Gujarat High Court

Prakash Ishwarbhai Patel vs State Of Gujarat on 23 January, 2024

Author: Vaibhavi D. Nanavati

Bench: Vaibhavi D. Nanavati

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     C/SCA/5236/2022                            ORDER DATED: 23/01/2024

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 5236 of 2022

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                       PRAKASH ISHWARBHAI PATEL
                                 Versus
                           STATE OF GUJARAT
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Appearance:
PARTY IN PERSON(5000) for the Petitioner(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 1,3
MR SHIVANG M SHAH(5916) for the Respondent(s) No. 2
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                            Date : 23/01/2024

                              ORAL ORDER

1. By way of present writ-application filed under Article 226

of the Constitution of India the writ-applicant herein has

prayed for the following reliefs :-

"(A) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction to set aside the impugned order dated 08-03-2018 passed by Respondent No: 2 and Direct the Respondent No:2 to re number the complaint in complaint register and after hearing the petitioner necessary order according to law be passed by Respondent No: 2.

(B) YOUR lordship may pleased to permit the present

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petitioner to Appear /Represent this/his case in person in compliance of rule 31A of the Gujarat High Court Rules 1993.

(C) The cost of this petition Rs.50000/-be allowed in favour of the petitioner.

(D) The Hon'ble Court may kindly be pleased to grant any other appropriate relief as the nature circumstances of the case may require."

2. It is the case of the writ-applicant that, one of the

victim of land grabber a headstrong person has acquired nearly

300 acres of agricultural lands in the name of a firm in

District Anand in State of Gujarat. The land grabber is not an

agriculturest but by submitting fabricated bogus documents

before Revenue Officers and in connivance with the officers

certified those entries. The land grabber obtained one bogus

certificate from respondent No.3 and presented before

Mamlatdar at Ankalav Dist : Anand and got the sale deed

entries certified in the revenue records. In this way this chain

of conspiracy went in other Districts of Gujarat. In this way,

acquired huge crunch of lands by playing fraud with the

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farmers as well as the State. Though the Collectors of State,

Police Department, the Revenue Department etc., are well

aware of illegal acts of such headstone person, instead of

taking stringent action they are allowing him to carry out his

illegal acts may be due to any kind of gratification. When the

present writ-applicant received such information from

Mamlatdar -Ankalav that a certificate is issued by the

respondent No.3 that "Viral Hasmukhrai Ajmera is an

agriculturist in District Gandhinagar village CHALA.", the writ-

applicant preferred RTI application before respondent No.3.

The Respondent No.3 being the custodian of Revenue Record

willfully did not part the requested information nor replied to

the writ-applicant therefore, it is a clear cut breach of the RTI

Act as well as other laws.

3. Being aggrieved and dissatisfied with the refusal of

information the writ-applicant herein preferred a complaint

before the respondent No.2 on 1.3.2018 under Section 18 of

RTI Act, 2005 as per prescribed format. The Respondent no:2

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registered the complaint under Section 18 of the RTI Act as a

Second Appeal being no A-1742-2018 and passed an order on

08.03.2018 disposing of the Appeal reserving the liberty in

favour of the writ-applicant to prefer statutory Appeal under

Section 19 of the RTI Act. The said order is subject matter of

challenge before this Court invoking Article 226 of the

Constitution of India.

4. Heard party-in-person Mr. Prakash Ishwarbhai Patel, Mr.

Shivang Shah, the learned advocate appearing for the

respondent No.2 and Ms. Shruti Pathak, the learned AGP

appearing for the respondents No.1 and 2.

5. The party-in-person Mr. Prakash Ishwarbhai Patel

vehemently submitted that the writ-applicant is constrained to

challenge the action of the respondent for not providing the

requested information under the RTI Act as well as the

notifications issued by the respondent No.1 under the Revenue

Code as well as the Gujarat (Right of Citizens to Public

Services) Act, 2013.

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6. The writ-applicant filed application before the

respondent No.3 which was not decided within a stipulated

time period, therefore the writ-applicant herein approached the

respondent No.2 by filing complaint under Section 18 of the

RTI Act. The said application was decided by the respondent

No.2 vide order dated 8.3.2018 reserving the liberty in favour

of the writ-applicant to prefer an Appeal under Section 19 of

the RTI Act.

7. It was submitted that the aforesaid is erroneous and the

respondent authority is duty bound to supply information to

the writ-applicant under Section 18 of the RTI Act.

8. Per contra, Mr. Shivang Shah, the learned advocate

appearing for the respondent No.2 submitted that the said

application came to be disposed of by the respondent No.2

placing reliance on the ratio as laid down by the Hon'ble

Supreme Court in Civil Appeals Nos.10787-88 of 2011 in SLPs

cannot be compelled to part with the information sought for

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by the applicant. In line of the aforesaid the complaint came

to be disposed by order dated 8.3.2018 (Annexure-C).

8.1 Mr. Shah, the learned advocate submitted that if the

writ-applicant is aggrieved by the order passed by the

Mamlatdar, the writ-applicant may file Appeal under Section

19 of the Act which is a statutory Appeal. He submitted that

present writ-application may not be entertained.

9. Ms. Shruti Pathak, the learned AGP appearing for the

respondents No.1 and 2 placed reliance on the communication

dated 21.6.2022 and submitted that the information sought for

by the writ-applicant - original complainant on 12.1.2018

which is duly supplied to the writ-applicant and the grievance

as such would not survive. It was submitted that the said

communication is supplied to the writ-applicant through

Registered Post A.D. In view thereof, the present writ-

application would not survive.

10. The learned party-in-person controverted the aforesaid

submissions. The learned party-in-person submitted to being

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aware with respect to the provisions of law, the respondent

No.2 be directed to consider the application of the writ-

applicant and provide opportunity of hearing to the writ-

applicant.

11. Having considered the facts of the present case, the writ-

applicant approached the respondent No.3 - Mamlatdar seeking

information under the provisions of Right to Information Act

by an application dated 12.1.2018. The said information as

such is supplied on 21.6.2022 as per the communication placed

on record by the learned AGP, the said information having

been supplied, as such the prayers as prayed for by the writ-

applicant in the said application stands satisfied.

11.1 In the opinion of this Court, if the writ-applicant is

dissatisfied with the information that is provided/supplied on

21.6.2022, it is open for the writ-applicant to prefer an Appeal

under Section 19 of the RTI Act.

12. At this stage, this Court deems it fit to refer to Sections

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18 and 19 of the Right to Information Act, which read thus:-

"SECTION 18 : Powers and functions of Information Commissions (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 subsection (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-limit 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

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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 (5 of 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 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.

"SECTION 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 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 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.

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(2) Where an appeal is preferred against an order made by a Central Public Information Officer or a State Public Information Officer, as the case may be, under Section 11 to disclose third-

party information, the appeal by the concerned third party shall be made within thirty days from the date of the order. (3) A second appeal against the decision under sub-section (1) shall lie within ninety days from the date on which the decision should have been made or was actually received, with the Central Information Commission or the State Information Commission :

Provided that the Central Information Commission or the State Information Commission, as the case may be, may admit the appeal after the expiry of the period of ninety days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (4) If the decision of the Central Public Information Officer or State Public Information Officer, as the case may be, against which an appeal is preferred relates to information of a third party, the Central Information Commission or State Information Commission, as the case may be, shall give a reasonable opportunity of being heard to that third party.

(5) In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request.

(6) An appeal under sub-section (1) or sub-section (2) shall be disposed of within thirty days of the receipt of the appeal or within such extended period not exceeding a total of forty-five days from the date of filing thereof, as the case may be, for reasons to be recorded in writing.

(7) The decision of the Central Information Commission or State Information Commission, as the case may be, shall be binding. (8) In its decision, Central Information Commission or State Information Commission, as the case may be, has the power to -

(a) require the public authority to take any such steps as may be necessary to secure compliance with the provisions of this Act, including -

(i) by providing access to information, if so requested, in a particular form;

(ii) by appointing a Central Public Information Officer or State Public Information Officer, as the case may

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be;

(iii) by publishing certain information or categories of information;

(iv) by making necessary changes to its practices in relation to the maintenance, management and destruction of records;

(v) by enhancing the provision of training on the right to information for its officials;

(vi) by providing it with an annual report in compliance with clause (b) of subsection (1) of Section 4;

(b) require the public authority to compensate the complainant for any loss or other detriment suffered;

(c) impose any of the penalties provided under this Act;

(d) reject the application.

(9) The Central Information Commission or State Information Commission, as the case may be, shall give notice of its decision, including any right of appeal, to the complainant and the public authority.

(10) The Central Information Commission or State Information Commission, as the case may be, shall decide the appeal in accordance with such procedure as may be prescribed.

13. It is apposite to refer to the ratio as laid down in the

case of Chief Information Commissioner and Anr. vs. State of

Manipur and Anr., reported in (2011) 15 SCC 1, paragraphs

32, 39, 40 and 49 which read thus :-

"32. 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

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to pass an order providing for access to the information.

39. The nature of the power under Section 18 is supervisory in character whereas the procedure under Section 19 is an appellate procedure and a person who is aggrieved by refusal in receiving the information which he has sought for can only seek redress in the manner provided in the statute, namely, by following the procedure under Section 19. This Court is, therefore, of the opinion that Section 7 read with Section 19 provides a complete statutory mechanism to a person who is aggrieved by refusal to receive information. Such person has to get the information by following the aforesaid statutory provisions. The contention of the appellant that information can be accessed through Section 18 is contrary to the express provision of Section 19 of the Act.

40. It is well known when a procedure is laid down statutorily and there is no challenge to the said statutory procedure the Court should not, in the name of interpretation, lay down a procedure which is contrary to the express statutory provision. It is a time honoured principle as early as from the decision in Taylor V/s. Taylor [(1876) 1 Ch. D. 426] that where statute provides for something to be done in a particular manner it can be done in that manner alone and all other modes of performance are necessarily forbidden. This principle has been followed by the Judicial Committee of the Privy Council in Nazir Ahmad V/s. Emperor [AIR 1936 PC 253(1)] and also by this Court in Deep Chand V/s. State of Rajasthan - [AIR 1961 SC 1527, (para 9)] and also in State of

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U.P. V/s. Singhara Singh reported in AIR 1964 SC 358 (para

8).

49. There is another aspect also. The procedure under Section 19 is an appellate procedure. A right of appeal is always a creature of statute. A right of appeal is a right of entering a superior forum for invoking its aid and interposition to correct errors of the inferior forum. It is a very valuable right. Therefore, when the statute confers such a right of appeal that must be exercised by a person who is aggrieved by reason of refusal to be furnished with the information."

14. Having considered the facts of the present case, position

of law as referred above and provisions of Act, no interference

is called for in the order dated 08.03.2018 passed by the

competent authority, the Second Appeal being No.A-1742-2018

having filed invoking Section 18 of the RTI Act.

15. Section 18 of the Act provides for supervisory power to

the Commissioner to consider a complaint by a person

aggrieved on the ground mentioned under Section 18 of the

Act and it is then for the Commissioner to inquire into the

complaint and decide whether to initiate inquiry with respect

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