K. Kumaran Land Board v. State Information Commission

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 28TH DAY OF NOVEMBER 2019 / 7TH AGRAHAYANA, 1941** # **WP(C).No.13771 OF 2007(M)** ## **PETITIONER/S:** **K.KUMARAN LAND BOARD, PUBLIC OFFICE BUILDING,, THIRUVANANTHAPURAM, RESIDING AT: H.NO.1/440,, CHAYOTH P.O., NILESHWAR (VIA), KASARAGOD DISTRICT.** **BY ADVS. SRI.MURALI PURUSHOTHAMAN SRI.DEEPU LAL MOHAN** ## **RESPONDENT/S:** - **1 THE STATE INFORMATION COMMISSION, KERALA KERALA, REPRESENTED BY ITS SECRETARY,, PUNNEN ROAD, THIRUVANANTHAPURAM-695 039.** **2 P.V.RAVEENDRAN THOKKANAMMOTTA, PANAYAL P.O.,, BEKAL (VIA), KASARAGOD.** **R1 BY SRI.M.AJAY, SC, STATE INFORMATION COMMN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.13771 OF 2007(M)** 2 ## **JUDGMENT** ## **Dated this the 28th day of November 2019** This writ petition is filed challenging Ext.P4 order of the State Information Commissioner. The petitioner who assumed charge to the post of Assistant Tahsildar on 08/08/2006, has challenged the order of the State Information Commissioner on the ground that a penalty has been imposed on the petitioner without any finding as to the deliberate withholding of the information or any malafides on his part. 2. It is submitted that the 2[nd] respondent had submitted an application for an authenticated copy of a Pattayam as well as its field map. The application was in respect of a file of 1968. The said file was recorded as a missing file. The petitioner took charge as Tahsildar only on 08/08/2006 and was relieved from the post on 07/02/2007. It is stated that the petitioner was under no obligation to have provided the information as sought for, since it was pertaining to a matter which was more than 20 years old. However, the petitioner had traced out the document from other files and had issued the copies as sought for. The 2[nd] respondent **WP(C).No.13771 OF 2007(M)** 3 submitted a complaint before the 1[st] respondent with regard to the delay in furnishing the information. The petitioner was required to appear before the 1[st] respondent. 3. It is submitted that after considering the contentions advanced, the 1[st] respondent had found that the efforts taken by the petitioner for excavating the documents from other files and making them available to the 2[nd] respondent was commendable. However, on the ground that the information was delayed by 70 days, and that Section 20 confers no discretion on the Commissioner to abstain from imposing penalty, a penalty of Rs.17,500/- was imposed on the petitioner. 4. The learned counsel for the petitioner submits that the penalty can be imposed in terms of Section 20 only on a finding that the information sought for had been withheld without any reasonable cause or that the petitioner had refused to receive an application or had not furnished the information within the time provided under Section 7(1) or malafidely denied the request for information or had given incorrect, incomplete or misleading information. 5. In the instant case, it is submitted that there is no **WP(C).No.13771 OF 2007(M)** 4 such allegation against the petitioner. It is submitted that the petitioner could have relied on Section 8(3) to deny the request for information, since, the information sought for was with regard to a file and event which occurred 20 years before the date on which the request is made. 6. However, the petitioner had as a matter of fact, traced out the unavailable information from related files and had made the same available to the applicant. It is stated that Ext.P4 specifically refers to the efforts of the petitioner and appreciates the task undertaken by him. It is only on the ground that the imposition of penalty under Section 20 is mandatory in the case of delay in furnishing of the information that the order of penalty is rendered. 7. The learned counsel for the petitioner relies on the decision of this Court in **Chandramohanan Nair R v. State Information Commissioner and Others [2018(5) KHC** **707],** to contend that where the ingredients of Section 20 with regard to the imposition of penalty are not satisfied, no penalty can be imposed under the said section. The learned counsel also places reliance on the decisions of the Apex Court in **Suraj Lamp & Industries (P) Ltd. v. State of** **WP(C).No.13771 OF 2007(M)** 5 # **Haryana & Another [2009(7) SCC 363] and Chief Information Commissioner and Another v. State of** ## **Manipur & Another [(2011)15 SCC 1].** 8. I have considered the contentions advanced. Ext. P4 is the order by which the penalty has been imposed on the petitioner. The relevant findings in Ext.P4 are as follows. “The Commission would appreciate the laborious task undertaken by the PIO. He had made research work and sorted out, rather excavated and found out a document that was already recorded as missing and managed to furnish the information. The explanation given by him is appreciated. There are documents which shows that he was an officer of credible character and of good work. Once his service was recognized as meritorious service and he had received cash award for his commendable service. He was the first man mentioned in the Kasaragod District for good service entry. Unfortunately the information was delayed by 70 days. It was inevitable but Section 20 confers no discretionary power on the Commission to abstain from imposing any penalty. Therefore, it is ordered that Mr K. Kumaran, who was the then PIO and now Assistant Secretary, Land Board, Trivandrum shall remit amount of Rs.17,500/- (Rupees seventeen thousand and five hundred only) as penalty and directed to remit the above said amount under the head of a/c. "0070-60800-36 Receipts under Right to Information Act, 2005" within 30 days of the receipt of this order, failing which the amount shall be recovered from his salary of the ensuing month or shall be recovered by attachment and sale of the movable or immovable properties belonging to him. 9. Section 20 provides for imposition of penalty where the State Information Commissioner finds that the Public Information Officer has, without any reasonable cause, not **WP(C).No.13771 OF 2007(M)** 6 furnished information within the time specified under sub section (1) of Section 7. The finding reported in Ext.P4 would go to show that the 1[st] respondent had no case that the petitioner had, without any reasonable cause, refused to provide the information as sought for within the time as specified in the Act. 10. As a matter of fact, the 1[st] respondent proceeds to appreciate the efforts taken by the petitioner to provide information which was not readily available. It is also found that the delay which has occurred in furnishing of the information was completely justified by the facts and circumstances of this case. It is thereafter that the penalty is imposed on the finding that it is mandatory to do so. From a consideration of the provisions of Section 20, I find that a penalty is liable to be imposed in a case where the State Information Commissioner comes to a conclusion that the delay in furnishing the information within the time as specified in Section 7(1) is without reasonable cause. The decisions relied upon by the learned counsel for the petitioner are also authority on the point that penalty cannot be imposed unless there is a finding that the refusal to accept the **WP(C).No.13771 OF 2007(M)** 7 application or to furnish the information within time is deliberate and without reasonable cause. 11. In the facts and circumstances of the instant case, I am of the opinion that the authority has not entered any finding that there was any deliberate or malafide attempt on the part of the petitioner to withhold the information or to delay the supply of the same within time. As a matter of fact, the efforts of petitioner had been commended by the Information Commissioner. In the above view of the matter, I am of the opinion that the imposition of penalty on the ground that it is mandatory to do so is completely unsustainable. The impugned order is therefore set aside. The writ petition is ordered accordingly. **Sd/-** ## **ANU SIVARAMAN** **JUDGE** Dxy **WP(C).No.13771 OF 2007(M)** 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE PHOTOCOPY OF THE APPLICATION DATED 27-10-2006 SUBMITTED BY THE 2ND RESPONDENT UNDER THE RIGHT TO INFORMATION ACT, 2005 BEFORE THE TAHSILDAR, HOSDURG.** **EXHIBIT P2 THE PHOTOCOPY OF THE LETTER NO.4759/SIC-GEN2/2006 DATED 27-01-2007 (CP NO.65/2007/SIC) ISSUED BY THE 1ST RESPONDENT TO THE PUBLIC INFORMATION OFFICER, TALUK OFFICE, HOSDURG.** **EXHIBIT P3 THE PHOTOCOPY OF THE REPLY NO.J34490/06 DATED 06.02.2007 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** **EXHIBIT P4 THE PHOTOCOPY OF THE ORDER DATED 28-032007 IN COMPLAINT NO.65/07/SIC PASSED BY THE 1ST RESPONDENT.** **ANNEXURE A THE PHOTOCOPY OF THE CAUSE LIST PUBLISHED BY THE REGISTRY OF THIS HON'BLE COURT IN RESPECT OF CASES WHEREIN COUNSEL FOR THE WRIT PETITIONER IS APPEARING BEFORE THE HON'BLE HIGH COURT OF KERALA ON 05.02.2013 AND DOWNLOADED FROM THE OFFICIAL WEBSITE AND MAINTAINED IN THE COUNSEL'S OFFICE.**