State Public Information Officer, Kerala Financial Corporation, Branch Office, Kozhikode v. State Information Commissioner, State Information Commission, Thiruvananthapuram and Dr. M.M. Abdusalam Meadows

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL THURSDAY, THE 3[RD] DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944 WP(C) NO. 29728 OF 2022** ## **PETITIONER/S:** 1 STATE PUBLIC INFORMATION OFFICER KERALA FINANCIAL CORPORATION, BRANCH OFFICE, MANUEL SONS BUILDING, MUTHALAKKULAM, KOZHIKODE, PIN - 673001 2 APPELLATE AUTHORITY CUM BRANCH MANAGER 2. APPELLATE AUTHORITY CUM BRANCH MANAGER, KERALA FINANCIAL CORPORATION, G.H. ROAD, KOZHIKODE, PIN - 673001 BY ADVS. DHANYA P.ASHOKAN SHRI.M.R.VENUGOPAL, SC, KFC S. MUHAMMAD ALIKHAN ## **RESPONDENT/S:** 1 STATE INFORMATION COMMISSIONER STATE INFORMATION COMMISSION, THIRUVANANTHAPURAM, PIN - 695001 2 DR. M.M. ABDUSALAM MEADOWS, PAVANGAD P.O., KOZHIKODE, PIN - 673021 BY ADVS. Bindu R G.RAJAGOPAL (KUMMANAM)(K/3520/1999) ## **OTHER PRESENT:** SRI M AJAY SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 29728 OF 2022** **2** ## **JUDGMENT** The order of State Information Commissioner dated 26.8.2022, Ext.P6 rendered in AP No.1684(3)/2020 is under challenge in the present writ petition. 2. The facts leading to filing of the writ petition are that the respondent No.2 on 19.6.2019 filed an application under the provisions of the RTI Act (2005 Act) before the Public Information Information Officer, KFC Branch Office, Kozhikode, requesting to supply copy of the minutes dated 26.2.2018 held at Conference Hall, Hotel Malabar Palace, Kozhikode. It was alleged that he is the owner of the apartment No.7C of the flat namely Seashells constructed by Pentagon Builders. Since certain decisions were taken in the meeting and the said minutes were essential for him to deal with certain contingencies. Vide order dated 2.7.2019, Ext.P2, the then SPIO, Smt. Santadevi informed that there was no availability of the minutes with the Corporation and further intimated that M/s Pentagon Builders had taken a loan from KFC for constructing the apartments. The petitioner preferred a complaint instead of availing the remedy of appeal before the State Information Commissioner. The State Information Commissioner **WP(C) NO. 29728 OF 2022** **3** realized that the said minutes were actually in existence which was supplied to one P.B Jayakumar and vide order dated 23.6.2020 disposed of the complaint by directing the complainant to the first appellate authority with a demur that there will be no penal proceedings against the SPIO. An appeal was preferred before the Appellate Authority, which resulted into an order dated 30.10.2020, Ext.P5 on similar lines as passed by the SPIO on 2.7.2019, Ext.P2. 3. The complainant taken up the matter before the State Information Commissioner by filing an appeal. The appellate court noticing all the facts imposed penalty of Rs.5,000/- each on the then SPIO, Smt. Santadevi, Ms. Sophia S, the Appellate Authority and also Mr.Jaffer K,the SPIO. 4. The learned counsel appearing on behalf of the petitioners submitted that petitioner No.1 is the present SPIO and does not press the writ petition on behalf of her because there is no order against her. Writ petition is permitted to be not pressed against the first petitioner. Ordered accordingly. 5. Viz-a-viz the petitioner No.2, the appellate authority had also imposed the fine on the ground that the orders of Commission, by not furnishing the draft minutes, has been violated and therefore the penalty under the provisions of Section 20(1) of the RTI Act has been imposed. There cannot be any fault on behalf of the petitioner **WP(C) NO. 29728 OF 2022** **4** No.2 for the reason that the information sought and the documents supplied did not consist of the proceeding of the minutes of the meeting held on 26.02.2018. The petitioner has already in possession of those minutes and the date of the acquisition of the knowledge is not forthcoming and therefore the possibility of asserting more information under the garb or for other purposes cannot be ruled out. 6. On the other hand, learned counsel representing the State Information Commissioner and the respondent No.2 opposed the aforementioned writ petition on the ground of maintainability viz-a-viz the petitioner and in support of the contentions relied upon the judgment in **Gyan Prakash Chaturvedi v. State of U.P (AIR (2016) Allahabad 156)** whereby a complainant had filed a writ petition under Article 226 for recovering of the penalty against the erstwhile SPIO,where the question had been left open in view of the ambiguity in the provisions of the Right to Information Act. It has been further submitted that the then SPIO, Santadevi and Mr. jaffer had acted totally in violation of the provisions of the Act by not providing the minutes as one P.B Jayakumar was also having been possession of the minutes and thus urge this Court for dismissal of the writ petition. I have heard the learned counsel for the parties and appraised **WP(C) NO. 29728 OF 2022** **5** the paper book. The complaint much less the orders of the Information Commissioner are bereft of the fact that under how and what circumstances, particularly, the date on which the petitioner had acquired the notice or possession of the minutes of the meeting held on 26.02.2018. Once the petitioner had already been in possession of the meetings what was the occasion for filing the complaint. The pleadings of the appeal are also silent that whether the petitioner had acquired the possession of the meetings, pre or post submission of the complaint under the RTI Act. This aspect has totally been ignored by all the authorities and there cannot be alleged dereliction of the duties by the then SPIO. In such circumstances, I am of the view that the penalty under Section 19 of Rs.5000/- to be recovered personally from the authorities ought not to have been passed as it may not be a case of some kind of animosity or vengeance much less possibility of a proxy litigation cannot be ruled out. Not only this, there is another aspect also that the appellate authorities, while imposing penalties has also not examined that the information sought by the complainant, the file summoned by SPIO whether it contained the proceedings or otherwise. Until and unless such exercise had been done, there was no occasion for imposing the penalty. For the reason aforementioned, the order imposing the penalty against the **WP(C) NO. 29728 OF 2022** **6** petitioner No.2 is not sustainable in the eyes of law. Accordingly, Ext.P6 order qua petitioner No.2 is quashed. Sd/- sab **AMIT RAWAL JUDGE** **WP(C) NO. 29728 OF 2022** **7** ## **APPENDIX OF WP(C) 29728/2022** PETITIONER EXHIBITS |Exhibit P1|TRUE COPY OF THE APPLICATION DATED| |---|---| ||19/06/2019 PREFERRED BY THE 2ND RESPONDENT| ||UNDER THE ACT ALONG WITH READABLE COPY| |Exhibit P2|TRUE COPY OF THE REPLY DATED 02/07/2019| ||ISSUED BY THE 1ST RESPONDENT ALONG WITH| ||ENGLISH TRANSLATION| |Exhibit P3|TRUE COPY OF THE ORDER DATED 23/06/2020| ||ISSUED BY THE 1ST RESPONDENT ALONG WITH| ||ENGLISH TRANSLATION| |Exhibit P4|TRUE COPY OF THE REQUEST DATED 22/10/2020| ||SUBMITTED BY THE 2ND RESPONDENT TO THE 2ND| ||PETITIONER| |Exhibit P5|TRUE COPY OF THE REPLY DATED 30/10/2020| ||ISSUED BY THE 2ND PETITIONER TO THE 2ND| ||RESPONDENT ALONG WITH ENGLISH TRANSLATION| |Exhibit P6|TRUE COPY OF THE ORDER DATED 26/08/2022| ||PASSED BY THE 1ST RESPONDENT IN AP| ||1684(3)/2020 ALONG WITH ENGLISH| ||TRANSLATION| RESPONDENT EXHIBITS Exhibits R2(a) True copy of the minutes of the meeting held on 26.02.2018. Exhibit R2(b) True copy of the application submitted by the 2nd respondent dated 16.03.2020 and the answers given by the Corporation. Exhibit R2(c) True photo copy of the communication sent through email by the builders to the 2nd respondent updating the status of the construction in September 2020. **WP(C) NO. 29728 OF 2022** **8** Exhibit R2(d) True photo copy of the communication sent through email by the builders to the 2nd respondent updating the status of the construction in September 2020. Exhibit R2(e) True photo copy of the communication sent through email by the builders to the 2nd respondent updating the status of the construction in November, 2020.