Mahendra vs The State Information ...
2013 Latest Caselaw 240 Bom

                            1               wp2173.13

                                           
          IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                     BENCH AT AURANGABAD




                                                                  
                  WRIT PETITION NO.2173 OF 2013




                                          
     Mahendra s/o Eknath Mali,
     Age: 33 years, Occ: Service,
     Residential Naib Tahsildar,
     Tahsil Office, Chalisgaon,




                                         
     Tq. Chalisgaon, Dist. Jalgaon.       ...PETITIONER 

            VERSUS             




                               
     The State Information Commissioner,
     Bench at Nashik,
                    
     Through its Registrar
     and another.                        ...RESPONDENTS

                          ...
                   
     Mr. Bhausaheb S. Deshmukh, Advocate for 
     petitioner.
     Mr. S.D. Kaldate, A.G.P. for respondent No.1.
     Respondent No. 2 : Served.
      

                          ...
   



         
                            CORAM: S.S. SHINDE J.

                            DATE : 29TH NOVEMBER, 2013 





     ORDER  :

. Heard learned Counsel appearing for the

petitioner.

2. This writ petition takes exception to the

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order passed by the State Information Officer,

Nashik dated 27/03/2012 in Appeal No. 31/2011.

3. It is the case of the petitioner that,

respondent No. 2 herein, filed application and

sought certain information from the office of the

petitioner under the Right to Information Act,2005

(for short, "said Act") on 30/11/2010. After

receipt of the said application immediately the

petitioner on 13/12/2010 forwarded the said

application/part of the said application to the

concerned Talathi and Block Development Officer

and instructed them to provide the information

required by respondent No. 2 to enable him to

provide the same to respondent No.2 and

accordingly, informed in this regard to respondent

No. 2.

. It is further case of the petitioner

that, respondent No. 2 in stead of filing first

appeal before the first appellate authority,

chosen wrong remedy and filed appeal before

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respondent No.1 by way of filing second appeal and

prayed for issuance of necessary directions

against the petitioner for providing the required

information.

4. The petitioner herein, appeared in the

said proceedings on 27/03/2012 and filed his reply

stating therein that, information which is sought

pertains to concerned Talathi and B.D.O.,

therefore, the petitioner is not responsible for

not providing required information to respondent

No. 2. It is further case of the petitioner that,

first appellate authority i.e. Tahasildar,

Chalisgaon on 23/03/2012 filed his say in the

second appeal thereby denying first appeal filed

by respondent No. 2 before him. It is further case

of the petitioner that, respondent No.1 without

considering submissions made by the petitioner as

well as respondent No. 2, allowed the appeal of

respondent No. 2 directing to provide required

information by imposing heavy penalty.

4 wp2173.13

5. The petitioner on 05/06/2012, after

passing order, filed representation/application to

respondent No.1 and prayed for review of the order

dated 27/12/2012. It is the case of the petitioner

that, till date said representation has not been

considered/decided by respondent No.1.

6. This writ petition is filed being

aggrieved by the judgment and order dated

27/03/2012 passed by respondent No.1.

7. Learned Counsel appearing for the

petitioner submits that, in view of the provisions

of sub-section (5) of section 5 of the Right to

Information Act, 2005, Talathi and B.D.O. should

suppose to give information and for lapse/inaction

on the part of Talathi or B.D.O., the present

petitioner who is working as Naib Tahsildar, could

not have been held responsible. It is further

submitted that, petitioner who is holding post of

Naib Tahsildar has to seek information from

Talathi and B.D.O. and the petitioner cannot

5 wp2173.13

supply the information in his official capacity as

Naib Tahsildar or office unless same information

is received from Talathi or B.D.O. It is submitted

that, respondent No.1 has not considered the

effect of not availing remedy of first appeal by

respondent No. 2. It is submitted that, the

Tahsildar in his reply before respondent No.1 in

second appeal has made it clear that, no first

appeal was filed by respondent No.2. It is

submitted that, the petitioner has lost

opportunity to put forth his contention before the

first appellate authority since no first appeal

was filed by respondent No.2. It is further

submitted that, respondent No.1 has imposed

penalty of Rs.25,000/- which is not only

exorbitant, but dehors the mandate of section 25

of the said Act. It is submitted that, requisite

information sought by respondent No. 2 could not

have been provided by the petitioner unless same

is received from Talathi and B.D.O. Therefore,

respondent No.1 should not have imposed penalty of

Rs. 25,000/-. Learned Counsel invited my attention

6 wp2173.13

to Exhibit-B at page-16 of the compilation of the

writ petition i.e., extract from the Register

maintained in respect of receiving application and

furnishing information etc., under Right to

Information Act. Relying upon the entry No. 133 of

the said extract, the Counsel appearing for the

petitioner submits that, application from

respondent No. 2 was received on 30/11/2010 and

same was forwarded to the Talathi and B.D.O. on

13/12/2010. It is submitted that, neither Talathi

nor B.D.O., are held responsible by the second

appellate authority and penalty is imposed upon

the petitioner who is no way concerned or does not

possess information as sought by respondent No. 2

by way of filing application on 30/11/2010. It is

further submitted that, respondent No. 1 has not

considered the provisions of section 5(4) and (5)

of the said Act. It is submitted that, respondent

No.1 has not granted reasonable opportunity of

hearing to the petitioner under section 21 of the

said Act before imposing heavy penalty. The

Counsel appearing for the petitioner relying upon

7 wp2173.13

sub section (4) and (5) of Section 5 of the said

Act submits that, in the facts of the present

case, assistance was sought from Talathi in

respect of information about revenue record and in

respect of panchayat from B.D.O., in that case in

view of mandate of aforesaid provisions, said

officers are required to be treated as State

Public Information Officer. The Counsel for the

petitioner relying upon the extract from the

Register maintained by the office under R.T.I. Act

to receive application, forward the same to

appropriate officer and further to supply

information, submits that application was received

on 30/10/2010 from respondent No. 2 and said was

forwarded on very same date by the concerned Clerk

of the office to the appropriate officers.

Therefore, relying upon the grounds taken in the

petition, the Counsel for the petitioner submits

that, the petition deserves to be allowed.

8. Learned A.G.P. appearing for respondent

No. 1 invited my attention to the

8 wp2173.13

reasons/observations of respondent No.1 in the

impugned judgment and order and submits that,

respondent No.1 has rightly imposed penalty of

Rs.25,000/-. Therefore, this Court may not

interfere in the impugned judgment and order.

9. I have given careful consideration to the

submissions of the Counsel appearing for the

petitioner and learned A.G.P., appearing for the

State. With their able assistance perused the

grounds taken in the petition, annexures thereto,

impugned judgment and order by respondent No.1 and

also relevant provisions of Right to Information

Act, 2005. At the outset, it would be apt to

reproduce herein below section 6 of the Right to

Information Act, 2005 which reads thus :

"6. Request for obtaining information.--

(1) A person, who desires to obtain any information under this Act, shall make a request in writing or through electronic means in English or Hindi or in the official language of the

9 wp2173.13

area in which the application is being made, accompanying such fee as may be

prescribed, to--

(a) the Central Public

Information Officer or State Public Information Officer, as the case may be, of the concerned public authority;

(b) the Central Assistant Public Information Officer or State Assistant Public Information Officer, as the case

may be, specifying the particulars of the

information sought by him or her:

Provided that where such request

cannot be made in writing, the Central Public Information Officer or State Public Information Officer, as the case

may be, shall render all reasonable assistance to the person making the

request orally to reduce the same in writing.

(2) An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except

those that may be necessary for contacting him.

(3) Where an application is made to a public authority requesting for an information,--

10 wp2173.13

(i) which is held by another public authority; or

(ii) the subject matter of which is more closely connected with the

functions of another public authority, the public authority, to which such application is made, shall transfer the

application or such part of it as may be appropriate to that other public authority and inform the applicant

immediately about such transfer:

Provided that the transfer of an application pursuant to this sub-section

shall be made as soon as practicable but in no case later than five days from the date of receipt of the application."

10. Upon careful perusal of Section 6 of the

said Act, when any application is filed by the

person who desires to obtain any information under

the Right to Information Act, has to make request

in writing or through electronic means in English

or Hindi or in the official language of the area

in which the application is being made,

accompanying such fee as may be prescribed. In the

facts of the present case, it is not in dispute

11 wp2173.13

that the office of the petitioner did receive

application on 30/11/2010 from respondent No.2

praying therein, for seeking certain information.

If such application is received, the public

authority to which such application is made shall

transfer the application or such part of it as may

be appropriate to that other public authority and

inform the applicant immediately about such

transfer. In the facts of present case, as it is

evident from the perusal of the extract from the

Register maintained by the office of the

petitioner that, the application was received on

30/11/2010. Learned Counsel appearing for the

petitioner submitted that, the said application

was forwarded to Talathi and B.D.O. on the same

day, however the copy of relevant extract produced

on record, in it's last column would show that,

the said application was forwarded on 13/12/2010

to the Talathi of the concerned village and B.D.O.

Panchayat Samiti. In this respect, proviso to

section 6 of the said Act becomes relevant. Said

proviso provided that, the transfer of an

12 wp2173.13

application pursuant to this sub section shall be

made as soon as practicable but in no case later

than five days from the date of receipt of the

application. Therefore, in the facts of the

present case as it is apparent that, though

application was received on 30/11/2010, same was

not forwarded to the concerned Talathi or B.D.O.,

till 13/12/2010.

11.

The contention of the Counsel for the

petitioner that, respondent No. 2 did not avail

remedy of first appeal, needs no consideration

since respondent No.1 i.e, second appellate

authority in respect of filing first appeal by

respondent No. 2 in the impugned judgment has

observed that, first appeal was filed by

respondent No.2. Relevant observations in the

impugned judgment reads thus :

"vfiykFkhZuak izFke vihy vtZ ftYgkf/kdkjh tGxkao ;kaP;kdMs lknj dsysyk fnlwu ;srks o gk vtZ ftYgkf/kdkjh tGxkao ;kauh i= [email protected]@2011 uqlkj rgflynkj

13 wp2173.13

pkGhlxkao ;kaP;kdMs iq<hy dk;ZokghlkBh ikBfoyh vkgs o ;k i=kph izr vfiykFkhZuka] rgflynkj dk;kZy;k'kh laidZ

lk/;.;klkBh] ns.;kr vkyh vkgs- gs ftYgkf/kdkjh dk;kZy;kps i= R;kaP;kdMs vk<Gwu vkys ukgh vls

rgflynkj ;kauh lkafxrY;ko:u R;kauk let ns.;kr ;srs dh] R;kauh ekfgrhP;k vf/kdjk varxZr vtkZckcrph

dk;Zi/nrh mfprjhR;k lq/kkjkoh o Hkfo";kr mfpr dkGth ?;koh-"

12. Though the Counsel appearing for the

petitioner invited my attention to the contents of

the say which was filed before respondent No.1 in

support of his contention that, no first appeal

was filed, however, in view of the observation of

the second appellate authority in its impugned

judgment, the first appeal was filed by respondent

No.2. Any how, such disputed question of fact

cannot be gone into in this writ petition. Even

assuming that, first appeal was not filed by

respondent No.2, in that case respondent No. 2 had

lost opportunity of availing remedy of first

appeal.

14 wp2173.13

13. Another contention of the Counsel for the

petitioner is that, B.D.O. and the concerned

Talathi are responsible for furnishing information

as sought by respondent No. 2 is concerned, the

second appellate authority upon considering

material placed on record has observed thus:

"vk;ksxkl miyC/k d:u ns.;kr vkysyh dkxni=s] vfiykFkhZ o

mRrjoknh ;kapk ;qDrhokn ikgrk vls fnlwu ;srs dh] vfiykFkhZP;k ewG

vtkZe/;s eq|k dzekad 1 o 2 uqlkj [email protected] mrkjs] jfgoklh nk[kyk] okjl nk[kyk oxSjslkBh rykBh ;kauk fdrh Qh |koh ykxrs oxSjs ekfgrh

fopkjyh vkgs- gh ekfgrh fuoklh uk;c rgflynkj gs nsm 'kdrkr vls lquko.kh njE;ku fnlwu vkys- gh ekfgrh lacf/kr rykBh ;kauhp fnyh

ikghts vls ukgh dkj.k 'kklu ifji=dkP;k vk/kkjs gh ekfgrh] fuoklh

uk;c rglhynkj miyC/k d:u nsow 'kdrkr R;keqGs eq|k dzekad 1 o 2 ph ekfgrh u iqjfo.ks gh fuoklh uk;c rgflynkj ;kaph VkGkVkG dj.;kph o`Rrh n'kfors- lquko.kh njE;kuP;k ,danj mRrjs ns.;kph

i/nrho:u fuoklh uk;c rgflynkj ;kaph ekfgrh iqjfo.;krhy udkjkRed o`Rrh fnlwu vkyh- R;kauk naM dk yko.;kr ;sow u;s ;kckcr R;kaps ys[kh fuosnu ns.;kl lkafxrys vlrk R;kauh vls fygwu fnys vkgs

dh] vkrk rs vtZnkjkl eq|k dzekad 1 rs 4 ph ekfgrh foukfoyac o fouk'kqYd iqjorhy] rlsp vtZnkjkus lquko.khP;k osGsl lknj dsysys fuosnu o fopkjk/khu vlysY;k vihy vtkZpk laca/k uOgkrk- vfiykFkhZuk vktrkxk;r ekfgrh feGkysyh ukgh gh oLrqfLFkrh vkgs o vfiykFkhZ gs

15 wp2173.13

79 o"kkZps o`/n x`gLFk vkgsr- tu ekfgrh vf/kdkjh gs lnj foyacklkBh dks.krsgh leFkZuh; dkj.k lkaxw 'kdysys ukghr R;keqGs R;kaP;koj

vf/kfu;ekrhy dye 20¼1½ uqlkj jDde :i;s 25][email protected]& ph 'kkLrh ykn.;kr ;sr vkgs- R;kauh ;k jdespk Hkj.kk ^^0070 brj iz'kklfud

lsok] 60 brj lsok] 800 brj tek jDde] 18 ekfgrhpk vf/kdkj 0070&0061** ;k ys[kkf'k"kkZ[kkyh 'kkldh; dks"kkxkjkr tkLrhr tkLr

5 ekfld leku gIR;kr djkok- tu ekfgrh vf/kdkjh rFkk fuoklh uk;c rgflynkj] pkGhlxkao ;kauk vls vknsf'kr dj.;kr ;srs dh] vfiykFkhZuak vis{khr vlysyh ekghr R;kauh jftLVj iks"Vkus 8 fnolkar foukeqY;

iqjokoh- vfiykFkhZus izFke vihy vtZ ftYgkf/kdkjh tGxkao ;kaP;kdMs

lknj dsysyk fnlwu ;srks o gk vtZ ftYgkf/kdkjh tGxkao ;kauh i= [email protected]@2011 uqlkj rgflynkj pkGhlxkao ;kaP;kdMs iq<hy

dk;ZokghlkBh ikBfoyh vkgs o ;k i=kph izr vfiykFkhZuka] rgflynkj dk;kZy;k'kh laidZ lk/;.;klkBh] ns.;kr vkyh vkgs- gs ftYgkf/kdkjh

dk;kZy;kps i= R;kaP;kdMs vk<Gwu vkys ukgh vls rgflynkj ;kauh lkafxrY;ko:u R;kauk let ns.;kr ;srs dh] R;kauh ekfgrhP;k vf/kdjk

varxZr vtkZckcrph dk;Zi/nrh mfprjhR;k lq/kkjkoh o Hkfo";kr mfpr dkGth ?;koh-"

(Underlines supplied).

14. Therefore, upon careful perusal of

observations/reasons recorded by respondent No. 1,

it appears that, even the petitioner could have

furnished information as sought by respondent

No.2. This finding recorded by the respondent

16 wp2173.13

No. 1 is based upon the material placed on record.

15. The contention of the petitioner that,

since the petitioner was not responsible to supply

information and in absence of fastening liability

on the B.D.O., and Talathi, no penalty could have

been imposed upon the petitioner, deserves no

consideration since penalty is imposed after

recording finding that, even the petitioner could

have supplied the said information, however, he

tried to avoid to furnish such information as

prayed by respondent No. 2 in his application

dated 30/11/2010. It further appears that, not

only that, the second appellate authority has

adverted to the written documents/material placed

on record, however, the petitioner was given

opportunity to put forth his contention before the

second appellate authority. Therefore, there is no

substance in the contention that, the petitioner

was not heard before imposing such penalty under

section 25 of the said Act.

17 wp2173.13

16. While considering the case in its

entirety under extraordinary writ jurisdiction, in

the light of discussion herein above, view taken

by the second appellate authority i.e., respondent

No.1 appears to be plausible, reasonable and in

consonance with the material placed on record. No

case is made out for interference in the impugned

judgment and order. Writ Petition sans merit,

hence rejected.

[ S.S. SHINDE, J .]

Tupe/29.11.13