Ishwarsingh Raybhan Manza vs State Of Mah And Ors
2017 Latest Caselaw 3246 Bom

                                                               WP No.3529/17
                                       1


                  IN THE HIGH COURT AT BOMBAY
              APPELLATE SIDE, BENCH AT AURANGABAD

                      WRIT PETITION NO. 3529 OF 2007

          Ishwarsingh Raybhan Manza,
          Age 39 years, Occu. Service as
          the Deputy Registrar (Academic),
          Dr. Babasaheb Ambedkar Marathwada
          University, Aurangabad.                          ....Petitioner.

                  Versus

 1.       {State of Maharashtra}
          (Deleted in view of order dated
          25.6.2007).
          Secretary,
          State Information Commissioner
          Office, 13 Floor, New Administrative
          Building, In front of Mantralaya,
          Mumbai 400 032.

 2.       The Registrar,
          Dr. Babasaheb Ambedkar Marathwada
          University, Aurangabad.

 3.       Smt. Sandhya Sakharampant Asegaonkar,
          C/o. Brudukkar Niwas,
          Behind Secondary School,
          Vidyanagar, Parli-Vaijnath,
          Dist. Beed.                   ....Respondents.

 Mr. S.G. Chapalgaonkar, Advocate for petitioner.
 Mrs. V.N. Patil/Jadhav, A.G.P. for respondent/State.
                               CORAM       :   T.V. NALAWADE AND
                                               SANGITRAO S. PATIL, JJ.

                               DATED   :       June 15, 2017.


 ORAL JUDGMENT : [PER T.V. NALAWADE, J.]

 .                The petition is filed to challenge the order made by

 the       State       Commissioner    for      information          in     appeal





                                                                    WP No.3529/17

No.2007/RIA/Appeal/CR/181/2007 by which fine, penalty came

to be imposed on petitioner of Rs.25,000/-, who was

Information Officer, Registrar of University. The learned counsel

for the petitioner is heard. The learned A.G.P. is heard. One

counsel Shri. S.S. Deshmukh is appointed by original

complainant, present respondent No. 3. He did not turn up on

yesterday and so, the matter was adjourned to today. Today also

he did not turn up.

2. The learned counsel for petitioner has argued on

procedural aspect. He submitted that before imposing penalty,

the procedure as laid down in first proviso of section 20 of Right

to Information Act 2005 was not followed by the Commissioner

and that has caused prejudice and so, the order needs to be set

aside. It is true that in section 20 power is given to the

Information Commissioner to impose penalty if he forms opinion

that the information was not furnished within the time specified

in section 7 or malafidely, there was refusal to supply the

information. However, this power is subject to the first proviso

mentioned in the same section, which is as under :-

"Provided that the Central Public Information Officer or the State Public Information Officer, as

WP No.3529/17

the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him."

3. In the aforesaid provision, there is mention that

reasonable opportunity needs to be given of being heard to the

person like present petitioner before penalty is imposed on him.

This Court has gone through the decision given by the

Information Commissioner. The reasoning is only in respect of

the order which could have been made in favour of respondent

No. 3, the lady who had applied for information and the

reasoning can be taken as justification for making the order in

favour of lady. Nowhere it is mentioned in the reasoning that

when the opinion was formed by the Commissioner that it was

necessary to impose penalty as provided in section 20 of the

aforesaid Act, the present petitioner was called and he was

asked to have his say even orally on this point. It can be said

that there was possibility that petitioner could have convinced

the Commissioner on this point. Considering this possibility, it

can be further said that prejudice is necessarily caused to the

petitioner by not giving him opportunity of having his say on the

point of penalty. On this point, the learned counsel for petitioner

has placed reliance on the case reported as 2015(3) Mh.L.J.

WP No.3529/17

900 [Dr. Hedgewar Seva Samiti, Kolada, Dist. Nandurbar

and Anr. Vs. Purushottam s/o. Ramdas Joshi and Ors.]

and also some observations made by the Apex Court in the case

reported as AIR 2013 SUPREME COURT 681 [Manohar

Manikrao Anchule Vs. State of Maharashtra and Anr.].

There cannot be dispute over the propositions made by the

learned counsel for the petitioner that the procedure given in

proviso of section 20 needs to be followed before imposing

penalty. If such procedure is not followed, the order cannot

sustain in law. The matter is of 2007 and nothing can be

achieved by remanding back the matter to Commissioner and

asking him to follow the procedure.

4. In the result, the petition is allowed. The order under

challenge is set aside.

Rule is made absolute in aforesaid terms.

[SANGITRAO S. PATIL, J.] [T.V. NALAWADE, J.]

ssc/