Kerala High Court

B.S.Jayakumar vs The State Chief Information ... on 24 June, 2022

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
         THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
     FRIDAY, THE 24TH DAY OF JUNE 2022 / 3RD ASHADA, 1944
                      WP(C) NO. 21205 OF 2012


PETITIONER:

          B.S.JAYAKUMAR
          AGED 55 YEARS
          S/O.BHASKARAN NAIR,
          SUPERINTENDING ENGINEER,
          THRISSUR CORPORATION,
          THRISSUR
          BY ADVS.
          SRI.K.K.CHANDRAN PILLAI (SR.)
          SRI.ARUN ANTONY
          SRI.R.ANAS MUHAMMED SHAMNAD
          SRI.BOBBY THOMAS
          SRI.A.S.SAJUSH PAUL
          SRI.THOMAS JAMES MUNDACKAL


RESPONDENTS:



    1     THE STATE CHIEF INFORMATION COMMISSIONER
          OFFICE OF THE CHIEF INFORMATION COMMISSIONER,
          THIRUVANANTHAPURAM-695001


    2     THE SECRETARY
          THIRUVANANTHAPURAM CORPORATION,
          THIRUVANANTHAPURAM-695001


    3     MR.S.SREEKANTHAN TC 401087 PGRA -23
          PANCHAMI GARDENS
          JAGATHY,
          THIRUVANANTHAPURAM-695014


    4     THE STATE OF KERALA
          REP.BY THE CHIEF SECRETARY,
          GOVERNMENT SECRETARIAT,
          THIRUVANANTHAPURAM-695001
 WP(C)No. 21205 of 2012
                                 2



     5       THE THRISSUR CORPORATION
             REP.BY ITS SECRETARY,
             THRISSUR-680001
             BY ADVS.
             SRI.P.K.MANOJKUMAR
             SRI.N.NANDAKUMARA MENON SR.
             SRI. SANTHOSH P.PODUVAL, SC, THRISSUR
             CORPORATION



      THIS    WRIT   PETITION   (CIVIL)   HAVING   COME   UP   FOR
ADMISSION ON 20.06.2022, THE COURT ON 24.06.2022 DELIVERED
THE FOLLOWING:
 WP(C)No. 21205 of 2012
                                     3



                       MOHAMMED NIAS. C.P.,J
                    ------------------------
                       WP(C)No. 21205 of 2012
                    ------------------------
                  Dated this the 24th day of June, 2022

                            JUDGMENT

The petitioner while working as the Superintending Engineer

in the second respondent Corporation, also acting as the State Public

Information Officer under the Right to Information Act, 2005

(hereinafter referred to as 'the Act') received an application dated

23.03.2011 (Ext.P1) from the third respondent herein asking whether

permission is required for putting up a church and whether any

permission has been given for putting up a church (Alice Devadas

Memorial CSI Church) at Jagathy, Thiruvananthapuram District, close

to the petitioner's residence and if granted, copies of the same were

sought. Since no information was furnished by the third respondent

to the petitioner, he moved the first appellate authority on 25.04.2011

(Ext.P2). Notice of the said appeal dated 28.05.2011 was served on

the petitioner on 31.05.2011 and the petitioner gave a reply dated

6.5.2011 answering the first question and stating that since the

building in question is more than 15 years old, it is not possible to

find out whether permit for the construction activities had been

granted and that a reply would be sent after obtaining the requisite

information from the records.

WP(C)No. 21205 of 2012

2. The third respondent, the applicant not satisfied with the

reply, moved the State Information Commission. On receipt of notice

in the second appeal, the Corporation gave a reply stating that there

was a direction given to the overseer on 30.03.2011 for conducting a

physical inspection of the church in question, but since it was

remaining closed, details could not be got and therefore on enquiry

with the neighours, information was got and a reply was given to the

applicant as aforesaid. The petitioner was transferred to Thrissur

Corporation on 16.7.2011 and the successor in office had given a

reply to the first respondent-Commissioner on 12.05.2011 on similar

lines as Ext.P6 reply. The first respondent considered the appeal on

19.4.2012 and on the same day the Corporation had furnished a reply

to the third respondent stating that from the registers in the

Corporation, it is seen that no permission was granted for

constructing a church and that no number has been assigned to the

building in question and thus a reply was delivered to the petitioner

on 20.04.2011.

3. Earlier the successor in office of the petitioner had given

a reply as Ext.P9 before the Commissioner pointing out that he had

taken charge on 3.10.2011 and that there were several works that

had to be completed before March 31st of the said year and the

Corporation had more than 100 Wards and because of the pressure of

work and also the work of giving replies in the cases pending before WP(C)No. 21205 of 2012

the High Court, Ombudsman, Tribunals, the Human Right

Commission, etc., that there was delay in responding to the

application of the third respondent. The Commission issued yet

another notice on 28.4.2012 holding that there was delay in giving a

reply warranting action under Section 20 of the Act and explanation

was sought for from the petitioner. The petitioner responded to

Ext.P1 stating that though the petitioner had forwarded the

application immediately after its receipt, the physical inspection took

some time as the church was closed and the details had to be

collected from the neighbour's and the fact that there was no

documents available with respect to the construction with the

Corporation, was intimated to the third respondent on 10.05.2011. It

was specifically stated in the reply that it was for want of documents

at the relevant time that resulted in the delay in giving to the reply to

the information sought.

4. By Ext.P12 the State Information Commissioner passed

an order holding that there is a delay of almost one year and that

the reasons given by the petitioner herein that there was delay in

getting information from the officer, who was asked to collect

documents and that no documents were available with the

Corporation office pertaining to the question sought, were not

accepted. Rejecting such contentions, a penalty of an amount of

Rs.10,000/- was imposed by Ext.P12. The petitioner submits that he WP(C)No. 21205 of 2012

came to know about the same only when he received notice from the

department. It is also submitted that he was not heard before passing

Ext.P12 as no chance of personal hearing was given after he

submitted a reply (Ext.P11). The petitioner therefore challenges

Exts.P12 and P13.

5. I have heard Sri.K.K.Chandran Pillai, the learned senior

counsel for the petitioner, Sri.M.Ajay, the learned counsel for the first

respondent and Sri.N.Nanda Kumara Menon, the learned senior

counsel for the second respondent-Corporation.

6. The learned senior counsel argues that he had on receipt

of Ext.P1 application sought information from the person concerned,

invoking Section 5(4) of the Act. The application was received on

24.3.2011 and this was done on 30.03.2011 itself. The learned senior

counsel further contends that since no particular details were given

about the church in question it was difficult to find out from any

search and the delay caused was not deliberate. He also cited

pressure of work as a reason for not sending a reply within time and

further contends that he was transferred to Thrissur Corporation on

16.7.2011, before which time itself Ext.P4 was sent on 6.5.2011. He

submits that since a reply had already been given under Ext.P4 it

cannot be said that the petitioner had not responded to the question WP(C)No. 21205 of 2012

and the Act does not speak of the manner in which a reply has to be

given. It is his further argument that since no deliberate act occurred

on the part of the petitioner and it was only a case of non-availability

of register at the relevant time that the delay was caused. The

learned senior counsel also contended that physical inspection had to

be carried out for want of specific details and all these reasons

contributed to the delay.

7. Sri.M.Ajay, the learned counsel appearing for the State

Information Commission submits that there is no case anywhere on

the side of the petitioner that the files were missing and the

explanation that for want of details, physical inspection had to be

conducted cannot be accepted at all, since there were no complicated

questions that were put and even the first reply came only after the

filing of the appeal before the first appellate authority. Learned

counsel criticizes the act of the petitioner in issuing Ext.P3, where

questions were put back to the applicant which should not have been

done. He also argues that notice was issued proposing penalty and it

was after receiving a reply from the petitioner that Ext.P12 order was

passed. The reasons furnished by the petitioner were not found to be

acceptable and despite the same leniency was shown and only

Rs.10,000/- was imposed when as a matter of fact the maximum

penalty of Rs.25,000/- ought to have been mulcted. WP(C)No. 21205 of 2012

8. After considering the rival contentions and perusing the

documents, I find considerable force in the arguments of Sri.M.Ajay

that the reasons for the delay are not all that convincing. It is

pertinent to point out that to answer the first query sought for by the

third respondent herein, no time at all was needed as the question

was whether permission was required for constructing a church.

Even for the second query viz., whether any permission has been

granted to the church in question and if so to serve copies of the

same, the petitioner should not have taken as much time as he

ultimately took to reply. The Corporation is bound to have in its

custody the details, registers showing the grant of permits, sanctions,

occupancy certificate, numbering of buildings. The delay in

furnishing reply defeat the very purpose for which the Act is brought

in.

9. Though I notice that the reasons for not giving the reply

in time are not all that satisfactory, considering the fact that the

petitioner had sought the aid of other staff in the Corporation for

giving a reply, shortly, after the receipt of the questions and the fact

that he was transferred to Thrissur Corporation on 16.7.2011 and

that information was furnished to the third respondent on the same

day on which the State Information Commissioner directed. I also

notice that it will be difficult for any Corporation or local body to find

out whether a permission was granted to a particular building from WP(C)No. 21205 of 2012

the registers per se as neither the year of completion nor any

relevant number or any details specifically pointing to the exact

location of the property were shown in the application except stating

that it was a church near to his residence, the address of which was

shown by the petitioner. I also take into account the fact that the

petitioner had since retired from service. As a measure of leniency

and indulgence and going by the requirements to be met for imposing

a penalty, I deem it fit to set aside that part of the order which directs

payment of Rs.10,000/- as penalty.

9. For the reasons mentioned above, I set aside Ext.P12

and P13 and I hold that the imposing of penalty of Rs.10,000/- is not

warranted in the peculiar facts and circumstances of the case.

Accordingly, I allow the writ petition and quash Exts.P12 and P13

orders in so far it directs the petitioner to pay penalty amount of

Rs.10,000/-.

The writ petition is allowed as above.

Sd/-

MOHAMMED NIAS. C.P.,JUDGE.

APPENDIX OF WP(C) 21205/2012

PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF APPLICATION FILED BY THE 3RD RESPONDENT BEFORE THE 2ND RESPONDENT DATED 23.03.2011 Exhibit P2 TRUE COPY THE APPEAL FILED BEFORE THE SECRETARY OF THE 2ND RESPONDENT DATED 25.4.2011 Exhibit P3 TRUE COPY OF THE NOTE GIVEN TO THE APPELLATE AUTHORITY DATED 28.5.2011 BY THE PETITIONER.

Exhibit P4 TRUE COPY OF THE REPLY GIVEN BY THE PETITIONER DATED 6.5.2011 TO THE 3RD RESPONDENT.

EXHIBIT P5 TRUE COPY OF REPLY DATED 25.6.2011 GIVEN IST RESPONDENT BY THE PETITIONER.

EXHIBIT P6 TRUE COPY OF THE REPORT SUBMITTED BY THE SECRETARY OF THE 2ND RESPONDENT DATED 31.12.2011 TO THE IST RESPONDENT.

EXHIBIT P7 TRUE COPY OF ANOTHER REPORT SUBMITTED BEFORE THE IST RESPONDENT BY THE SECRETARY OF THE 2ND RESPONDENT DATED 12.4.2012.

EXHIBIT P8 TRUE COPY OF ANOTHER REPORT DATED 19.4.2012 SUBMITTED BEFORE THE IST RESPONDENT BY THE SECRETARY OF THE 2ND RESPONDENT.

EXHIBIT P9 TRUE COPY OF A REPORT DATED 19.4.2012 SUBMITTED BEFORE THE IST RESPONDENT BY THE SECRETARY OF THE 2ND RESPONDENT SHOWING THE REASON FOR DELAY IN REPLY.

EXHIBIT P10 TRUE COPY OF SHOW CAUSE NOTICE ISSUED TO THE PETITIONER DATED 28.4.2012 EXHIBIT P11 TRUE COPY OF COVERING LETTER DATED 15.5.2012 FOR SENDING EXT.P11(A) TO THE IST RESPONDNET.

BEFORE THE IST RESPONDENT BY THE PETITIONER.

EXHIBIT P12 TRUE COPY OF THE ORDER ISSUED BY THE IST RESPONDENT DATED 31.5.2012 EXHIBIT P13 TRUE COPY OF COMMUNICATION DATED 2.7.2012 RECEIVED FROM THE 5TH RESPONDENT.

EXHIBIT 13(A) TRUE COPY OFLETTER DATED 21.6.2012 RECEIVED BY THE PETITIONER ALONG WITH EXT.P13 EXHIBIT P14 TRUE COPY OF LETTER ADDRESSED TO THE 5TH RESPONDENT DATED NIL.