Bombay High Court
Dr. Hedgewar Seva Samiti vs Purushottam on 19 December, 2013
Bench: R.V. Ghuge
(1)
W.P. No.4590/2011
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4590 OF 2011
1. Dr. Hedgewar Seva Samiti,
Conducted Agricultural Science Centre,
Kolada,Dist. Nandurbar,
Through Secretary and
Public Infomation Officer,
Lalit s/o Balkrushna Pathak,
Age : 60 years, Occu. Retired,
R/o as above
2.
Dr. Hedgewar Seva Samiti,
Conducted Agricultural Science Centre,
Kolada,Dist. Nandurbar,
Through Chairman and
Public Infomation Appellate Officer,
Krushnadas s/o Kashigar Patil,
Age : 50 years, Occu. Agril.,
R/o as above ..PETITIONERS
VERSUS
1. Purushottam S/O Ramdas Joshi,
Age 50 years, Occu. Nil,
R/o 6-B, Shivshankar Vasahat,
Chittod Road, Dhule
2. State of Maharashtra,
Through State Information Commission,
Nashik, Bench Nashik ..RESPONDENTS
Mr L.V. Sangit, Advocate for the petitioners;
Mr A.S. Sawant, Advocate for respondent no.1;
Mr N.B. Patil, A.G.P. for respondent no.2
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(2)
W.P. No.4590/2011
CORAM : RAVINDRA V. GHUGE, J.
DATE : 19th December, 2013
ORAL JUDGMENT:
1. Heard. Rule. Rule made returnable forthwith and heard finally by
consent of Shri L.V. Sangit, learned Advocate for the petitioners; Shri A.S.
Sawant, learned Advocate for respondent no.1 and Shri N.B. Patil, learned
A.G.P. for respondent no.2.
2.
The petitioners by this petition challenge the impugned order
passed by the State Information Commission, Bench at Nashik, in Appeal
No.2010/RMA/CR/1937/2009, dated 21st December, 2010.
3. After hearing the learned Advocates for the parties the controversy
boils down to only two issues for the present, which are as follows :-
(a) Whether the petitioners are covered under section 2 (h) (i) so
as to be amenable to the jurisdiction under the Right to
Information Act, 2005 ?
(b) Whether the first proviso to section 20 (1) of the said Act has
been duly followed before penalty was imposed on the
petitioners ?
W.P. No.4590/2011
4. Shri Sangit draws my attention to section 2 (h) (i) which reads
thus :-
"2. Definitions - In this Act, unless the context otherwise requires, -
(a) to (g) ..........
(h) "public authority" means any authority or body or institution of
self-government established or constituted -
(a) to (c).......
(d) by notification issued or order made by the appropriate
Government,
and includes any -
(i) body owned, controlled or substantially financed."
5. The learned Advocate submits that though on the one hand the
petitioners have appointed an Information Officer and have also created
an appellate authority, they still would not be covered by the Right to
Information Act since there is no State funding by which it could be
covered under the definition under section 2 (h) (i). On the other hand,
having supplied information to the best of its ability and having heard the
appeal of the respondent through its appellate authority, it ought not to be
taken as a presumption that the said Act is applicable to the petitioner
trust, inasmuch as it ought not to be construed that the petitioners have
acquiesced their right to raise a legal issue as regards applicability of the
Right to Information Act. It is further contended that the impugned order is
W.P. No.4590/2011
passed in one stroke while considering the claim of the respondent and
penalty was straight away imposed without hearing the petitioners.
6. Mr Sawant, learned Advocate has filed affidavit-in-reply on behalf
of respondent no.1. He contends in paragraph 3 as follows :-
"I say and submit that for the first time in the present Writ Petition, it
is contended by the petitioners that petitioner trust is registered
under the provisions of BPT Act and not funded by the
Government. Factually, the petitioner trust runs Agricultural
Science Centre. The Ministry of Agricultural of Central Government
had given funding to the said Agricultural Science Centre for the
purpose of research and education. Undisputedly, the Central
Government of India, Ministry of Agricultural had given finance to
Agricultural Science Centre. Therefore, the contention raised by
the petitioners that no fund was made available by the Government
is fundamentally improper. I say and submit that for the first time
said contention was raised by the petitioners and prior to that at no
point of time said contention was raised by the petitioners. "
I leave this contentious issue between the parties open for the lower
authority to decide. The parties may agitate this issue before the State
Information Commission.
7. Shri Sangit has then drawn my attention to the first proviso to
section 20 (1), which reads as under :-
"Provided that the Central Public Information Officer or the State
Public Information Officer, as the case may be, shall be given a
W.P. No.4590/2011
reasonable opportunity of being heard before any penalty is
imposed on him."
According to him, opportunity of being heard before any penalty was
imposed, was not given to the petitioners.
8. Shri Sawant, the learned Advocate for respondent no.1 submits that
the petitioners have misconstrued the meaning and import of the proviso.
According to him, when the petitioners were before the State Information
Commission
facing a challenge from the respondents, the petitioners
were aware as to the effects of the said appeal if it was allowed. It is a
creation of the Statute that penalty shall be at the rate of Rs.250/- per day,
in the event the authority comes to a conclusion that information was not
supplied or was inappropriately or inaccurately supplied. He, therefore,
strenuously submits that when the petitioners were aware of these effects
if the appeal of the respondents was allowed, it ought to be presumed
that they were aware of the imposition of the penalty and should,
therefore, have addressed the authority on penalty as well while arguing
against the appeal.
9. I am not in agreement with the submissions of Shri Sawant for the
reason that if these submissions are accepted, it would mean that every
respondent facing such an appeal will have to be under a constant
shadow or fear of losing the appeal and suffering penalty, on the
W.P. No.4590/2011
presumption that the appeal will be allowed and penalty would be
imposed. This, therefore, would mean that before a verdict on the appeal
is delivered, the concerned party will have to presume that it has lost the
case and also make submissions on the penalty. This does not seem to
be the intent and object of the said proviso.
10. The words/phraseology used in the said proviso, especially "shall
be given a reasonable opportunity of being heard before any penalty is
imposed on him" lead to a pre-supposition that the authority first has to
come to a conclusion on the appeal and in the event the appeal is
allowed, then thereafter the question of penalty would arise. In my view,
the proviso gives the losing parties a right to a notice and hearing as
regards imposition of penalty after the verdict of the appeal is handed
down. It is only thereafter that a party similar to the petitioners would then
become aware that the verdict has gone against it and would then be
posed with the possibility of a penalty being imposed. It is in this situation
that the hearing on the penalty is necessary.
11. From the impugned order it does not appear that the State
Information Commission had put the petitioners to notice about the
penalty and, therefore, obviously there was no hearing before imposing
penalty. The opportunity of being heard is also not to be construed to be
a mere formality or a farcical exercise. By the said proviso, a meaning
W.P. No.4590/2011
can surely be imported that the authority is open to be convinced whether
penalty should or should not be imposed. Had it been a pre-determined
situation in law that the penalty shall be imposed as a matter of routine
course, opportunity of hearing before penalty being imposed would not
have been prescribed under the said proviso. Rather, the said proviso
would not have been in place.
12. In the case of M/s Guduthur Bros. vs. The Income Tax Officer,
Special Circle, Bangalore, reported at AIR 1960 SC 1326, the three
Judges' Bench of the Hon'ble Supreme Court of India, dealing with a case
under section 28 (1) (a) of the Income Tax Act, 1922, held as under :-
"4. There is no question here that the requirements of S. 28 (1)
(a) of the Income Tax Act were not completely fulfilled. If the
appellants had not filed their return, as they were required by law to
do, the omission would attract cl. (a) of sub-s. (1) of S.28. We
say nothing as to that. Sub-s. (3) of S. 28, however, requires
that the penalty shall not be imposed without affording to the
assessee a reasonable opportunity of being heard. This
opportunity was denied to the appellants & therefore the order
of the Income-Tax Officer was vitiated by an illegality which
supervened, not at the initial stage of the proceedings, but
during the course of it. The order of the learned Appellate
Assistant Commissioner pointed out the ground on which the
illegality proceeded and his order directing the refund of the
penalty, if recovered, cannot but be interpreted as correcting the
error and leaving it open to the Income-Tax Officer to continue
W.P. No.4590/2011
his proceedings from the stage at which the illegality occurred. No
express remand for this purpose, as is contended was necessary.
(5) ........ In our opinion, the notice issued to the appellants to
show cause why penalty should not be imposed on them did not
cease to be operative, because the Appellate Assistant
Commissioner pointed out an illegality which vitiated the
proceeding after it was lawfully initiated. That notice having
remained still to be disposed of, the proceedings now started can
be described as during the course of the assessment proceedings,
because the action will relate back to the time when the first notice
was issued. "
13. As such, the analogy from the M/s Guduthur Bros. (supra) ruling
establishes that though issuance of notice before imposing penalty had
not been expressly provided for under the Income Tax Act, 1922,
opportunity of hearing before imposing penalty pre-supposes a proper
hearing. Such a hearing can be made possible by issuing notice of
hearing on penalty. Thus the concerned party is called upon to show
cause as to why penalty should not be imposed. To achieve this object,
which appears to be the intention of the Legislature in providing a proviso
to section 20 (1) of the Right to Information Act, it is incumbent upon the
authority to issue a show cause notice under the proviso to section 20 (1).
14. In the light of the above, the petition is, therefore, partly allowed
with the following directions :-
W.P. No.4590/2011
(a) Impugned judgment and order dated 21st December, 2010,
delivered by the State Information Commission, Bench at
Nashik, in Appeal No.2010/RMA/CR/1937/2009, is quashed and set
aside;
(b) The said appeal is relegated back to the said authority for a
fresh hearing;
(c)
Both the parties are at liberty to bring on record material so
as to enable the appellate authority to deal with the contention of
the petitioners and the respondent under section 2 (h) (i) and the
applicability of the Right to Information Act, 2005.
(d) In the event the appeal of the respondent is allowed and if
the State Information Commission desires to impose penalty,
Section 20 (1) and the first proviso thereunder shall be given effect
to by issuing a show cause notice on penalty to the petitioners
herein and after causing a hearing, would be at liberty to pass an
order on its own merits.
(e) All contentions raised by the respective parties in this
petition as well as in the appeal before the State Information
Commission are kept open.
W.P. No.4590/2011
(f) Both the parties agree to appear before the State Information
Commission Bench at Nashik on 13th January, 2014, at
11.00 a.m.
(g) Both the parties fairly state that they would make their best
endeavour to co-operate with the learned authority in the
proper adjudication of the appeal and would refrain from
seeking unnecessary adjournments.
(h) The learned State Information Commission is expected to
decide the said appeal as expeditiously as possible and
preferably within a period of sixty days from 13th January,
2014.
15. Petition is partly allowed with the above directions.
16. Rule is accordingly made absolute.
(RAVINDRA V. GHUGE),
JUDGE
amj/wp4590.11
