C.V.Raman vs The Land Revenue Commissioner
2022 Latest Caselaw 9432 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                &
            THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
     THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944
                        WA NO. 1163 OF 2022
 AGAINST THE JUDGMENT IN WP(C) 7699/2022 OF HIGH COURT OF KERALA
                          DATED 1.6.2022
APPELLANT/PETITIONER:

           C.V.RAMAN
           AGED 81 YEARS
           S/O.VELAYUDHAN EZHUTHACAHAN,
           RESIDING AT CHEMMANDA HOUSE,
           MOORKKANIKKARA, KOZHUPPILLY P.O.,
           THRISSUR DISTRICT - 680 152.

           BY ADVS.
           SRI. R.NIKHIL
           Ms. MISHAL.M.DASAN

RESPONDENTS/RESPONDENTS:

    1      KARTHIYANI
           AGED 59 YEARS
           VADASSERY HOUSE, MOORKKANIKKARA,
           KOZHUKKULLI P.O.,
           THRISSUR DISTRICT, PIN - 680 752.

    2      STATE OF KERALA
           REPRESENTED BY SECRETARY,
           REVENUE DEPARTMENT, SECRETARIAT,
           THIRUVANANTHAPURAM, PIN - 695 001.

    3      SECRETARY TO GOVERNMENT
           AGRICULTURAL DEPARTMENT,
           GOVERNMENT SECRETARIAT,
           THIRUVANANTHAPURAM, PIN - 695 001.

    4      STATE INFORMATION COMMISSION
           PUNNEN ROAD, THIRUVANANTHAPURAM,
           PIN - 695 001.
    W.A.1163 &1164 of 2022
                                 2

    5        THE DISTRICT COLLECTOR
             THRISSUR, AYYANTHOLE P.O.,
             THRISSUR - 680 003.

    6        THE REVENUE DIVISIONAL OFFICER
             OFFICE OF THE RDO, AYYANTHOLE P.O.,
             THRISSUR - 680 003.

    7        GEOLOGIST
             MINING AND GEOLOGY DEPARTMENT,
             OFFICE OF GEOLOGIST,
             THRISSUR - 680 003.

             BY ADVS.
             SRI. N.K.SUBRAMANIAN
             SRI. ABRAHAM MATHAN
             SRI. ATHUL TOM

OTHER PRESENT:


             SRI. M AJAY- SC, STATE INFORMATION COMMISSION


       THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
25.08.2022, ALONG WITH WA.1164/2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
    W.A.1163 &1164 of 2022
                                      3


             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
        THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                     &
              THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
    THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944
                             WA NO. 1164 OF 2022
   AGAINST THE JUDGMENT IN WP(C) 27429/2020 OF HIGH COURT OF
                            KERALA DATED 1.6.2022


APPELLANT/PETITIONER:

             C.V.RAMAN,
             AGED 81 YEARS,S/O.VELAYUDHAN EZHUTHACHAN.
             RESIDING AT CHEMMANDA HOUSE,
             MOORKKANIKKARA, KOZHUPPILLY P.O.,
             THRISSUR DISTRICT-680 152.

             BY ADVS.
             SRI. R.NIKHIL
             Ms. MISHAL M.DASAN

RESPONDENTS/RESPONDENTS:

    1        THE LAND REVENUE COMMISSIONER,
             THIRUVANANTHAPURAM,PIN-695001.

    2        THE DISTRICT COLLECTOR,
             THRISSUR,AYYANTHOLE P.O.,
             THRISSUR-680003.

    3        THE REVENUE DIVISIONAL OFFICER,
             OFFICE OF THE RDO,AYYANTHOLE P.O.,
             THRISSUR-680003.

    4        THE GEOLOGIST,
             MING AND GEOLOGY DEPARTMENT,
             OFFICE OF THE GEOLOGIST,THRISSUR-680003.
    W.A.1163 &1164 of 2022
                                4

    5        KARTHIYANI,
             AGED 59 YEARS,W/O.PUSHKARAN,
             VADASSERY HOUSE,MOORKKANIKKARA,
             KOZHUKKULI P.O.,
             THRISSUR DISTRICT,PIN-680752.

             BY ADVS.
             SRI. N.K.SUBRAMANIAN
             SRI. ABRAHAM MATHEW
             SRI. ATHUL TOM


       THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
25.08.2022, ALONG WITH WA.1163/2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
    W.A.1163 &1164 of 2022
                                     5




                             JUDGMENT

Dated this the 25th day of August, 2022

Shaji P. Chaly, J.

The captioned writ appeals are filed by one and the same

person, challenging common judgment of learned Single Judge in

W.P(C).Nos.7699 of 2022 and 27429 of 2022 dated 1.6.2022.

W.P(C).7699 of 2022 was filed by one Karthyayani-1 st respondent

herein, seeking to quash Exhibit P12 order passed by State

Information Commission Kerala, Thiruvananthapuram dated

21.4.2017 in Appeal Petition No.1908(2)/2016/SIC, whereby the

Commission has issued the following directions:

"5. In the report furnished to the Commission on 31/10/2016 by the 2nd Respondent, it was stated that on scrutiny of the thapal distribution register for the year 2008, it was found that Smt. Karthyani had submitted an application for excavation of clay on 01/04/2008 and same was transferred to B2-section in the office. However, file No. 5884/08 could not be traced

6. The Appellant who appeared before the Commission stated that Smt. Karthayani was issued with an NOC for clay-of excavation in the year 2008 and that the property in question was wet-land and the above applicant had removed clay from the said property and filled the same with soil. He stated that W.A.1163 &1164 of 2022

clay from the above property was removed far in excess of the allowed quantity and refilled the same with soil. As a result, the low lying paddy field of the Appellant gets flooded during rains, making it impossible for him to cultivate his paddy land. District Collector, Thrissur had ordered that the newly filled soil from the paddy field of Smt. Karthyani should be removed and the paddy field restored to its earlier position. However, nothing has been done due to the collusion of officers concerned with the person who removed clay from the wet-land.

7. On scrutinizing the appeal petition and connected documents, the Commission- finds that the document sought by the Appellant contained in file No. 5884/08 could not be traced and as such, the information sought by him has not been furnished to him. The Commission obtained a copy of the order which the Appellant claimed to have been issued from file no. 5884/08/K.Dis. The above document obtained from the office of the Geologist, Thrissur would show that the order was issued on 03/04/2004 from file No. 5885/08/K.Dis. The reference number also shows that it was issued from B2- section. The above would vindicate the claim of the Appellant that the above order was fabricated. It would probably further reiterate the claim of the Appellant that the file has been deliberately removed by somebody from the office. If the file was destroyed as per the office procedure on completion of 3 years, there should be an entry in the File Disposal/File Destruction Register. In the absence of such an entry in the above file, the respondents are duty bound to trace the above file within 20 days of receipt of this order. In the eventuality of non-tracing of the file within the above time limit, the 2nd Respondent will conduct a detailed enquiry in the matter, fixing up responsibility on the office concerned W.A.1163 &1164 of 2022

for the missing of the file and departmental action should be taken against the officer concerned. The result of action taken in this regard should be intimated to the Commission within 2-months of receipt of this order.

8. The Commission also finds that there is prima-facie evidence to show that order dated 03/04/2004 issued from file No. B2-5884/08/Kdis. from the Revenue Divisional Office, Thrissur is a fabricated one and as such, it calls for a detailed enquiry by the District Collector, Thrissur. Though the matter does not strictly come under the jurisdiction of the RTI Act, the Commission finds it right to refer the matter to the District Collector, Thrissur for appropriate action as deemed it by the District Collector. The Commission directs the Secretary of the Commission to forward a copy of this order to the district collector, Thrissur for appropriate follow up action in the matter."

2. The paramount contention advanced by Karthiyayini is

that the information sought for by the appellant Sri C.V. Raman

from the State Information Commission is a third party

information and therefore, the order passed by the State

Commission without opportunity of hearing to the appellant is

hit by Sub Section (4) of Section 19 of the Right to Information

Act, 2005. Appellant is the 7th respondent in the said writ

petition. Whereas, W.P(C).No.27429 of 2020 is filed by the

appellant seeking a writ of mandamus commanding the District

Collector, Thrissur to immediately conduct an enquiry into the W.A.1163 &1164 of 2022

serious malpractices pointed out by the State Information

Commission, Kerala, evident from the order passed by the State

Commission dated 21.4.2017, produced as Exhibit P4 along with

the said writ petition, which is corresponding to Exhibit P12 in

the other writ petition; and for a further writ of mandamus

directing the Revenue Divisional Officer, Thrissur-respondent

No.3 in the writ petition, to keep in abeyance the operation of

Exhibit P2 permit granted by the Geologist, Thrissur dated

3.4.2004 to the writ petitioner in W.P(C). No.7699 of 2022,

permitting the said person to excavate and mine clay, under the

provisions of Land Utilisation Order, 1967.

3. The learned Single Judge, after taking note of the rival

submissions and taking into account Section 19 of the Right to

Information Act, 2005 (for short 'Act 2005'), has passed the

following order.

"......... ......... ..........

Section 19 of the Right to Information Act, reads thus:

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 W.A.1163 &1164 of 2022

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.

(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.

W.A.1163 &1164 of 2022

6. The State Government has also framed the rules vide notification dated 31.5.2016 called Kerala State Information Commission (Procedure for Appeal) Rules 2006. As per sub Rule 5 of Rule 5, the procedure for deciding the appeal has been prescribed wherein it is imperative for the appellate authority to hear the third party. 5. Procedure in deciding appeal - In deciding an appeal, the Commission may:- xxx v. hear the third party;

7. On joint reading of the Act as well as the Rules extracted above, it is evident that at any point of time when the appeal is preferred by informant against the order of the subordinate authority seeking information against the 3rd party, 3rd party is required to be heard. The order impugned Ext.P12 does not reflect any such opportunity of hearing being afforded to the petitioner. In this view of the matter, order of the State Information Commission is not sustainable and therefore hereby set aside. Writ petition is allowed. Matter is remitted back to the 3rd respondent to hear the appeal preferred by the 7th respondent in accordance with law after affording an opportunity of hearing.

The prayer in the W.P.(C) No.27429 of 2020 has become redundant in view of the disposal of the W.P.(C) No.7699 of 2022. Thus W.P.(C) No.27429 of 2020 also stands disposed of."

4. Therefore, the order of the State Information

Commission was interfered with by the learned Single Judge on

the ground that the third party, namely, the petitioner in W.P(C).

No.7699 of 2022 was not heard before the order was passed by

the State Information Commission. According to the appellant, W.A.1163 &1164 of 2022

the order of the learned Single Judge requires interference since

in each and every case, the third party is not to be heard before

any orders are passed. It is also pointed out that a third party

needs to be heard, if only the parameters as are required under

Section 11 of Act 2005 dealing with third party information is

satisfied. It is also pointed out that Section 19(4) cannot be read

in isolation of Section 11 of Act 2005.

5. The brief material facts for the disposal of the appeals

are as follows:

Petitioner in W.P(C). No.7699 of 2022 ie., 1st respondent in the

appeal is the owner of an extent of 1 Acre 62 cents of land in

Survey No.206 of Kozhukulli Village, which is remaining in the

data bank prepared under the provision of the Kerala

Conservation of Paddy Land and Wetland Act, 2008 as paddy

field. It is the case of the said petitioner that a permission was

sought to excavate and mine clay from the said land under the

provision of Kerala Land Utilisation Order, 1967 before the

Revenue Divisional Officer, the competent authority and it was

granted as per Exhibit P2 dated 3.4.2014. Petitioner had made a

submission that the date contained in Exhibit P2 is a mistake, W.A.1163 &1164 of 2022

since actually it was issued on 5.5.2008.

6. The case of the petitioner therein is that the 7 th

respondent/appellant is a competitor to the petitioner and he

has filed a complaint before the authority under the provisions of

the Kerala Conservation of Paddy Land and Wetland Act, 2008

(for short 'Act 2008') alleging that the said writ petitioner was

filling up land in violation of the Provisions of Act, 2008. Anyhow,

the information sought for by the appellant before the State

Public Information Officer and the Appellate Authority were

dismissed and it was accordingly that appeal was preferred

before the State Information Commission as per Section 19 of

the Act, 2005, which was partly allowed by the State Information

Commission as per the order in question.

7. The contention put forth by the appellant is that there is

no basis for the direction issued by the learned Single Judge in

setting aside the order of the State Commission on the ground

that the writ petitioner/party respondent in the appeals was not

provided with an opportunity of hearing since the information

was sought on account of a permit issued to the said person

namely, Karthiyayani.

W.A.1163 &1164 of 2022

8. We have heard learned counsel Sri. R. Nikhil for the

appellant, Senior Government Pleader Sri. V. Tekchand, Sri. M.

Ajay learned Standing Counsel for the State Information

Commission and learned counsel Sri. N.K. Subramanian for party

respondent-Smt. Karthiyayani and perused the pleadings and

material on record.

9. In our considered opinion, the issue basically revolves

around Sections 11 and 19 (4) of Act 2005. For convenience,

Sections 11 and 19 are extracted:

"11. Third party information.--

Where a Central Public Information Officer or the State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information:

W.A.1163 &1164 of 2022

Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party. (2) Where a notice is served by the Central Public Information Officer or State Public Information Officer, as the case may be, under sub-section (1) to a third party in respect of any information or record or part thereof, the third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure. (3) Notwithstanding anything contained in section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under section 6, if the third party has been given an opportunity to make representation under sub-section (2), make a decision as to whether or not to disclose the information or record or part thereof and give in writing the notice of his decision to the third party.

(4) A notice given under sub-section (3) shall include a statement that the third party to whom the notice is given is entitled to prefer an appeal under section 19 against the decision.

Section 19 reads thus:

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 W.A.1163 &1164 of 2022

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.

(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.

....... ........ ....... ......."

10. On a reading of Sub-section (1) of Section 11, what we

could understand is that a third party need to be heard only when

a Central Public Information Officer or State Public Information

Officer as the case may be, intends to disclose any information or

record, or part thereof on a request made under the Act, 2005, W.A.1163 &1164 of 2022

which relates to or has been supplied by a third party and has

been treated as confidential by the third party (emphasis

supplied).

11. The documents in question are in respect of the permit

granted by the Geologist and other consequential documents

and therefore, the appellant has applied for the documents from

the files of the State Public Information Officer and the appellant

has never sought for any document from the third party ie.,

Karthiyayani, which is treated as a confidential document by the

third party. The term 'confidential document' is dealt with under

Section 8 of the Act 2005, dealing with 'exemption of disclosure

of information'. Clause (j) of Section 8(1) specifies that

information which relates to "personal information, the

disclosure of which has no relationship to any public activity or

interest, or which would cause unwarranted invasion of the

privacy of the individual, unless the Central Public Information

Officer or the State Public Information or the Appellate

Authority (emphasis supplied), as the case may be, is satisfied that

the larger public interest justifies the disclosure of such

information.

W.A.1163 &1164 of 2022

12. Therefore, it can be seen that the nature of the

personal information is clearly spelt out in Section 8(1)(j).

Karthiyayani never had a case that any document was called for

from her by any of the authorities including the Appellate

Authority. In fact, the order passed by the State Commission

makes it very clear and explicit that if the files are missing from

the office of the authority concerned, it is to be retrieved within

a period of 20 days from the date of receipt of the order in

question and further directions are issued for taking action

against the concerned officers.

13. In our considered opinion, while considering the appeal,

the State Commission need only issue a notice to the third party

in contemplation of Sub-section (4) of Section 19 if in the appeal

preferred, information is relating to a third party, and in that

eventuality alone, an opportunity of hearing be provided as per

the provisions of Section 11 as well as Section 19(4) of Act, 2005.

That is to say, merely because the third party has secured an

order from a public authority and when a person seeks

information from the State Information Officer, or being

aggrieved by any order, prefer an appeal, the Information Officer W.A.1163 &1164 of 2022

or the Appellate Authority need not issue a notice to the third

party, and hear the third party since the proceedings issued by

the public authority is in the files of the said authority and no

document need be called for from the third party to provide

information from the files of the public authority.

14. That apart, on a reading of Sub-section (4) of Section

19, it is clear that a notice need be issued to a third party if the

appeal preferred relates to information of a third party. As we

have pointed out, there is no case for Karthiyayani that in the

application filed by the appellant any personal information of

Karthiyayani is sought for.

15. That apart, going by the scheme and the provisions of

the Act, it is clear that the objective of the Act 2005 is to provide

information to any citizen in order to promote transparency and

accountability in the working of every public authority, which is a

paramount component in a democratic process; and therefore, a

document issued by a public authority to a third person can never

be said to be a personal information or a confidential information

of a third party, thus compelling the Information Officer and the

Appellate Authority to provide a notice of hearing to a third party W.A.1163 &1164 of 2022

when a copy of the order/permit, or other documents issued by a

public authority, is sought for by any citizen.

16. Thus, considering the issues so, we are of the definite

opinion that the judgment of learned Single Judge quashing the

proceedings of the State Information Commission dated

21.4.2017 requires interference. Accordingly, we set aside the

judgment of the learned Single Judge in W.P(C). No.7699 of 2022.

17. In W.P(C).No.27429 of 2020 filed by the appellant, he has

sought for implementation of the order of the State Commission

dated 21.4.2017. In view of the interference made by us to the

judgment, in the connected writ petition filed by Karthiyayani, we

are of the opinion that the relief sought for in W.P(C).No.27429

of 2020, filed by the appellant is to be allowed; since the learned

Single Judge has held that in view of the directions issued in the

writ petition filed by Karthiyayani, the writ petition filed by the

appellant has become redundant, and accordingly W.A.No.1164

of 2022 filed by the appellant is to be allowed. Therefore, the

appeals are allowed and the common judgment of learned Single

Judge in the writ petitions are set aside. Consequently, there will

be a direction to the District Collector, Thrissur- respondent in W.A.1163 &1164 of 2022

the appeals to comply with the directions contained in the order

of the State Commission dated 21.4.2017 without fail, at the

earliest and at any rate within a period of four weeks from the

date of receipt of a copy of this judgment.

Sd/-

S. Manikumar, Chief Justice

Sd/-

Shaji P. Chaly, Judge sou.