N THE .HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition(C) NoQ MM) /2009. Petitioner: Hemant Kumar Pandey, So late Shri B. P. Pandey, aged about 51 years, Divisional Forest Offlcer Korba (CG) and Public Information Offlcer, Divisional Forest Office, Korba (CG). Versus Chhattisgarh Information Commission, through the State Chief Information Commissioner, Nirmal Chhaya Bhavan Meera Data Road, Shanker Nagar, Raipur V (CG). The Conservator of Forests, Bilaspur Circle Bilaspur (CG) and First Appellate Authority Under Right to Information Act, Office of Conservator of Forests, Bilaspur (CG). Pyarelal Choudhary, " Karyakari Prantadhyakshya, Chhattisgarh Anusuchit Jati, Janjati, 'Pichhada Varga Avam Alpa Sankhyak Adhikari Karmachari Sangthan, Raipur, Office at G—1, 1. ‘T. I. Colony, Raipur (CG). RIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA. 1 h .- 1 rm, T / W %§E L ‘ HIGH COURT OF CHHATTISGARH : BILASPUR Single Bench: Hon’ble Shri Manindra Mohan Shrivastava, J. Writ Petition (C) NO.2441 of 2009 Hema'nt Kumar Pandey Petitioner Versus Respondents Chhattisgarh Information Commission and others (Writ Petition under Article 226 of the Constitution of India) Present:- Shri R. .S. Marhas, counsel for the petitioner. Shri Shyam Tekchandani counsel for respondent No 1 Shri Ajay Dwrvedl Deputy Govt Advocate for the State/respondent No 2 Shri Sudhir Verma counsel for respondent No 3 ORDER (Pronounced on L-04-2011) By this petition, the petitioner, Divisional Forest Officer and Public Information Officer, Divisional Forest Office, Korba, seeks to assaii correctness ‘and validity of order dated 31-03-2009 (Annexure P-1) passed by the State information Commissioner, Raipur, whereby a penalty of Rs.10,000/‘ has been 1k imposed on the petitioner under Section 20(1) of the Right to Information Act, ' 2005 (In short “the Act of 2005”). 2. The facts giving rise. to this petition and relevant for adjudication of controversy involved herein are that the respondent No 3 a Union Leader vrde his application dated 21 06 2008 (Annexure P 2) sought for information from the Public information Officer, the Divisional Forest Office, Korba. The application was received on 24-06-2008. On 08-07-2008, the petitioner directed the concerned Branch lncharge to do the needfui vide noting dated 08-07—2008, endorsed in the application itself. The charges were calculated and it was found that in order to seek information and the documents under the application, the respondent No.3 was required to pay charges in the sum of Rs.53,160/~. G? AV Thereafter, a letter was issued to respondent No.3 on 26—07-2008, which was signed by the petitioner on 23—07-2008. Thereafter, the respondent No.3 did not pay the charges‘as required under notice dated 26-07-2008 (Annexure P~3), but, prefered an appeal before the First Appeliate Authority being the Conservator of Forest, Biiaspur. The First Appellate Authority vide his order dated 07—08-2008 (Annexure P—4) directed the petitioner/Public Information Officer to provide certified copies of the required documents without payment of any charge within the time limit. ln response to the said order dated 07—08-2008, the petitioner submitted an explanation vide his letter dated 30—09-2008 (Annexure P-5) stating that the respondent No3 was informed vide letter dated 26—07—2008 to pay charges in the sum of Rs.53,160/—, but as the same has not been done, the required information could not be given and as‘and when the charges are paid, relevant records would be made available, immediately. Thereafter, the respondent No.3 filed a Second Appeal before the Chhattisgarh information Commission, whereupon the Information Commission directed vide its order dated 05-01-2009 that the respondent No.3 be aIIOWed to inspect all the relevant records free of cost, and thereafter, upon taking list of documents, information up to the cost of Rs.100/— be provided free of cost and for information, cost of which is more than Rs.’IOO/—, the same be supplied upon payment of charges. That order dated 05-01-2009 was communicated to the petitioner vide letter dated 21-01~2009 (Annexure P-6) to the petitioner. Thereafter, letters were issued on 09—01—2009 and 19-02-200g/(Anne'xure P—7) collectiveiy, by which, the respondent No.3 was informed to come and inspect the records and obtain copies free of cost up to Rs.100/— and then submit a list of remaining documents. Thereafter, on 04-03-2009 (Annexure P—8), the respondent No.3 was again asked to submit list of documents, as per the direction of the information Commission. However, the list was not submitted by the petitioner, and therefore, copies could not be given. This fact was brought to the notice of the Commission on 09-03—2009. But thereafter, on 31-03-2009, the Commission imposed a penalty of Rs.10,000/—, against which, the present petition has been filed. 3. Learned counsel for the petitioner argued that the obligation to give information as stipulated under Section 7 of the Act of 2005, is subject to the pre- condition of payment of fee as may be prescribed and until and unless the said condition is fulfilled and fees paid, the Public Information Officer is not obliged to provide information. He submits that even after letter dated 26-07-2008 given to respondent No.3, required fee of Rs.53,160/- was not paid‘ and therefore, no information could be supplied to respondent No.3. The other contention of learned counsel for the petitioner is that the memo of appeal preferred before the First Appellate Authority, the appellate authority .while seeking explanation issued a direction to the Public Information Officer to provide information free of cost by pre judging the issue that there was a lapse on the part of the Public information Officer. it is contended that such order could not be passed in an appeal, without affording opportumty of being heard to the petitioner. lt is then contended that while the petitioner had submitted his explanation to the First Appellate Authority, even with‘out there being any consideration of petitioner’s application by the First Appellate Authority, the respondent No.3 preferred a second appeal, of which, the , information Commission took cognizance and directed the petitioner to supply requisite information, vide its order dated 05-01-2009, which was fully complied with by the petitioner, even the/n, the State information Commissioner passed the impugned order on 31-03-2009 imposing penalty on the petitioner. Learned counsel submits that unless there was any decision in the First Appeal, there was no occasion for respondent No.3 to file a second appeal nor any second appeal could be entertained, because there was no order, against which, second appeal could be'preferred by the respondent No.3. Learned counsel further submits that in fact, order dated 07-08-2008 passed by the First Appellate Authority was an order in favour Of the respondent No.3, and therefore, no appeal could lie against the said order at the instantie of respondént No.3. It is further submitted that the Information Commission committed grave error of iaw by imposing the penalty on the petitioner without récording any finding that the petitioner, [without any reasonable cause, refused to receive applicationfor information or did not furnish information within the time specified under sub section(1) of Section-7 of the Act of 2005 or was maiafideiy denied the request for information. Learned counsel submits that the Information Commission ought to have appreciated that there was only two days’ delay in informing the respondent No.3 that he was required to pay Rs.53,160[- for obtaining requisite information under Section 7 of the Act of 2005, and in the circumstances, it cannot be said to be deliberate act of delay. lt is further argued that the Commission ought to have seen that the order of the First Appellate Authority, which was said to be violated by the petitioner, itself was passed without affording any opportunity of hearing to the petitioner, and therefore, on that basis, no penalty could have been imposed on the petitioner. He submits that the Information Commission did not take into consideration that its earlier passed on 05—01~2009 was duly complied with in its true spirit. Further submission of learned counsel is that order dated 31-03-2009 is an order reviewing earlier order dated 05-01-2009, for which, it had no jurisdiction under the Act of 2005. 4. On the other hand, learned counsel for respondent No.1 submitted that respondents No.1 & 2 acted/asian appellate authority, therefore, they are not / . contesting the matter. 5. Learned counsel for respondent No.3 submitted that the order passed by the First Appellate Authority as well as order dated 31-03-2009 passed by the Information Commission is just and proper and in accordance with law. Learned counsel submitted that in view of the provisions contained in Section 7(1) of the Act of 2005, the petitioner was under an obligation to provide information within a period of‘30 days or reject the request. However, the petitioner failed to give ?§v decision on the request for information within the stipulated period of 30 days of the receipt of the request, therefore, it was a case of deemed refusal of the request. He further submits that if at aii any fee was payable, the provisions contained in Section 7(3)(a) of the Act of 2005, obliged the petitioner to take a decision and communicate that the amount of fees for providing requisite information, required to be paid, within a period of 30 days. As the petitioner neither supplied information nor furnished information nor informed the respondent No.3 regarding payment of fee within the stipulated period, the First Appellate Authority was fully justified in directing the petitioner to provide information free of cost in view of the provisions contained in Section 7(6) of the Act of 2005. Learned counsel appearing for respondent No.3 submitted that the petitioner again failed to comply with the directions of First Appellate Authority, therefore, the imposition of penalty by the Commission is fully justified in view of the provisions contained in Section 20(1) of the Act of 2005. lt is then submitted that the Information Commission have all the powers to impose penalty and before imposing penalty, the petitioner was given an opportuniw of hearing, therefore, notwithstanding that the application of respondent No.3 was titled as appeal, the Information Commission had all the authority to take cognizance of the fact that without reasonable cause, the petitioner failed to furnish information within the stipulated period under Section 7(1) of the Act of 2005, and therefore, the lnformationCommission had all the power and authority to impose penalty. / 6. lt has not been disputed by the petitioner that request was made by respondent No.3 for supply of information vide his application dated 21-06-2008 (Annexure P—2) The endorsement made therein shows that on 08—07—2008, the petitioner directed the ln-charge officer to take necessary steps to ascertain amount of fee payable for being informed to respondent No.3. lt therefore appears from letter dated 26—07—2008 (Annexure P-3) that the petitioner signed W the letter on 23-07-2008, the same was issued to respondent No.3 only on 26-07- 2008. 7. The provision containeg in Section 7(1) of the Act of 2005 clearly obliges the Public Information Officer to provide the information on payment of such fee as may be prescribed, within a period of 30 days of receipt of the request. The other course of action open to the Public information Officer is to reject the request for information due to reasons specified in Section 8 and 9 of the Act of 2005. Sub Section (2) of Section 7 of the Act of 2005 clearly provides that if the Information Officer fails to give decision on the request for information within the period specified under sub-section (1), the Public lnformatiOn Officer shall be deemed to have refused the request. The application having been submitted on 21-06—2008 and admittedly received by the petitioner on 24-06-2008, the, V necessary exercise as stated above, ought to be done within a period of 30 days, which apparently was not done. 8. The contention of learned counsel for the petitioner that unless fee as prescribed has been paid, there is no obligation to provide information within the time stipulated is correct. ln the present case, the petitioner did not furnish information due to non-deposit of prescribed fee, as is required to be paid by the respondent No.3, but that should have been informed by the petitioner to the respondent No.3 within the stipulated period of 30 days. Sub Section (3) of Section 7 of the Act of 2005 pT/ovides that where a decision is taken to provide the information on payment’of any further fee representing the cost of providing the information, the Public information Officer shall send an intimation to the person making the request giving details of further fees representing the cost of providing the information as determined by him, together with the calculations made to n arrive at the amount in accordance with fee prescribed under sub-section(1), z ' requesting him to deposit that fees, and the period intervening between the dispatch of the said intimation and payment of fees shall be excluded for the yz/ purpose of calculating the period of thirty days referred to in that sub-section. A conjoint reading of provisions contained in sub section 1, 2 & 3 would mean that in case, further fees is required to be paid as cost of providing the information, the decision in that regard is also required to be’taken within the stipuiated period of thirty days of the receipt of the request. If that has not done, the consequences provided under Section sub Section (3) of Section 7 shail ensue i,e. the State Public Officer shall be deemed to have refused the request. 9. As the petitioner failed to provide information or giving a decision on the request for information within thirty days of the receipt of the request resulting in deemed refusal of the request, the respondent No.3 was justified in preferring an appeal in exercise of his right of appeal conferred under Section 19 (1) of the Act of 2005, which clearly states that any person who, does not receive a decision within the time specified in sub—section (1) or clause- (a) of subsection (3) of section 7, or is aggrieved by a decision of the Central Public information Officer or the State Public information, as the case may be , may, within thirty days from the expiry of such period or from the receipt of such a decision, prefer an appeal. The t First appellate authority on 0108—2008, passed an order directing the petitioner to provide information without any charge within the time stipuiated. ln response to that, the petitioner informed to the appellate authority, vide letter dated 26—07— s’ 2008, that the respondent No.3 was required to pay charges of Rst53,160/~, which has not been done, the/refore, the requisite information could not be made available. Thereafter, there was no decision by the First Appellate Authority. The / respondent No.3 thereafter filed a second appeal. i 10. Learned counsel for the petitioner, however, correctly submitted that as far as First Appellate Authority is concerned, it passed an order dated 07-08—2008, p t whereby the petitioner was directed to provide information without payment of any charges, without affording any opportunity of hearing and the circumstances also show that no final order was passed by the First Appellate Authority, against , 5% which, a second appeal would lie as proVided under Section 19(3) of the Act of 2005. 11. The First Appellate‘Authority as well as State lnformation Commission acting as Second Appellate Authority acted in a peculiar manner. The First Appellate Authority, upon submission of an appeal, issued a direction on 07-08— 2008 vide Annexure P—4. By that time, no notice was given to the petitioner. ln fact, such a direction to provide information without payment of charges amounted to pre-judging the issue and nothing more was left to be decided in first appeal. The First Appellate Authority was. obliged to first give a notice to the petitioner and then pass an order, which has not been done in the case. t 12. Another aspect of the case is that even‘though, order dated 07—08—2008 was in favour of respondent No.3 and he had no occasion to file second appeal against the said order, he preferred a second appeal, which appears to be more in the nature of seeking execution of order dated 07-O8—2008wpassed by the First Appellate Authority. This is reflected from memo dated 21-01—2009 (Annexure P- 6) of the Information Commissioner. When there was no order against the respondent No.3, there was no occasion for respondent No.3 to prefer second appeal under Section 19(3) of the Act of 2005. 13. However, it appears that upon receiving the memo of appeal, the Information Commission also yok cognizance of the complaint of the respondent / . No.3 that the information was not supplied to the respondent No.3, even after passing of an order by the Appellate Authority, whereafter, the lnformation Commission issued a show cause notice to the petitioner vide memo dated 21-01—2009 as to why penalty be not imposed for not providing information in spite of direction given by the First Appellate Authority and also for delay. After receiving reply of the petitioner, the lnformation Commission has passed the impugned order dated 31-03-2009, wherein it has been stated that even though, 3761 application for information was received on 24-06-2008, information for depositing further fee was given on 26—07—2008, whereas the said information ought to be given within thirty days and the petitioner has not given any explanation as to why such delay in giving the reply was caused. 14. Even though, second appeal filed by respondent No.3 before the lnformation Commission appears to be misconceived, at the same time, the memorandum of appeal contained facts, of which, cognizance were taken by the information Commission as complaint and thereafter, impOsed penalty for which, it is competent under the Iaw. Moreover, in view of the provisions contained in Section 7(6) of the Act, where a public authority fails to comply with the time limits specified in sub-section(1), person making the request for furnishing the information is entitled to information free of charge. Therefore, in the absence of any decision taken to provide information on payment of further fee within a period of thirty days from the date of receipt of the information, the petitioner was liable to provide information free of cost to the respondent No.3. Therefore, even if order of first appellate authority is ignored, petitioner was obliged to provide information free of cost. Moreover, the petitioner failed to show that there was any reasonable cause in not taking decision to provide information on payment of further fee and sending intimation as required under clause(a) of sub—section(3) of Section 7 of the Act of 2005, within the time limit. Therefore, the information Commission is justified in hold/'Lng that the petitioner has failed to give reasonable / cause for delay. The petitioner in his reply, addressed to the First Appellate Authority as well as to the Second Appellate Authority, stated that the application for information was received on 24—06—2008, and thereafter, intimation was given to the petitioner on 26-07-2008 to deposit required fee, which was not deposited, and therefore, information could not be supplied, ignoring that such a intimation for paying further fee was required to be given within thirty days and failure to do that was required to be explained in his reply. It is relevant to note that the burden *1\\ w. x ~ , "_H_ -—-——w-—-————. 10 ‘ 1d of proving that Public Information Officer acted reasonably and diligently is on the Public information Officer. The Information Commission has therefore rightly formed an opinion that the petitioner has failed to furnish information within the time specified under sub-section (1) of Section 7 of the Act of 2005 without any reasonable cause. Moreover, the Information Commission has taken a lenient view in the matter and in place of proposed penalty of Rs.25,000/—, it has imposed penalty of Rs.10,000/— only‘ which also appears to be justified, considering that after the State Information Commissioner passed the order, the Public Information Officer allowed the respondent No.3 to inspect and take documents as per directions of the Information Commission. The order passed by the Information Commission on 05-01-2009, the substance of which, has been stated in notice dated 21—01-2009, was with regard to providing information, whereas order dated 31—03—2009 is an order of penalty in exercise of power conferred under Section 20(1) of the Act of 2005, and therefore, arguments of learned counsel for the ‘ petitioner that order dated 31-03-2009 seeks to review earlier‘order dated 05-01- 2009 has no merit. I 15. In the result, l do not find merit in the petition, and therefore, the same is hereby dismissed. No order as toV Sdl— 2’ 1 Manindra Mohan Shrivastava V Judge i/w TUITIane