Hakeem Parwaz Uloom Azmi vs Central Information Commission & ...
2017 Latest Caselaw 4745 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 
Reserved on 21.8.2017
 
Delivered On 21.9.2017
 
Case :- WRIT - C No. - 55041 of 2015
 
Petitioner :- Hakeem Parwaz Uloom Azmi
 
Respondent :- Central Information Commission & 2 Others
 
Counsel for Petitioner :- Hakeem Parwaz Uloom Azmi,In Person
 
Counsel for Respondent :- A.S.G.I.,Deepak Mishra,S.C.
 
Hon'ble Bharati Sapru,J.

Hon'ble Mrs. Sangeeta Chandra,J.

(Delivered by Ms. Hon'ble Sangeeta Chandra, J.)

1. This writ petition has been filed making the following prayers:-

"(I) to issue a writ, order or direction in the nature of certiorari quashing the order dated 31.12.2014 passed by the Central Public Information Officer (Annexure No.7 to the writ petition) and the order dated 23.6.2015 passed by the appellate authority of the Ministry of Finance, Department of Financial Services, Government of India, New Delhi i.e. respondent no.3 (Annexure No.12 to the writ petition);

(II) to issue a writ, order or direction in the nature of mandamus commanding and directing the respondent nos. 2 & 3 to comply with the order dated 15.12.2014 passed by the Central Information Commissioner within a reasonable period as specified by this Hon'ble Court and provide requisite information in true and tabular format to the petitioner;

(III) to issue a writ, order or direction in the nature of mandamus commanding and directing the respondent no. 1 to decide the representation dated 5.1.2015 filed by the petitioner (Annexure No.9 to the writ petition) and impose the penalty upon the respondent no.3 under Section 19(8)(b) and 20 of the Right to Information Act, 2005.

(IV) to issue a writ, order or direction in the nature of mandamus commanding and directing the respondent no.2 to decide the appeal / representation dated 9.1.2015 and 5.6.2015 (Annexure No.8 and Annexure No.11 to the writ petition respectively) filed by the petitioner in compliance of the order dated 15.12.2014 passed by the Central Information Commissioner and the order dated 28.5.2015 passed by this Hon'ble Court in Writ Petition No. 32690 of 2015 (Hakeem Parwaz Uloom Vs. Central Information Commission & others)"

2. Heard the petitioner in person.

3. Learned standing counsel for the respondents is not present even in the revised call.

4. We have therefore perused the counter affidavit filed on behalf of the respondent nos. 2 & 3. The petitioner in person had initially filed an application under Right to Information Act before the Central Public Information Officer / Assistant Director (Raj Bhasha) Department of Financial Services, New Delhi on 27.8.2013 seeking information with regard to the policy of the Government of India for promoting the use of Urdu language in five States located in Region-A (these States have Hindi as their Official Language) on Boards, Sign-boards, Name-plates and Directional Signs and for the use of Urdu language as a third language in terms of the various Government Orders issued on 25.3.1968, 18.6.1977, 26.2.1986 and 7.4.2011. The petitioner wanted to know whether the Department of Finance, which had issued a circular directing the other Departments to Publish Income Tax Returns Forms, Railway Reservation Forms, Life Insurance Policy Forms, Money order Forms and other forms of general importance in Urdu language also was being complied with by the Departments in question viz. the Postal Department, the Railways, the Banks and the Insurance Companies, Telecommunications Department and the Income Tax Department. (The application filed by the petitioner has been annexed as Annexure-1 to the writ petition.)

5. The Central Public Information Officer gave a reply on 27.8.2013 to the petitioner in pursuance of the said RTI application informing him that he had referred the matter to the Ministry of Human Resources Development and Department of Personal and Training.

6. The petitioner waited for sometime and thereafter filed First Appeal on 5.9.2013 before the First Appellate Authority, Ministry of Finance on 14.10.2013, the Appellate Authority rejected the appeal and therefore the petitioner preferred a Second Appeal before the respondent no.1. The respondent no.1 by an order dated 15.12.2014 directed the Public Information Officer, Department of Financial Services to provide information to the petitioner by a reasoned and speaking order.

7. The Public Information Officer, Department of Finance thereafter sent a letter dated 31.12.2014, which has been filed by the petitioner as Annexure-7 to the writ petition, wherein the Central Public Information Officer has informed that with regard to point nos. 1, 2, 5, 9, 11, 12 & 13, no information was available, and with regard to point nos. 6, 7 & 8, the information asked for cannot be provided as the same is interrogatory in nature.

8. The petitioner moved a representation against the said letter dated 31.12.2014 before the respondent no.1 and almost simultaneously filed a representation on 9.1.2015 before the First Appellate Authority.

9. When nothing was done, the petitioner filed Writ Petition No. 32690 of 2015 which was disposed of on 28.5.2015 in the following manner :-

"It is submitted that pursuant to the directions issued by the Central Information Commission in the Second Appeal filed by the petitioner, certain information has been furnished to the petitioner by the Central Public Information Officer. According to the petitioner, this information is incomplete.

Sri R.K. Jaiswal has appeared for respondent Nos.1, 2 and 3.

If that be so, it is for the petitioner to file an appeal against the aforesaid order under the provisions of the Right to Information Act, 2005.

Leaving it open to the petitioner to do, we dispose of this petition."

10. The petitioner preferred a First Appeal on 5.6.2015, which was decided on 23.6.2015 by the First Appellate Authority / Joint Director (Raj Bhasha) to the effect that he had examined the reply dated 31.12.2014 given by the Central Public Information Officer to the petitioner and had found to it proper and correct.

11. Annexing the Appeal dated 5.6.2015 and reply thereof dated 26.3.2015, the petitioner moved a modification application on 11.7.2015 before this Court which has been rejected on 5.8.2015 by the following order :-

"Order on Civil Misc. Modification Application No. 234235 of 2015

The Modification Application is misconceived as the First Appellate Authority has passed an order on 23 June 2015 that the information furnished by the Central Public Information Officer is correct.

Petitioner may, if so advised, challenge the said order in appropriate proceedings.

The Modification Application is, accordingly, rejected with the aforesaid observation."

12. The petitioner has again filed this writ petition praying for similar relief i.e. for the enforcement of the order passed by the respondent no.1 on 15.12.2014 and for issuance of a mandamus to the respondents to decide the various representations made by him.

13. The respondent nos. 2 & 3 in their counter affidavit have also stated that for similar relief, the petitioner had earlier filed Writ Petition No. 32690 of 2015, which was dismissed by this Court and second writ petition for the same cause of action is not maintainable. The second ground taken by the respondents for objecting to the said writ petition is that a statutory remedy is available under RTI Act under Section 18 or Section 19 of the said Act.

14. Sections 18 of the RTI Act is being quoted herein below:-

"18. Powers and functions of Information Commission.-- (1) Subject to the provisions of this Act, it shall be the duty of the Central Information Commission or State Information Commission as the case may be to receive and inquire into a complaint from any person,--

(a) who has been unable to submit a request to a Central Public Information Officer, or State Public Information Officer as the case may be, either by reason that no such officer has been appointed under this Act, or because the Central Assistant Public Information Officer or State Assistant Public Information Officer, as the case may be, has refused to accept his or her application for information or appeal under this Act for forwarding the same to the Central Public Information Officer or State Public Information Officer or Senior Officer specified in sub‑section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be;

(b) who has been refused access to any information requested under this Act;

(c) who has not been given a response to a request for information or access to information within the time limits specified under this Act;

(d) who has been required to pay an amount of fee which he or she considers unreasonable;

(e) who believes that he or she has been given incomplete, misleading or false information under this Act; and

(f) in respect of any other matter relating to requesting or obtaining access to records under this Act.

(2) Where the Central Information Commission or State Information Commission, as the case may be, is satisfied that there are reasonable grounds to inquire into the matter, it may initiate an inquiry in respect thereof.

(3) The Central Information Commission or State Information Commission, as the case may be shall, while inquiring into any matter under this section, have the same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908, in respect of the following matters, namely:--

(a) summoning and enforcing the attendance of persons and compel them to give oral or written evidence on oath and to produce the documents or things;

(b) requiring the discovery and inspection of documents;

(c) receiving evidence on affidavit;

(d) requisitioning any public record or copies thereof from any court or office;

(e) issuing summons for examination of witnesses or documents; and

(f) any other matter which may be prescribed.

(4) Notwithstanding anything inconsistent contained in any other Act of Parliament, or the State Legislature, as the case may be, the Central Information Commission or the State Information Commission, as the case may be, may, during the inquiry of any complaint under this Act, examine any record to which this Act applies which is under the control of the public authority, and no such record may be withheld from it on any grounds."

(emphasis supplied)

15. It has been observed by the Hon'ble Supreme Court in its judgment rendered in the case of Chief Information Commissioner Vs. State of Manipur 2011 (15) SCC 1 in paragraphs 31 & 32 as follows:-

"31. We uphold the said contention and do not find any error in the impugned judgment of the High court whereby it has been held that the Commissioner while entertaining a complaint under Section 18 of the said Act has no jurisdiction to pass an order providing for access to the information.

32. In the facts of the case, the appellant after having applied for information under Section 6 and then not having received any reply thereto, it must be deemed that he has been refused the information. The said situation is covered by Section 7 of the Act. The remedy for such a person who has been refused the information is provided under Section 19 of the Act. A reading of Section 19(1) of the Act makes it clear.

Section 19(1) of the Act is set out below:-

"19. Appeal. - (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.

16. Not only does the petitioner have remedy of filing a complaint under Section 18 of the Act or filing a Second Appeal under Section 19 of the Act, but the Commission has the power to get its orders executed by way of imposing penalties under Section 20 - Section 20 is being quoted herein below:-

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:

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.

(2) 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 and persistently, failed 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 recommend for disciplinary action against the Central Public Information Officer or the State Public Information Officer, as the case may be, under the service rules applicable to him."

(emphasis supplied)

17. The Hon'ble Supreme Court has further held in the case of Manohar Vs. State of Maharashtra 2012 (13) SCC 13 in paragraph 33 as follows:-

"33. All the attributable defaults of a Central or State Public Information Officer have to be without any reasonable cause and persistently. In other words, besides finding that any of the stated defaults have been committed by such officer, the Commission has to further record its opinion that such default in relation to receiving of an application or not furnishing the information within the specified time was committed persistently and without a reasonable cause. Use of such language by the Legislature clearly shows that the expression ''shall' appearing before ''recommend' has to be read and construed as ''may'. There could be cases where there is reasonable cause shown and the officer is able to demonstrate that there was no persistent default on his part either in receiving the application or furnishing the requested information. In such circumstances, the law does not require recommendation for disciplinary proceedings to be made. It is not the legislative mandate that irrespective of the facts and circumstances of a given case, whether reasonable cause is shown or not, the Commission must recommend disciplinary action merely because the application was not responded to within 30 days. Every case has to be examined on its own facts. We would hasten to add here that wherever reasonable cause is not shown to the satisfaction of the Commission and the Commission is of the opinion that there is default in terms of the Section it must send the recommendation for disciplinary action in accordance with law to the concerned authority. In such circumstances, it will have no choice but to send recommendatory report. The burden of forming an opinion in accordance with the provisions of Section 20(2) and principles of natural justice lies upon the Commission."

18. The petitioner, who appeared in person before us, has pleaded that he is not aware of the finer nuances of the law and its procedural aspects and therefore he may not be relegated to statutory remedy available to him under Section 18 or Section 19 of the RTI.

19. We have perused the record of the writ petition and we find that the petitioner has repeatedly approached the respondent no.1 with various applications and he is well versed with the procedure of filing complaint / appeal before the respondent no.1.

20. This Court therefore does not find it appropriate to entertain this writ petition only on the ground that the petitioner will have to suffer hardship in approaching the respondent no.1 again. Moreso, in view of law laid down by the Hon'ble Supreme Court in the case of Kanhaiyalal Lalchand Sachdev & others Vs. State of Maharashtra & others (Criminal Appeal No. 338 - 340 of 2011), wherein the Hon'ble Supreme Court has observed in paragraph 21 as under :-

"21 .......... it is well settled that ordinary relief under Articles 226 / 227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person ............"

21. The petitioner has repeatedly referred to the reply dated 31.12.2014 issued by the Public Information Officer and to his application dated 29.7.2013.

22. We have perused the contents of the application dated 29.7.2013 and we find that the petitioner has asked for copies of forms published in Urdu language issued by Various Government Departments / Public Sector Corporations / Banks etc. and for enunciation of steps that have been taken for compliance of various circulars issued by the Central Government with regard to the promotion of Urdu language as a third language in Hindi speaking states. The Hon'ble Supreme Court in the case of CBSE & another Vs. Aditya Bandopadhyay & others 2011 (8) SCC 497 has observed in paragraph 63 as under:-

63. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing. This is clear from a combined reading of Section 3 and the definitions of 'information' and 'right to information' under clauses (f) and (j) of Section 2 of the Act. If a public authority has any information in the form of data or analysesd data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions in Section 8 of the Act. But where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non- available information and then furnish it to an applicant. A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide 'advice' or 'opinion' to an applicant, nor required to obtain and furnish any 'opinion' or 'advice' to an applicant. The reference to 'opinion' or 'advice' in the definition of 'information' in Section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act."

(emphasis supplied)

23. Consequently for the reasons mentioned herein above, the writ petition is dismissed as devoid of merits.

24. However, it is left open for the petitioner to approach the respondent no.1 again as per remedy available to him under the Statute.

Order Date :- 21.9.2017

Arif