Karnataka High Court
Vasanth Rao vs Karnataka Information Commission on 6 September, 2019
Author: B.Veerappa
Bench: B.Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF SEPTEMBER 2019
BEFORE
THE HON'BLE Mr. JUSTICE B.VEERAPPA
WRIT PETITION NO.3372/2013 (GM-RES)
BETWEEN:
Vasanth Rao,
S/o. late U.L. Ananda Rao,
Aged 59 years,
PIO & General Manager (Finance),
Bangalore Metro Rail Development
Corporation Limited,
BMTC Complex, Shanthi Nagar,
Bengaluru. .... Petitioner
(By Smt. Sumana Baliga M., Advocate)
AND:
1. Karnataka Information Commission
2nd Floor, M.S. Building,
Bengaluru - 560 001,
Rep. by its Secretary.
2. T. Narasimhamurthy,
#18, E 4th Street,
OM Road, Ulsur,
Bengaluru - 560 008. .... Respondents
(By Sri G.B. Sharath Gowda, Advocate for R-1
Sri Umapathy, Advocate for R-2)
This Writ Petition is filed under Articles 226 and
227 of the Constitution of India, praying to quash the
2
Show Cause Notice dated 26.06.2012 passed by R-1
vide Annexure-E and etc.
This Writ Petition coming on for Preliminary
Hearing in 'B' group this day, the Court made the
following:-
ORDER
The petitioner filed the present writ petition for writ of Certiorari to quash the Show Cause Notices dated 26.06.2012 and 01.08.2012 passed by respondent No.1 vide Annexures-'C' and 'E' respectively and to quash the Orders dated 10.09.2012 and 02.01.2013 passed by respondent No.1 vide Annexures- 'F' and 'G' respectively.
2. It is the case of the petitioner that respondent No.2 filed an application under the provisions of the Right to Information Act, 2005 (hereinafter referred to as the 'RTI Act' for short) as per Annexure-A dated 31.10.2011 seeking certain information about shifting the Statue of Dr. B.R. Ambedkar located near Vidhana Soudha under the condition that, if not removed within the time period of ten days, the work would thereafter 3 be halted. It is further contended that by oversight and due to work load, the petitioner was unable to give the information to respondent No.2 within thirty days from the date of receipt of the application. The Respondent No.2 approached respondent No.1 to take action against the petitioner for not providing the information without approaching the First Appellate Authority under Section 18(1)(b) of the RTI Act.
3. On the basis of the application/complaint filed, the Commissioner issued Notice on 26.06.2012 as per Annexure-C. There is delay of 6 months in issuing the notice to the petitioner and in the said notice the respondent No.1 has directed the petitioner that he should furnish the information immediately to the respondent No.2 and file the report for sending the information along with the postal acknowledgment and also directed the petitioner to show cause why penalty should not be imposed on the petitioner under Section 20(1) of the RTI Act. Inspite of the petitioner furnishing the information sought on 01.08.2012 as per Annexure- 4 D to the respondent No.2 and filed the explanation for causing the delay, the Commissioner issued another Show Cause Notice to the petitioner stating that why penalty should not be imposed under Section 20(1) of the RTI Act for causing the delay in providing the information as per Annexure-E dated 01.08.2012. Subsequently, Annexure-F came to be issued by respondent No.1 imposing the penalty of Rs.25,000/- to the petitioner and vide Annexure-G dated 02.01.2013, the Commissioner issued warning to the petitioner to comply with the order vide Annexure-F as per Annexure-G. Therefore, the present writ petition is filed for the relief sought for.
4. The Respondent No.2 who is the complainant under RTI Act, filed objections and contended that the very writ petition filed by the petitioner is not maintainable in the facts and circumstances of the case. The respondent No.1 imposed the penalty of Rs.25,000/- as provided under the Provisions of RTI Act for the delayed tactics of the petitioner. Therefore, the 5 writ petition filed by the petitioner is liable to be dismissed. It is further contended that the show cause notice of hearing itself shows that the respondent No.1 has complied with the principles of natural justice and the Commissioner after following the procedure as contemplated has proceeded to pass the impugned Order. Therefore, there is no violation of Article 14 of the Constitution as alleged. There is no final order in Annexure-C and it is the basic procedure followed by respondent No.1 for showing cause for further action provided under the Act.
5. It is further contended that mere issuance of notice of hearing cannot be said to be violation of Article 14 of the Constitution and that mere excuses or oversight reasons cannot be the reasons for denial of fundamental Right to Information exercised by the Citizens. Therefore, the penalty imposed by the Commissioner is just and proper. It is further contended that all the arguments advanced and the grounds urged in the writ petition is not at all urged before the 6 authorities concerned. Therefore, sought to dismiss the writ petition.
6. I have heard learned counsels for the parties to lis.
7. Smt. Sumana Baliga M., learned counsel appearing for the petitioner contended that respondent No.1 passed the impugned order at Annexure-F without holding any enquiry or before hearing the version of the petitioner has come to the conclusion that the petitioner is guilty and issued the Show Cause Notice to impose the penalty, thereby violated the principles of natural justice and further respondent No.2 has only sought for information and not prayed for taking any penal action against the petitioner. Hence, the action of respondent No.1 in directing the petitioner to provide information while exercising the powers vested under Section 18(1) is against the Law laid down by the Hon'ble Supreme Court in Civil Appeal No.10787-10788/2011 dated 7 12.12.2011. Therefore, the impugned order is liable to be quashed.
8. She further contended there is no specific prayer sought for by respondent No.2 in the application. The complainant has not made out any case and the respondent No.1 not recorded any finding that the petitioner has violated any of the Provisions of the Act. In the absence of such finding, the impugned order cannot be sustained. In support of her contention, she relied upon the dictum of the Hon'ble Supreme Court in the case of the Chief Information Commissioner and Another Vs. State of Manipur and Another reported in AIR 2012 SC 864 paragraph Nos.29, 30, 35 and 41 and sought to allow the writ petition.
9. Per contra Sri G.B. Sharath Gowda, learned counsel appearing for respondent No.1 and Sri Umapathy, learned counsel appearing for respondent No.2 sought to justify the impugned order passed by the Commissioner at Annexure-F imposing penalty of 8 Rs.25,000/- for violation of provisions of Section 7(3) of the Act. They further contended that, when in response to the notice as per Annexure-C, the petitioner filed the objection as per Annexure-D admitting the guilt that there is delay in furnishing the information, question of quashing Annexure-C would not arise. If once the violation is admitted the writ petition filed challenging imposition of penalty would not arise. It is further contended that the petitioner could have sought the help of other officers by invoking Section 5(3), 5(4) and 5(5) of the Act, appointing some other to furnish the information. Therefore, sought to dismiss the writ petition with cost.
10. Having heard the learned counsel for the parties, it is undisputed fact that the second respondent, as per Annexure-A sought for copy of the letter that was sent to the Government of Karnataka by BMRCL, whereby, the BMRCL requested the Government of Karnataka to remove the statue of Universal Father Dr. B.R.Ambedkar, from the present premises (near/ opp. 9 To Vidhana Soudha) and, if not removed within a time period of ten days, the work of BMRCL would thereafter be halted. The said application was made on 30.10.2011. Since the petitioner did not comply with the provisions of Section 7(1) of the RTI Act, that is on receipt of application under Section 6(1) failed to furnish the information within 30 days, the complainant requested either to provide the information on payment of such fee as may be prescribed or to reject the request for any of the reasons specified in Sections 8 and 9 of the RTI Act. Since the petitioner did not furnish the information, the complainant was forced to file complaint under Section 18(1) of the RTI Act and Rule 7 of the Karnataka RTI Rules. Based on the complaint, the Commission issued notice under Section 7(3) of the RTI Act directing the petitioner to appear before the Commission, fixing the date of hearing on 01.08.2012 and also stated that since the petitioner has not furnished the information within time, why he should not be penalized under Section 20(1) of the 'Act'. In 10 response to the said notice, the petitioner filed objections on 01.08.2012, the date fixed for hearing, vide Annexure-D. In paragraph-2, it is stated as under:
"2. It is regretted that the reply was not furnished to the applicant by sheer over sight and not due to deliberate intention in not providing the information. The respondents hereby furnish the details required by the applicant before this Hon'ble Commission."
Further, the petitioner requested the Commission that the mistake in not replying to the applicant may be condoned and explanation may be accepted and the complaint may be disposed off.
11. When the matter was called on 01.08.2012, the Commission was of the opinion that, though the information was sought on 31.10.2011, till 01.08.2012 i.e., even after lapse of eight months, the information is not furnished and there is delay in furnishing the information as contemplated under Section 7(1) of the 11 Act, is not explained and therefore, proceeded to impose penalty by the Order dated 10.09.2012, vide Annexure- F. It was stated that if the petitioner did not furnish the information by oversight or work load, he ought to have made arrangements as per the provisions of Section 5(3), 5(4) and 5(5) of the Act and it is not the case of the petitioner that information sought is exempted under the provisions of Section 8(1)(a) to 8(1)(j) of the Act. Therefore, proceeded to pass the impugned Order.
12. The material facts clearly depicts that, it is undisputed fact that the information sought by the second respondent on 31.10.2011 was not complied within thirty days as stipulated under Section 7(1) of the 'Act', and therefore, he was forced to lodge a complaint before the Commission after lapse of 30 days. When the Commission issued notice, the petitioner filed objections as stated supra, admitted the delay and violation of the provisions of Section 7(1) of the Act. The authorities appointed under the provisions of the Act are bound to follow the procedure and furnish the 12 information if it is not exempted, within time. If it is exempted, should have rejected within time. Once the objection is filed and admitted the lapse, the petitioner cannot contend that the notice issued by the Commission is liable to be quashed. Having accepted the delay and violation of Section 7(1) of the Act, petitioner cannot contend that the penalty imposed exercising powers under Section 20(1) of the Act, is contrary to the 'Act'.
13. Admittedly, all the grounds urged by the petitioner before this Court were not at all urged before the Commission. If the petitioner is now allowed to raise new contention which was not raised before the Commission, it amounts to encouraging Public Information Officer to continue the delay tactics in violation of Section 7(1) of the 'Act'. That is not the intention of the Legislature while enacting the provisions of the Right to Information Act, 2005. 13
14. Admittedly, the information sought, issuance of notice by the Commission and the objections filed are not disputed by the Commission or the counsel for the second respondent. In view of the above, in the interest of justice to both the parties, this Court is of the considered view that imposing penalty of `25,000/- for delay in providing the information sought for by the complainant has to be reduced to `10,000/- with a warning to the petitioner that he shall not repeat such mistakes in future.
15. Though the learned counsel for the petitioner relied upon the dictum of the Hon'ble Supreme Court in Civil Appeal No.6454/2011 and in the case of Chief Information Commissioner and Another vs. State of Manipur and another reported in AIR 2012 SC 864, the facts of the said cases and facts of the present case are entirely different. In the present case, the petitioner himself admitted in the objections filed before the Commission that there is delay in providing the 14 information and there is violation of Section 7(1) of the Act. Therefore, the judgments relied upon by the learned counsel for the petitioner have no application to the facts and circumstances of the case.
16. In view of the aforesaid reasons, writ petition is allowed in part. The impugned order passed vide Annexure-F imposing penalty of `25,000/- is modified and petitioner is directed to pay penalty of `10,000/- in modification of the order dated 10.09.2012.
17. In view of the peculiar facts and circumstances of the present case stated supra, the challenge to Annexures-C and G is rejected as devoid of merits.
Ordered accordingly.
Sd/-
JUDGE Pg 1 to 8: PN/-
Pg 8 to 14: kcm