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2019 DIGILAW 220 (GUJ)

ANSARI MOHD YASIN ABDULRAZAK v. BALWANT SINGH

2019-03-13

R.M.CHHAYA, S.H.VORA

body2019
JUDGMENT R.M. CHHAYA, J. 1. By this appeal under Clause 15 of the Letters Patent, the appellant has challenged the judgment and order dated 29.08.2016 passed by the learned Single Judge in Special Civil Application No.12923 of 2016. 2. Following noteworthy facts emerge from the record of the appeal :- [2.1] According to the learned advocate for the appellant, the appellant is social worker and he sought information under the provisions of the Right to Information Act, 2005 (hereinafter referred to as 'the Act, 2005' for the sake of brevity). The application was filed before the Public Information Officer and Deputy City Engineer, Light Department, Ahmedabad Municipal Corporation. The record indicates that such application was filed on 09.05.2014. As no reply was received by the appellant, he approached the Appellate Authority by way of filing Second Appeal before the State Information Commissioner. In the said memo of appeal, there is reference of application dated 09.05.2014 and ground for preferring appeal was that as satisfactory reply is not received, present appeal is filed within 30 days. Said appeal culminated into order dated 26.08.2014, wherein, certain directions came to be issued. Against which, again for the same reasons and grounds, the appellant approached higher authority by filing appeal being No.6530 of 2014, which came to be culminated into order dated 19.05.2016. State Information Commissioner by order dated 19.05.2016 observed that there is inordinate delay in giving information and observed that in future applications be decided within stipulated period as prescribed under the Act, 2005. The record unfolds that as the appellant was not satisfied by the orders passed in appeals, he therefore, approached this Court by way of filing Writ Petition being Special Civil Application No12923 of 2016. 3. Learned advocate Ms. Vora for the appellant has stated at bar that ultimately the information was given. In the Writ Petition, in para 4.3, the appellant - petitioner has raised ground that as per section 20(1) of the Act, 2005, the respondent No.1 ought to have considered that respondent No.3 has delayed in providing information without any reasonable cause and therefore, penalty should have been imposed. The appellant - petitioner raised said ground predominately in the Writ Petition and the learned Single Judge while dismissing the petition has observed in para 3,4,5,6 and 7 as under :- "3. The appellant - petitioner raised said ground predominately in the Writ Petition and the learned Single Judge while dismissing the petition has observed in para 3,4,5,6 and 7 as under :- "3. As could be seen from the background of the facts that the information was asked and there is doubt there is some delay, however, as it transpires from the order impugned, the respondent-authority has considered the provision of the Act and has passed the order, which cannot be said to be illegal, erroneous or contrary to the statutory provision which would call for exercise of discretionary jurisdiction under Article 226 and 227 of the Constitution of India. 4. As it appears from the impugned order at Annexure-I, it has been noted that there is some delay and with the warning to take care in future, it has been disposed of. The submissions made by learned advocate Ms.Vora referring to Section 20 of the Right to Information Act therefore requires closure scrutiny. The provision of Section 20 of the Act provides for penalty. "20. Penalties.-(1) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (/) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or, obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees: Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him: Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be. (2) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause and persistently, failed to receive an application for information or has not furnished information within the time specified under sub-section (/) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall recommend for disciplinary action against the Central Public Information Officer or the State Public Information Officer, as the case may be, under the service rules applicable to him." 5. Thus, it refers to the aspect of coming to the conclusion or forming an opinion that before the said penalty could be imposed the authority must come to the conclusion that information has been malafidely denied and before coming to such conclusion or formation of opinion, it is also provided that reasonable opportunity of being heard before the penalty is imposed is required to be given to the concerned person. Therefore, It is rather an enabling provision in a given case to be exercised by the Information Officer for implementation of the Act when the information is denied. In other words, it does not make it mandatory to impose penalty irrespective of any reason and justification to impose penalty when the delay has occurred or some time has lapsed. The focus is on denying the information malafidely or non-furnishing of the information malafidely or providing misleading information. 6. Therefore, when the legislature has not provided making it mandatory that penalty has to be imposed, this Court would not be justified in adding the words or supplementing the words in the statute. It is well accepted that the Courts are only required to interpret the statutory provision and may not adding or supplement the provision unless it is necessary for achieving the object of the statute. The object of the statute as could as could be seen from the statement of objects and reasons is to provide the information to bring about more transparency. The object of the statute as could as could be seen from the statement of objects and reasons is to provide the information to bring about more transparency. However, when the legislature itself has made such provision and the authorities are empowered to pass appropriate orders, it would not be justified under the concept of judicial review to examine such orders under the discretionary jurisdiction under Articles 226 and 227 of the Constitution of India. As stated herein above, there is no mandatory provision made by the legislature and the Courts are required only to interpret the provision in a manner which subserve the object while making the interpretation in a harmonious way. It is also well settled that while interpreting the statutory provisions the Court may while interpreting the provision iron out creases if it is necessary for achieving the object of the Act or for underlining intention of the legislature. 7. Therefore, considering the aforesaid statutory provision, present petition cannot be entertained under Articles 226 and 227 of the Constitution of India and deserves to be dismissed in limine and accordingly stands dismissed." 4. Learned advocate Ms. Vora for the appellant has almost reiterated the grounds which were raised before the learned Single Judge. According to Ms. Vora, when there is delay in providing information, penalty has to be imposed and it is further asserted that the authority has no discretion but to impose penalty, Ms. Vora further relied on judgment of the Hon'ble Supreme Court in the case of Namit Sharma v/s. Union of India reported in, (2013) 1 SCC 745 and contended that in the old Act, there was no provision of penalty, whereas, in the Act, 2005, provision of penalty is imposed. According to Ms. Vora, learned advocate for the appellant, scheme, object and reasons for making such provision is to see that if there is any delay in providing information, penalty has to follow. Ms. Vora further contended that in the case on hand, there was delay of 600 days and therefore, penalty ought to have been imposed upon by the authorities. 5. On the aforesaid ground, Ms. Vora, learned advocate for the appellant contended that the appeal be allowed and penalty be imposed, as provided under Section 20(1) of the Act, 2005, upon erring officers. 6. Learned advocate Mr. Shah and learned advocate Mr. 5. On the aforesaid ground, Ms. Vora, learned advocate for the appellant contended that the appeal be allowed and penalty be imposed, as provided under Section 20(1) of the Act, 2005, upon erring officers. 6. Learned advocate Mr. Shah and learned advocate Mr. Gandhi appearing for the respondents have supported the impugned orders. 7. No other and further submissions have been raised by the learned advocates for the respective parties. 8. Considering the submissions made, we are in total agreement with the observations made by the learned Single Judge. Penalty as provided under Section 20(1) of the Act, 2005 is enabling provision and in given case, it can be exercised depending on the facts of each case. Considering the case on hand and on perusal of the memo of appeals filed by the appellant - original petitioners, it appears that there is no whisper about any mala-fide intention on the part of the authorities for not giving information within time or giving information belatedly. Even in the Writ Petition, the only ground which is raised is that no sufficient cause is given by the authorities for not furnishing information within time prescribed. 9. We also find that the authorities below have considered the facts of this case and have passed appropriate directions. The learned Single Judge has rightly interpreted provision of Section 20 of the Act, 2005. We also find that in absence of any mala fide pleaded in the appeals before the authorities or before this Court in the Writ Petition, the contentions raised by the learned advocate for the appellant are without any basis, both on facts and law. 10. In the case of Nimit Sharma (supra), the Hon'ble Supreme Court has considered constitutional validity of the provisions of the Act, 2005 and same would not be applicable to the present case or it does not in any way support the case of the appellant that where there is delay, ipso facto penalty has to follow automatically. 11. We may refer to subsequent judgment of the Hon'ble Supreme Court in the case of Manohar Manikrao Anchule v/s. State of Maharashtra and Anr. reported in, (2013) AIR SC 681, wherein, in para 16, it is observed as under :- "16. The State Information Commission has been vested with wide powers including imposition of penalty or taking of disciplinary action against the employees. reported in, (2013) AIR SC 681, wherein, in para 16, it is observed as under :- "16. The State Information Commission has been vested with wide powers including imposition of penalty or taking of disciplinary action against the employees. Exercise of such power is bound to adversely affect or bring civil consequences to the delinquent. Thus, the provisions relating to penalty or to penal consequences have to be construed strictly. It will not be open to the Court to give them such liberal construction that it would be beyond the specific language of the statute or would be in violation to the principles of natural justice." 12. Learned Single Judge has considered penal provision of Section 20 of the Act, 2005 and construed it strictly and rightly came to the conclusion that no words can be added. 13. The appeal being devoid of merits, is liable to be dismissed and is hereby dismissed with cost of Rs.5000/-. The cost be deposited with the Gujarat State Legal Services Authority within a period of 4 weeks. Notice is discharged.