(C) 1342/2023
PETITIONER'S EXHIBITS
| Exhibit P-1 | TRUE COPY OF THE JUDGMENT DATED 09-04-2012 IN O.P.(C)NO.4159/2011 OF THIS HON'BLE COURT |
|---|---|
| Exhibit P-2 | TRUE COPY OF THE ORDER DATED 18-01-2016 ISSUED BY THE KERALA STATE HUMAN RIGHTS COMMISSION |
| Exhibit P-2 | ENGLISH TRANSLATION OF EXHIBIT P-2 |
| Exhibit P-2(a) | TRUE COPY OF THE ORDER DATED 19-02-2016 ISSUED BY THE KERALA STATE HUMAN RIGHTS COMMISSION WITH ENGLISH TRANSLATION |
| Exhibit P-2(b) | TRUE COPY OF THE ORDER DATED 25-05-2016 ISSUED BY THE KERALA HUMAN RIGHTS COMMISSION WITH ENGLISH TRANSLATION |
| Exhibit P-2(c) | TRUE COPY OF THE ORDER DATED 20-06-2016 ISSUED BY THE KERALA STATE HUMAN RIGHTS COMMISSION WITH ENGLISH TRANSLATION |
| Exhibit P-3 | TRUE COPY OF THE APPEAL SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 31-12-2012 |
| Exhibit P-4 | TRUE COPY OF THE REPORT DATED 10-06-2013 SUBMITTED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT WITH ENGLISH TRANSLATION |
| Exhibit P-5 | TRUE COPY OF THE PETITION DATED 03-10- 2013 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT |
| Exhibit P-6 | TRUE COPY OF THE LETTER DATED 08-10-2013 ISSUED BY THE STATE PUBLIC INFORMATION OFFICER OF THE 2ND RESPONDENT WITH ENGLISH TRANSLATION |
| Exhibit P-7 | TRUE COPY OF THE APPEAL DATED 14-10-2013 SUBMITTED BY THE PETITIONER BEFORE THE |
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4TH RESPONDENT
| Exhibit P-8 | TRUE COPY OF THE LETTER DATED 29-10-2013 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER WITH ENGLISH TRANSLATION |
|---|---|
| Exhibit P-9 | TRUE COPY OF THE LETTER DATGED 27-11-2013 ISSUED BY THE 3RD RESPONDENT WITH ENGLISH TRANSLATION |
| Exhibit P-10 | TRUE COPY OF THE SECOND APPEAL DATED 03-07-2014 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT |
| Exhibit P-11 | TRUE COPY OF THE ORDER DATED 04-02-2017 ISSUED BY THE 1ST RESPONDENT |
| Exhibit P-12 | TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 31-03-2017 |
| Exhibit P-13 | TRUE COPY OF THE ORDER DATED 25-04-2017 ISSUED BY THE 1ST RESPONDENT |
| Exhibit P-13 | ENGLISH TRANSLATION OF EXHIBIT P-13 |
| Exhibit P-14 | TRUE COPY OF THE LETTER DATED 29-11-2018 ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT |
| Exhibit P-15 | TRUE COPY OF THE REPLY DATED 18-12-2018 SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY OF THE 1ST RESPONDENT |
| Exhibit P-16 | TRUE COPY OF THE OBJECTION SUBMITTED BY THE 6TH RESPONDENT BEFORE THE 1ST RESPONDENT DATED 01-06-2019 WITH ENGLISH TRANSLATION |
| Exhibit P-17 | TRUE COPY OF THE FINAL ORDER DATED 07-12- 2019 ISSUED BY THE 1ST RESPONDENT WITH ENGLISH TRANSLATION |
| Exhibit P-18 | TRUE COPY OF THE JUDGMENT DATED 24-05- 2022 IN W.P.(C)NO.10292/2022 OF THIS COURT |
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| Exhibit | P-19 TRUE COPY OF THE NOTICE DATED 16-07-2022 ISSUED BY THE OFFICE OF THE 1ST RESPONDENT |
|---|---|
| Exhibit | P-20 TRUE COPY OF THE WRITTEN ARGUMENT NOTE DATED 20.07.2022 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT |
| Exhibit | P-21 TRUE COPY OF THE OBJECTION SUBMITTED BY THE 6TH RESPONDENT DATED 23-07-2022 BEFORE THE 1ST RESPONDENT WITH ENGLISH TRANSLATION |
| Exhibit | P-22 TRUE COPY OF THE ORDER IN A.P. NO.1703(1)/2014/SIC (FILE NO. 10311/SIC- G4/2014) DATED 01-08-2022 ISSUED BY THE 1ST RESPONDENT WITH ENGLISH TRANSLATION |
3 issues framed by the court
Whether the State Information Commissioner erred in not imposing a penalty under Section 20(1) of the RTI Act for alleged misleading information,
Whether the petitioner had a desire for punitive action against the State Public Information Officer for failure to permit inspection of a survey file
Whether the refusal to impose a penalty is justified given the disputed nature of the underlying land survey report
1 provisions across 1 enactments
Kurian George
The State Information Commission, Kerala
Director of Survey & Land Records
District Survey Superintendent & State Public Information Officer, Collectorate, Kollam
Deputy Director and Appellate Authority Survey Directorate
Deputy Director and Appellate Authority Survey and Land Records, Kollam
Amit Rawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
