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Gujarat High Court · body

2019 DIGILAW 1114 (GUJ)

Nitinbhai Ghelabhai Hirpara v. State of Gujarat

2019-12-05

BHARGAV D.KARIA

body2019
ORDER : 1. By way of this petition under Articles 226 and 227 of the Constitution of India, petitioner has prayed for the following reliefs: “(A) Your Lordships may be pleased to admit and allow this petition. (B) Your Lordships may be pleased to allow this petition by issuing appropriate writ, order or direction, in the nature of writ of mandamus or any other appropriate writ, order or direction and thereby be pleased to direct Respondent No. 3 to provide documents with regards to amalgamation of Survey No. 363 paiki, 2 Khata No. 337 and be further pleased to quash and set aside the communication letter dated 1.11.2017, Annex. D in the interest of justice. (C) Your Lordships may be pleased to further direct the respondent No. 2 to initiate departmental proceedings against respondent No. 3 for the reasons stated in this petition. (D) Your Lordships may be pleased to direct the respondent No. 3 not to mismanage any of the documents related to the land Survey No. 363 paiki 2, Khata No. 3377, pending in the Revenue Record of Mamlatdar Office, till admission and final disposal of this writ petition. (E) Your Lordships may be pleased to grant any other and further relief which may fit, looking to the circumstances of the present granted in the interest of justice.” 2. The short facts of the present case are that the petitioner made an application on 05.05.2016 under the provisions of Right to Information Act, 2005 (hereinafter referred to as ‘the Act’). The petitioner sought details with regard to revenue record of land of Survey No. 363 paiki 2 situated at Upleta, as the petitioner came to know that one Bhikhabhai Bhovanbhai Bera has covered land of the petitioner in his own land by creating some procedure in Revenue Department. 3. It is the case of the petitioner that even after one month from the date of submission of application, respondent no. 3-Public Information Officer and Mamlatdar, Upleta did not provide any information. The petitioner therefore, preferred First Appeal on 27.06.2016 being I.D. Appeal No. 25 of 2016. The First Appellate Authority-respondent no. 2, by order dated 30.07.2016, partly allowed the appeal of the petitioner directing respondent no. 3-Mamlatdar, Upleta to provide information sought in application dated 05.05.2016 within 10 days from the date of receipt of the order. 4. The petitioner therefore, preferred First Appeal on 27.06.2016 being I.D. Appeal No. 25 of 2016. The First Appellate Authority-respondent no. 2, by order dated 30.07.2016, partly allowed the appeal of the petitioner directing respondent no. 3-Mamlatdar, Upleta to provide information sought in application dated 05.05.2016 within 10 days from the date of receipt of the order. 4. It is the case of the petitioner that even after the order passed by the First Appellate Authority, respondent no. 3 did not provide the information. 5. The petitioner thereafter, filed Second Appeal before the State Information Commission, Gandhinagar being Appeal No. 6341 of 2016. The State Information Commissioner, by order dated 19.09.2017, directed the respondent no. 3 to provide information as required by the petitioner in his application dated 05.05.2016 as available on record, after taking into consideration the submission of the respondent no. 3 that some of the information, available on record, is already supplied to the petitioner. 6. The respondent no. 3, by letter dated 01.11.2017, informed the petitioner that the record pertaining to amalgamation of the land of Survey No. 363 paiki 2, situated at Upleta is not available and therefore, the information as required by the petitioner cannot be given. 7. It was further informed to the petitioner that efforts are going on to find out relevant papers and documents and if, the petitioner is willing to take inspection of the record available with the respondent no. 3, he may approach respondent no. 3 for the purpose of inspection. 8. The petitioner therefore, challenged the impugned action on the part of respondent no. 3 for not complying with the orders passed by the First Appellate Authority as well as State Information Commission by preferring this petition. 9. Heard learned advocate Mr. Nishith P. Thakkar for the petitioner and learned Assistant Government Pleader, Mr. Dhawan Jayswal for the respondents. 10. Learned advocate for the petitioner submitted that the respondent no. 3 is bound to supply information as ordered by the First Appellate Authority as well as State Information Commission. He submitted that if the record is not available with the respondent no. 3, respondent no. 3 is answerable as he is required to maintain record being Officer of the Revenue Department, State of Gujarat and therefore, he is duty bound to maintain revenue record and produce the same on demand, by the higher authority. 11. He submitted that if the record is not available with the respondent no. 3, respondent no. 3 is answerable as he is required to maintain record being Officer of the Revenue Department, State of Gujarat and therefore, he is duty bound to maintain revenue record and produce the same on demand, by the higher authority. 11. It was also submitted that in the facts of the case, by not providing information to the petitioner, respondent no. 3 has committed dereliction of official duty, which is legally required to be performed by the Government Servant as per the Rules. It was further submitted that departmental proceedings are required to be initiated against respondent no. 3 and he is also liable to be prosecuted under Section 166 of the Indian Penal Code. 12. Learned advocate for the petitioner also submitted that the Right to Information Act is codified to implement transparency in the Government department and to cope the immense of corruption, as also to fix the accountability of individual Government servant and by not providing information as required by the petitioner and by communication dated 01.11.2017, respondent no. 3 has shown disregards to his official duty, disobeyed the duty caste upon official post, by land Revenue Code, as also by Right to Information Act. 13. He further submitted that non performance of official duty is the act and omission of Government servant, made him liable for departmental proceedings as the respondent no. 2 has not initiated any departmental proceedings against respondent no. 3 and therefore, this Court is required to direct respondent no. 2 to initiate appropriate departmental proceedings and further direct respondent no. 3 to comply with the order passed by the First Appellate Authority as well as State Commission. 14. On the other hand, learned Assistant Government Pleader, Mr. Dhawan Jayswal submitted that in the facts of the case, respondent no. 3 has informed petitioner that the relevant papers, documents with regard to amalgamation of the land-in-question are not available and as and when such documents are available or found out, the same would be provided to the petitioner. He further submitted that there is disposal of the request by the respondent no. 3 as per Section 7 of the Act and therefore, there is no breach of any of the orders passed either by the First Appellate Authority or the State Information Commission to provide the information. He further submitted that there is disposal of the request by the respondent no. 3 as per Section 7 of the Act and therefore, there is no breach of any of the orders passed either by the First Appellate Authority or the State Information Commission to provide the information. He submitted that the State Information Commission has passed the order dated 19.09.2017, which stipulates that whatever information is available on record, is required to be supplied. It was submitted that as the information is not available on record, the same could not be provided under the provisions of the Act. 15. Learned Assistant Government Pleader also submitted that provisions of Right to Information Act did not contemplate any action against respondent no. 3 for non supply of information, if it is not available and the petitioner cannot pray for any departmental inquiry or any other action against respondent no. 3 under the provisions of the Act, as submitted by the learned advocate for the petitioner. 16. I have considered submissions made by learned advocates for both the sides. It is not in dispute that whatever information is available on record, the same is provided to the petitioner as per his application dated 05.05.2016. Provision of Section 6 provides for request of obtaining information, whereas Section 7 of the Act provides for disposal of such request, which reads as under: “7. (1) Subject to the proviso to sub-section (2) of section 5 or the proviso to sub-section (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9: Provided that where the information sought for concerns the life or liberty of a person, the same shall be provided within forty-eight hours of the receipt of the request. (2) If the Central Public Information Officer or State Public Information Officer, as the case may be, fails to give decision on the request for information within the period specified under sub-section (1), the Central Public Information Officer or State Public Information Officer, as the case may be, shall be deemed to have refused the request. (3) Where a decision is taken to provide the information on payment of any further fee representing the cost of providing the information, the Central Public Information Officer or State Public Information Officer, as the case may be, shall send an intimation to the person making the request, giving: (a) the details of further fees representing the cost of providing the information as determined by him, together with the calculations made to arrive at the amount in accordance with fee prescribed under sub-section (1), requesting him to deposit that fees, and the period intervening between the despatch of the said intimation and payment of fees shall be excluded for the purpose of calculating the period of thirty days referred to in that sub-section. (b) information concerning his or her right with respect to review the decision as to the amount of fees charged or the form of access provided, including the particulars of the appellate authority, time limit, process and any other forms. (4) Where access to the record or a part thereof is required to be provided under this Act and the person to whom access is to be provided is sensorily disabled, the Central Public Information Officer or State Public Information Officer, as the case may be, shall provide assistance to enable access to the information, including providing such assistance as may be appropriate for the inspection. (5) Where access to information is to be provided in the printed or in any electronic format, the applicant shall, subject to the provisions of sub-section (6), pay such fee as may be prescribed: Provided that the fee prescribed under sub-section (1) of section 6 and sub-sections (1) and (5) of section 7 shall be reasonable and no such fee shall be charged from the persons who are of below poverty line as may be determined by the appropriate Government. (6) Notwithstanding anything contained in sub-section (5), the person making request for the information shall be provided the information free of charge where a public authority fails to comply with the time limits specified in sub-section (1). (7) Before taking any decision under sub-section (1), the Central Public Information Officer or State Public Information Officer, as the case may be, shall take into consideration the representation made by a third party under section 11. (8) Where a request has been rejected under sub-section (1), the Central Public Information Officer or State Public Information Officer, as the case may be, shall communicate to the person making the request: (i) the reasons for such rejection. (ii) the period within which an appeal against such rejection may be preferred. (iii) the particulars of the appellate authority. (9) An information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question.” 17. On perusal of aforesaid Section 7 of the Act, it is clear that information as required, to be provided pursuant to the request made under Section 6 as expeditiously as possible and within 30 days from the receipt of the request, either to provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified under Section 8 and Section 9. 18. In the facts of the present case, request of the petitioner is not rejected either under Section 8 and Section 9 but the request is disposed of by providing information, which is available on record. Respondent no. 3 has informed petitioner that the information with regard to amalgamation of the land-in-question was not available and therefore, the same could not be provided to the petitioner. It was also mentioned in the order dated 01.11.2017 that as and when such information/document would be available, the same will be provided to the petitioner. The petitioner was also given opportunity of inspection of the office record so as to satisfy himself that the documents/information, sought by him, are not available in the office of the respondent no. 3. 19. The petitioner was also given opportunity of inspection of the office record so as to satisfy himself that the documents/information, sought by him, are not available in the office of the respondent no. 3. 19. In that view of the matter, there is sufficient compliance of Section 7 of the Act as the request of the petitioner can be said to be disposed of. 20. With regard to the contention of learned advocate for the petitioner that the respondent no. 2 is required to initiate departmental proceedings against respondent no. 3 and to take the actions, the petitioner is at liberty to initiate proceedings in accordance with law, if permissible. So far as provisions of Right to Information Act is concerned, it only provides for disposal of the request for information sought by the petitioner. None of the provisions of the Act contemplates any action to be taken by the Public information Officer or any other higher authority for not providing information on account of it being not available on record. 21. In view of the foregoing reasons, the petition is devoid of merits and accordingly, dismissed. Notice is discharged. No order as to costs.