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2017 DIGILAW 1575 (ALL)

HAR PAL SINGH v. STATE OF U. P.

2017-07-03

NARAYAN SHUKLA, VIRENDRA KUMAR II

body2017
JUDGMENT Hon’ble Virendra Kumar-II, J.—This writ petition has been instituted assailing impugned order dated 15.10.2014 passed by State Information Officer, U.P./opposite party No. 3 whereby Second Appeal No. S-3/552/C/2010 preferred by petitioner alongwith a group of total number of 103 second appeals/complaints clubbed together. It is argued by learned counsel for petitioner that despite repeated protest on behalf of petitioner these appeals were finally heard and disposed of. 2. It is submitted that the erroneous finding of fact has been recorded with utter cryptic manners as well as against inaction on the part of opposite party No. 1 and 11 while proceedings under Section 17 of the Right to Information Act, 2005 (hereinafter referred to as ‘RTI Act’). 3. It is contended on behalf of petitioner that informations were sought from the concerned authorities by the petitioner in different matters. If the informations would have provided, it would have inter alia exposed corruptions and financial irregularities within department of Irrigation, as well as, in the office of Engineer-in-Chief, Irrigation and Water Resources. It is also submitted that information sought is covered under the RTI Act and none of the information falls within exemption contained in Sections 8 and 9 or any other provisions of RTI Act. The petitioner made all efforts by making representation dated 9.2.2016 under Section 17 RTI Act forwarded to his Excellency Hon’ble Governor of State of U.P. to expose corruption prevailed in the working of office of opposite party No. 11. No information have been provided as yet to the petitioner. However, opposite party No. 10 is justifying destructions of application under Section 17 of the RTI Act to prevent Hon’ble Governor of the State of U.P. to notice, initiate or take action, is offence under Sections 175, 204, 466 and Section 34 read with Section 120 and 120-B I.P.C. The representation dated 9.2.2016 under Section 17 of RTI Act has been received by opposite parties, which can be demonstrated by records produced by them with letter dated 6.4.2017 in reply to submission of petitioner dated 30.1.2017. On the basis of above-mentioned facts, following reliefs have been sought by the petitioner : “i) to issue a writ, order(s) or direction(s) of or in the nature of certiorari quashing the impugned order-dated 15.10.2014, passed by the opposite party No. 3, contained in Annexure 1 to this writ petition; ii) to issue a writ, order(s) or direction(s) of or in the nature of mandamus commanding Opposite Party No. 1 and 11, to the proceeding under Section 11 in motion as well as to setup an Inquiry against, the learned Opposite Party No. 3 in respect of allegations leveled by the petitioner by means of applications/representations under Section 17 of the RTI Act. iii) to issue a writ, order(s) or direction(s) of or in the nature of mandamus commanding Opposite Party No. 1, to setup an Inquiry against the registry of the Opposite Party No. 2, in respect of (a) Misplaced complaint/appeal S-3-3505/C/2009, is missing, but the Opposite Party No. 3 has ignored the non-availability of this very important fact (b) delay of more than year in supplying copy of the orders passed in Second Appeal/Complaint No. S-3-552/C/2010 by Opposite Party No. 3 in respect of the including impugned order dated 15.10.2014. iv) to issue writ, order(s) or direction(s) of or in the nature of mandamus commanding the opposite parties to furnish the correct information to the petitioner within such time as this Hon’ble Court deems fit and appropriate in the facts and circumstances of the case; v) to issue a writ, order(s) or direction(s) of or in the nature of mandamus commanding Opposite Party No. 1, 8 and 11, to setup an Inquiry in respect of information asked and in respect of what corruptions and financial irregularity are involved into the information sought, within Department of Irrigation as well as within the office of Engineer in Chief, Irrigation and Water Resources. vi) to issue order or direction(s) imposing penalty under Section 20 of the RTI Action the opposite parties for abdicating to proceed in accordance with the RTI Act and the Rules framed thereunder, as also for furnishing incorrect and incomplete information to the petitioner; vii) to issue a writ, order or direction in the nature of quo qarranto to the Uttar Pradesh State Information Commission, that under what authority they are charing fee for supply of orders from information seekers at the Complaint and Appellate stage when the mandate of parliament is otherwise. viii) to issue a writ, order or direction in the nature of quo warranto to the Uttar Pradesh State Information Commission, that under what authority the executive order dated 15.2.2017 has been issued when the mandate of parliament is otherwise. ix) to issue a writ, order or direction in the nature of mandamus commanding the Registry of the opposite party, to start provision of interim and final orders to the complainant(s) and/or Appellant(s) through registered/speed post without charging any cost and if required it may be charged from State Public Information Officer(s); x) to issue writ, order or direction in the nature of mandmus commanding the Registry of the Uttar Pradesh State Information Commission, to uploaded the orders of the Commission immediately after orders are passed and signed on the website of commission.” 4. We have heard learned counsel for petitioner, learned Chief Standing Counsel and perused the record and impugned order dated 15.10.2014 passed by State Information Commissioner/opposite party No. 3. 5. During hearing of second appeal, it was found that petitioner had filed 103 complaints relating to Irrigation Department in which he was employed. The retiral benefits were not paid by the Department to the petitioner, therefore, he was seeking regular informations from his erstwhile department. Therefore, all the second appeals were clubbed and heard by the State Information Commissioner and impugned order dated 15.10.2014 was passed. 6. On perusal of record of 102 matters in which informations were sought by the petitioner, all the informations were given to him and none of the matter was pending. It was also found that petitioner may seek proper relief regarding payment of his retiral benefits before the competent forum. 7. 6. On perusal of record of 102 matters in which informations were sought by the petitioner, all the informations were given to him and none of the matter was pending. It was also found that petitioner may seek proper relief regarding payment of his retiral benefits before the competent forum. 7. On perusal of impugned order dated 15.10.2014, it revealed that the petitioner applied on 28.7.2016 for obtaining certified copy of impugned judgment, which was supplied to him on 20.10.2016. Therefore, this writ petition has been filed with delay of two years, eight months and 12 days. The latches and delay for filing this writ petition is apparent on the basis of certificate appended on the certified copy of impugned order dated 15.10.2014. 8. It is also pertinent to mention here that the petitioner was given opportunity of hearing during the proceedings of above-mentioned second appeals. Therefore, he had personal knowledge of passing impugned order dated 15.10.2014, even then delayed petition has been filed on behalf of petitioner. 9. Learned counsel for petitioner has submitted that copy of impugned judgment was supplied to him delayed, therefore this petition was filed after getting information about the impugned judgment. Whereas learned Standing Counsel has opposed by arguing that the petitioner himself has applied on 28.7.2016 for issuing certified copy of impugned judgment. 10. The State Information Commissioner has heard second appeals in presence of the petitioner, therefore, he had personal knowledge about pronouncement of impugned judgment. He has himself delayed filing of this writ petition. Therefore, this writ petition is not maintainable due to omission and latches on the part of the petitioner. 11. Hon’ble Apex Court in the case of New Delhi Municipal Council v. Pan Singh and others, (2007) 9 SCC 278 , has observed in paragraph nos 16, 17 and 18 as under : 16. There is another aspect of the matter which cannot be lost sight of. Respondents herein filed a Writ Petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. Respondents herein filed a Writ Petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were employed or who were recruited after the cut-off date have been granted the said scale of pay. After such a long time, therefore, the Writ Petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the Court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction. See Government of W.B. v. Tarun K. Roy and others, (2004) ILLJ 421 SC, Chairman, U.P. Jal Nigam and another v. Jaswant Singh and another, (2007) IILLJ 17 SC and Karnataka Power Corporation Ltd. through its Chairman and Managing Director and another v. K. Thangappan and another, (2006) IILLJ 421 SC 17. Although, there is no period of limitation provided for filing a Writ Petition under Article 226 of the Constitution of India, ordinarily, Writ Petition should be filed within a reasonable time. See Lipton India Ltd. and others v. Union of India and others, (1994) 6 SCC 524 , M.R. Gupta v. Union of India and others, AIR 1996 SC 669 . 18. In Shiv Dass v. Union of India and others, (2007) IILLJ 212 SC, this Court held: 9. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Raja Lakshmiah v. State of Mysore. There is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. Sri Pyarimohan Samantaray, AIR 1976 SC 2617 , making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. See State of Orissa v. Arun Kumar, AIR 1976 SC 1639 , also). 10. In State of Orissa v. Sri Pyarimohan Samantaray, AIR 1976 SC 2617 , making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. See State of Orissa v. Arun Kumar, AIR 1976 SC 1639 , also). 10. In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. It would depend upon the fact of each case. If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years. The High Court did not examine whether on merit appellant had a case. If on merits it would have found that there was no scope for interference, it would have dismissed the writ petition on that score alone. 12. In Virender Chaudhary v. Bharat Petroleum Corporation and others, (2009)1 SCC 297 , Hon’ble Supreme Court has held in paragraph Nos. 16, 17, 18 and 19 as under : (16). In Uttaranchal Forest Development Corporation and another v. Jabar Singh and others, (2007) IILLJ 95 SC, this Court held: It is not in dispute that the effective alternative remedy was not availed of by many of the workmen as detailed in paragraphs supra. The termination order was made in the year 1995 and the writ petitions were admittedly field in the year 2005 after a delay of 10 years. The High Court, in our opinion, was not justified in entertaining the writ petition on the ground that the petition has been filed after a delay of 10 years and that the writ petitions should have been dismissed by the High Court on the ground of latches. 17. In New Delhi Municipal Council v. Pan Singh and others, AIR 2007 SC 1365 , this Court held: 16. There is another aspect of the matter which cannot be lost sight of. The respondents herein filed a writ petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. The respondents herein filed a writ petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were employed or who were recruited after the cut-off date have been granted the said scale of pay. After such a long time, therefore, the writ petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the Court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction. See Government of W.B. v. Tarun K. Roy; U.P. Jal Nigam v. Jaswant Singh and Karnataka Power Corporation Ltd. v. K. Thangappan. 17. Although, there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, ordinarily, writ petition should be filed within a reasonable time. (See Lipton India Ltd. v. Union of India and M.R. Gupta v. Union of India.) 18. In Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel and others, 2006 (33) PTC 281 (SC), it was held: Acquiescence is sitting by, when another is invading the rights and spending money on it. It is a course of conduct inconsistent with the claim for exclusive rights for trade mark, trade name, etc. 19. Recently in Khoday Distilleries Limited (Now known as Khoday India Ltd.) v. The Scotch Whisky Association and others, MIPR 2008 (2) 253, this Court applied the principle of waiver and acquiescence being a case involving equity and justice. Conduct of the parties has also been considered to be a ground for attracting the doctrine of estoppel by acquiescence or waiver. 13. In C. Jacob v. Director of Geology and Mining, (2008) 10 SCC 115 , Hon’ble Apex Court in paragraph Nos. 9, 10 and 11 has held as under: 9. The Courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly, they assume that a mere direction to consider and dispose of the representation does not involve any “decision” on rights and obligations of parties. 9, 10 and 11 has held as under: 9. The Courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly, they assume that a mere direction to consider and dispose of the representation does not involve any “decision” on rights and obligations of parties. Little do they realise the consequences of such a direction to “consider”. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to “consider”. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored. 10. Every representation to the Government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the Department, the reply may be only to inform that the matter did not concern the Department or to inform the appropriate Department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim. 11. When a direction is issued by a Court/tribunal to consider or deal with the representation, usually the directee (person directed) examines the matter on merits, being under the impression that failure to do so may amount to disobedience. When an order is passed considering and rejecting the claim or representation, in compliance with direction of the Court or tribunal, such an order does not revive the stale claim, nor amount to some kind of “acknowledgement of a jural relationship” to give rise to a fresh cause of action. 14. When an order is passed considering and rejecting the claim or representation, in compliance with direction of the Court or tribunal, such an order does not revive the stale claim, nor amount to some kind of “acknowledgement of a jural relationship” to give rise to a fresh cause of action. 14. In United Bank of India v. Satyawati Tondon and others, (2010) 8 SCC 110 , Hon’ble Apex Court has held as under : 52. In City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala and others, (2009) 1 SCC 168 , the Court highlighted the parameters which are required to be kept in view by the High Court while exercising jurisdiction under Article 226 of the Constitution. Paragraphs 29 and 30 of that judgment which contain the views of this Court read as under: 29. In our opinion, the High Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution is duty-bound to take all the relevant facts and circumstances into consideration and decide for itself even in the absence of proper affidavits from the State and its instrumentalities as to whether any case at all is made out requiring its interference on the basis of the material made available on record. There is nothing like issuing an ex parte writ of mandamus, order or direction in a public law remedy. Further, while considering the validity of impugned action or inaction the Court will not consider itself restricted to the pleadings of the State but would be free to satisfy itself whether any case as such is made out by a person invoking its extraordinary jurisdiction under Article 226 of the Constitution. 30. The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether: (a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved; (b) the petition reveals all material facts; (c) the petitioner has any alternative or effective remedy for the resolution of the dispute; (d) person invoking the jurisdiction is guilty of unexplained delay and laches; (e) ex facie barred by any laws of limitation; (f) grant of relief is against public policy or barred by any valid law; and host of other factors. The Court in appropriate cases in its discretion may direct the State or its instrumentalities as the case may be to file proper affidavits placing all the relevant facts truly and accurately for the consideration of the Court and particularly in cases where public revenue and public interest are involved. Such directions are always required to be complied with by the State. No relief could be granted in a public law remedy as a matter of course only on the ground that the State did not file its counter-affidavit opposing the writ petition. Further, empty and self-defeating affidavits or statements of Government spokesmen by themselves do not form basis to grant any relief to a person in a public law remedy to which he is not otherwise entitled to in law. 15. In Pundlik Jalam Patil (D) by Lrs. v. Exe. Eng. Jalgaon Medium Project and another, (2008) 17 SCC 448 , Hon’ble Apex Court in paragrpah No. 17 has held as under : 17.....The evidence on record suggest neglect of its own right for long time in preferring appeals. The Court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Court helps those who are vigilant and ‘do not slumber over their rights.’ 16. Division Bench of this Court in Case MISC. BENCH No. 8178 of 2012 (Dhani Ram v. State of U.P. Thr. Prin. Secy. Deptt. Of Revenue, Lucknow and others) has considered various precedent and observed in para 16 to 25 as under : 16. Similar view has been reiterated in State of Rajasthan and others v. D.R. Laxmi and others, (1996) 6 SCC 445 , wherein the Apex Court has held that even the void proceedings need not be set at naught if the party has not approached the Court within reasonable time, as judicial review is not permissible at a belated stage. 17. In Hindustan Petroleum Corporation v. Dolly Das, (1999) 4 SCC 450 , the Apex Court held as under : “So far as the contention regarding laches of the respondents in filing the writ petition is concerned, delay, by itself, may not defeat the claim for relief unless the position of payment had been so altered which cannot be retracted on account of lapse of time or inaction of the other party. This aspect, being dependant upon the examination of the facts of the case and such a contention not having been raised before the High Court, it would not be appropriate to allow the appellants to raise such a contention for the first time before us. Besides, where the mode is that the period for which the option of renewal has been exercised, has not come to an end. During the subsistence of such a period, certainly the respondents could make a complaint that such exercise of option was not available to the appellants and, therefore, the jurisdiction of the High Court could be invoked even at a later stage. Further, the appellants are not put to undue hardship in any manner by reason of this delay in approaching the High Court for a relief.” 18. Similar view has been reiterated by the Hon’ble Supreme Court in Northern Indian Glass Industries v. Jaswant Singh, AIR 2003 SC 234 ; and Haryana State Handloom & Handicrafts Corporation Ltd. v. Jain School Society, AIR 2004 SC 850. 19. If some person has taken a relief from this Court by filing a Writ Petition immediately after the cause of action had arisen, petitioners cannot take the benefit thereof by filing a writ petition belatedly. They cannot take any benefit thereof at such a belated stage for the reason that they cannot be permitted to take the impetus of the order passed at the behest of some diligent person. 20. In State of Karnataka and others v. S.M. Kotrayaya and others, (1996) 6 SCC 267 , the Hon’ble Supreme Court rejected the contention that a petition should be considered ignoring the delay and laches on the ground that he filed the petition just after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. The Court observed that such a plea is wholly unjustified and cannot furnish any ground for ignoring delay and laches. 21. Same view has been reiterated by the Hon’ble Supreme Court in Jagdish Lal and others v. State of Haryana and others, AIR 1997 SC 2366 , observing as under: “Suffice it to state that appellants may be sleeping over their rights for long and elected to wake-up when they had impetus from Veerpal Chauhan and Ajit Singh’s ratio.... 21. Same view has been reiterated by the Hon’ble Supreme Court in Jagdish Lal and others v. State of Haryana and others, AIR 1997 SC 2366 , observing as under: “Suffice it to state that appellants may be sleeping over their rights for long and elected to wake-up when they had impetus from Veerpal Chauhan and Ajit Singh’s ratio.... disparate attempts of the appellants to re-do the seniority, held by them in various cadre.... are not amenable to the judicial review at this belated stage. The High Court, therefore, has rightly dismissed the writ petition on the ground of delay as well.” 22. In M/s. Roop Diamonds and others v. Union of India and others, 1989 SC 674, the Hon’ble Supreme Court considered a case where petitioner wanted to get the relief on the basis of the judgment of the Supreme Court wherein a particular law had been declared ultra vires. The Court rejected the petition on the ground of delay and latches observing as under : “There is one more ground which basically sets the present case apart. Petitioners are re-agitating claims which they have not persued for several years. Petitioners were not vigilant but were content to be dormant and close to sit on the fence till somebody else’s case came to be decided.” 23. The issue of delay in filing the writ petition was considered by the Hon’ble Apex Court in Smt. Sudama Devi v. Commissioner and others, (1983) 2 SCC 1 , wherein the Apex Court has observed as under : “There is no period of limitation prescribed by any law for filing the writ petition under Article 226 of the Constitution. It is, in fact, doubtful whether any such period of limitation can be prescribed by law. In any event, one thing is clear and beyond doubt that no such period of limitation can be laid down either under the rules made by the High Court or by practice. For every case, it would have to be decided on the facts and circumstances whether the petitioner is guilty of laches and that would have to be done without taking into account any specific period as period of limitation. There may be cases where even short delay may be fatal while there may be cases where even a long delay may not be evidence of laches on the part of the petitioner.” 24. There may be cases where even short delay may be fatal while there may be cases where even a long delay may not be evidence of laches on the part of the petitioner.” 24. Similarly, in State of U.P. v. Raj Bahadur Singh and another, (1998) 8 SCC 685 ; the Hon’ble Apex Court held that “there is no time limit for filing the writ petition. All that the Court has to see is whether the laches on the part of the petitioner are such as to disentitle him to the relief claimed by him.” 25. In Northern Indian Glass Industries v. Jaswant Singh and others, AIR 2003 SC 234 , the Hon’ble Apex Court held that the High Court cannot ignore the delay and laches in approaching the writ Court and there must be satisfactory explanation by the petitioner as how he could not come to the Court well in time. A similar view has been reiterated by the Hon’ble Supreme Court in Printers (Mysore) Ltd. v. M.A. Rasheed and another, (2004) 4 SCC 460 , the Hon’ble Supreme Court held that the High Court should have dismissed the writ petition on the ground of delay and laches. 17. In view of the aforesaid discussion and exposition of law in these precedents, this writ petition devoid of merits and also due to latches and delay caused by the petitioner, he is not entitled to any relief. 18. This writ petition is dismissed, accordingly.