IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
FRIDAY, THE 24TH DAY OF JUNE 2022 / 3RD ASHADA, 1944
WP(C) NO. 21205 OF 2012
PETITIONER:
B.S.JAYAKUMAR
AGED 55 YEARS
S/O.BHASKARAN NAIR,
SUPERINTENDING ENGINEER,
THRISSUR CORPORATION,
THRISSUR
BY ADVS.
SRI.K.K.CHANDRAN PILLAI (SR.)
SRI.ARUN ANTONY
SRI.R.ANAS MUHAMMED SHAMNAD
SRI.BOBBY THOMAS
SRI.A.S.SAJUSH PAUL
SRI.THOMAS JAMES MUNDACKAL
RESPONDENTS:
1 THE STATE CHIEF INFORMATION COMMISSIONER
OFFICE OF THE CHIEF INFORMATION COMMISSIONER,
THIRUVANANTHAPURAM-695001
2 THE SECRETARY
THIRUVANANTHAPURAM CORPORATION,
THIRUVANANTHAPURAM-695001
3 MR.S.SREEKANTHAN TC 401087 PGRA -23
PANCHAMI GARDENS
JAGATHY,
THIRUVANANTHAPURAM-695014
4 THE STATE OF KERALA
REP.BY THE CHIEF SECRETARY,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001
WP(C)No. 21205 of 2012
2
5 THE THRISSUR CORPORATION
REP.BY ITS SECRETARY,
THRISSUR-680001
BY ADVS.
SRI.P.K.MANOJKUMAR
SRI.N.NANDAKUMARA MENON SR.
SRI. SANTHOSH P.PODUVAL, SC, THRISSUR
CORPORATION
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 20.06.2022, THE COURT ON 24.06.2022 DELIVERED
THE FOLLOWING:
WP(C)No. 21205 of 2012
3
MOHAMMED NIAS. C.P.,J
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WP(C)No. 21205 of 2012
------------------------
Dated this the 24th day of June, 2022
JUDGMENT
The petitioner while working as the Superintending Engineer in the second respondent Corporation, also acting as the State Public Information Officer under the Right to Information Act, 2005 (hereinafter referred to as 'the Act') received an application dated 23.03.2011 (Ext.P1) from the third respondent herein asking whether permission is required for putting up a church and whether any permission has been given for putting up a church (Alice Devadas Memorial CSI Church) at Jagathy, Thiruvananthapuram District, close to the petitioner's residence and if granted, copies of the same were sought. Since no information was furnished by the third respondent to the petitioner, he moved the first appellate authority on 25.04.2011 (Ext.P2). Notice of the said appeal dated 28.05.2011 was served on the petitioner on 31.05.2011 and the petitioner gave a reply dated 6.5.2011 answering the first question and stating that since the building in question is more than 15 years old, it is not possible to find out whether permit for the construction activities had been granted and that a reply would be sent after obtaining the requisite information from the records.
WP(C)No. 21205 of 2012 4
2. The third respondent, the applicant not satisfied with the reply, moved the State Information Commission. On receipt of notice in the second appeal, the Corporation gave a reply stating that there was a direction given to the overseer on 30.03.2011 for conducting a physical inspection of the church in question, but since it was remaining closed, details could not be got and therefore on enquiry with the neighours, information was got and a reply was given to the applicant as aforesaid. The petitioner was transferred to Thrissur Corporation on 16.7.2011 and the successor in office had given a reply to the first respondent-Commissioner on 12.05.2011 on similar lines as Ext.P6 reply. The first respondent considered the appeal on 19.4.2012 and on the same day the Corporation had furnished a reply to the third respondent stating that from the registers in the Corporation, it is seen that no permission was granted for constructing a church and that no number has been assigned to the building in question and thus a reply was delivered to the petitioner on 20.04.2011.
3. Earlier the successor in office of the petitioner had given a reply as Ext.P9 before the Commissioner pointing out that he had taken charge on 3.10.2011 and that there were several works that had to be completed before March 31st of the said year and the Corporation had more than 100 Wards and because of the pressure of work and also the work of giving replies in the cases pending before WP(C)No. 21205 of 2012 5 the High Court, Ombudsman, Tribunals, the Human Right Commission, etc., that there was delay in responding to the application of the third respondent. The Commission issued yet another notice on 28.4.2012 holding that there was delay in giving a reply warranting action under Section 20 of the Act and explanation was sought for from the petitioner. The petitioner responded to Ext.P1 stating that though the petitioner had forwarded the application immediately after its receipt, the physical inspection took some time as the church was closed and the details had to be collected from the neighbour's and the fact that there was no documents available with respect to the construction with the Corporation, was intimated to the third respondent on 10.05.2011. It was specifically stated in the reply that it was for want of documents at the relevant time that resulted in the delay in giving to the reply to the information sought.
4. By Ext.P12 the State Information Commissioner passed an order holding that there is a delay of almost one year and that the reasons given by the petitioner herein that there was delay in getting information from the officer, who was asked to collect documents and that no documents were available with the Corporation office pertaining to the question sought, were not accepted. Rejecting such contentions, a penalty of an amount of Rs.10,000/- was imposed by Ext.P12. The petitioner submits that he WP(C)No. 21205 of 2012 6 came to know about the same only when he received notice from the department. It is also submitted that he was not heard before passing Ext.P12 as no chance of personal hearing was given after he submitted a reply (Ext.P11). The petitioner therefore challenges Exts.P12 and P13.
5. I have heard Sri.K.K.Chandran Pillai, the learned senior counsel for the petitioner, Sri.M.Ajay, the learned counsel for the first respondent and Sri.N.Nanda Kumara Menon, the learned senior counsel for the second respondent-Corporation.
6. The learned senior counsel argues that he had on receipt of Ext.P1 application sought information from the person concerned, invoking Section 5(4) of the Act. The application was received on 24.3.2011 and this was done on 30.03.2011 itself. The learned senior counsel further contends that since no particular details were given about the church in question it was difficult to find out from any register in the absence of any number or specific details to make a search and the delay caused was not deliberate. He also cited pressure of work as a reason for not sending a reply within time and further contends that he was transferred to Thrissur Corporation on 16.7.2011, before which time itself Ext.P4 was sent on 6.5.2011. He submits that since a reply had already been given under Ext.P4 it cannot be said that the petitioner had not responded to the question WP(C)No. 21205 of 2012 7 and the Act does not speak of the manner in which a reply has to be given. It is his further argument that since no deliberate act occurred on the part of the petitioner and it was only a case of non-availability of register at the relevant time that the delay was caused. The learned senior counsel also contended that physical inspection had to be carried out for want of specific details and all these reasons contributed to the delay.
7. Sri.M.Ajay, the learned counsel appearing for the State Information Commission submits that there is no case anywhere on the side of the petitioner that the files were missing and the explanation that for want of details, physical inspection had to be conducted cannot be accepted at all, since there were no complicated questions that were put and even the first reply came only after the filing of the appeal before the first appellate authority. Learned counsel criticizes the act of the petitioner in issuing Ext.P3, where questions were put back to the applicant which should not have been done. He also argues that notice was issued proposing penalty and it was after receiving a reply from the petitioner that Ext.P12 order was passed. The reasons furnished by the petitioner were not found to be acceptable and despite the same leniency was shown and only Rs.10,000/- was imposed when as a matter of fact the maximum penalty of Rs.25,000/- ought to have been mulcted. WP(C)No. 21205 of 2012 8
8. After considering the rival contentions and perusing the documents, I find considerable force in the arguments of Sri.M.Ajay that the reasons for the delay are not all that convincing. It is pertinent to point out that to answer the first query sought for by the third respondent herein, no time at all was needed as the question was whether permission was required for constructing a church. Even for the second query viz., whether any permission has been granted to the church in question and if so to serve copies of the same, the petitioner should not have taken as much time as he ultimately took to reply. The Corporation is bound to have in its custody the details, registers showing the grant of permits, sanctions, occupancy certificate, numbering of buildings. The delay in furnishing reply defeat the very purpose for which the Act is brought in.
9. Though I notice that the reasons for not giving the reply in time are not all that satisfactory, considering the fact that the petitioner had sought the aid of other staff in the Corporation for giving a reply, shortly, after the receipt of the questions and the fact that he was transferred to Thrissur Corporation on 16.7.2011 and that information was furnished to the third respondent on the same day on which the State Information Commissioner directed. I also notice that it will be difficult for any Corporation or local body to find out whether a permission was granted to a particular building from WP(C)No. 21205 of 2012 9 the registers per se as neither the year of completion nor any relevant number or any details specifically pointing to the exact location of the property were shown in the application except stating that it was a church near to his residence, the address of which was shown by the petitioner. I also take into account the fact that the petitioner had since retired from service. As a measure of leniency and indulgence and going by the requirements to be met for imposing a penalty, I deem it fit to set aside that part of the order which directs payment of Rs.10,000/- as penalty.
9. For the reasons mentioned above, I set aside Ext.P12 and P13 and I hold that the imposing of penalty of Rs.10,000/- is not warranted in the peculiar facts and circumstances of the case. Accordingly, I allow the writ petition and quash Exts.P12 and P13 orders in so far it directs the petitioner to pay penalty amount of Rs.10,000/-.
The writ petition is allowed as above.
Sd/-
MOHAMMED NIAS. C.P.,JUDGE.
dlk 21.6.22 WP(C)No. 21205 of 2012 10 APPENDIX OF WP(C) 21205/2012 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF APPLICATION FILED BY THE 3RD RESPONDENT BEFORE THE 2ND RESPONDENT DATED 23.03.2011 Exhibit P2 TRUE COPY THE APPEAL FILED BEFORE THE SECRETARY OF THE 2ND RESPONDENT DATED 25.4.2011 Exhibit P3 TRUE COPY OF THE NOTE GIVEN TO THE APPELLATE AUTHORITY DATED 28.5.2011 BY THE PETITIONER.
Exhibit P4 TRUE COPY OF THE REPLY GIVEN BY THE PETITIONER DATED 6.5.2011 TO THE 3RD RESPONDENT.
EXHIBIT P5 TRUE COPY OF REPLY DATED 25.6.2011 GIVEN IST RESPONDENT BY THE PETITIONER.
EXHIBIT P6 TRUE COPY OF THE REPORT SUBMITTED BY THE SECRETARY OF THE 2ND RESPONDENT DATED 31.12.2011 TO THE IST RESPONDENT.
EXHIBIT P7 TRUE COPY OF ANOTHER REPORT SUBMITTED BEFORE THE IST RESPONDENT BY THE SECRETARY OF THE 2ND RESPONDENT DATED 12.4.2012.
EXHIBIT P8 TRUE COPY OF ANOTHER REPORT DATED 19.4.2012 SUBMITTED BEFORE THE IST RESPONDENT BY THE SECRETARY OF THE 2ND RESPONDENT.
EXHIBIT P9 TRUE COPY OF A REPORT DATED 19.4.2012 SUBMITTED BEFORE THE IST RESPONDENT BY THE SECRETARY OF THE 2ND RESPONDENT SHOWING THE REASON FOR DELAY IN REPLY.
EXHIBIT P10 TRUE COPY OF SHOW CAUSE NOTICE ISSUED TO THE PETITIONER DATED 28.4.2012 EXHIBIT P11 TRUE COPY OF COVERING LETTER DATED 15.5.2012 FOR SENDING EXT.P11(A) TO THE IST RESPONDNET.
EXHIBIT P11(A) TRUE COPY OF THE EXPLANATION SUBMITTED WP(C)No. 21205 of 2012 11 BEFORE THE IST RESPONDENT BY THE PETITIONER.
EXHIBIT P12 TRUE COPY OF THE ORDER ISSUED BY THE IST RESPONDENT DATED 31.5.2012 EXHIBIT P13 TRUE COPY OF COMMUNICATION DATED 2.7.2012 RECEIVED FROM THE 5TH RESPONDENT.
EXHIBIT 13(A) TRUE COPY OFLETTER DATED 21.6.2012 RECEIVED BY THE PETITIONER ALONG WITH EXT.P13 EXHIBIT P14 TRUE COPY OF LETTER ADDRESSED TO THE 5TH RESPONDENT DATED NIL.