Ganesh Prasad Sahu vs State Information Commissioner & Ors.

The petitioner has filed this petition for the following reliefs:-

The facts of the case are such that the petitioner is an agriculturist, he had taken three-phase connection to provide water facility in his field to get best crops. But in the year of 2008, when petitioner had sown the crop of Wheat and Gram, due to mistake on the part of Electricity Board, the supply of electricity in petitioner's fields repeatedly got failed because of which his agriculture work was badly affected due to non-irrigation of his fields. It is submitted that due to non-supply of electricity, petitioner's wife made series of complaints for repairing of fault/supply of electricity, but even then the supply of electricity could not be resumed, as a result of which the petitioner's crops were destroyed due to unavailability of proper water in the fields, thereafter, the petitioner filed application under Right to Information Act to obtain copy of complaints lodged by him dated 03.06.2008, 27.06.2008, 30.06.2008 and 25.09.2008 to demonstrate his grievance before higher forum and for immediate repair of electricity fault. Copy of application under R.T.I. Act, dated 07.01.2009 was received by the Public Information Officer on 21.01.2009 (Annexure P-1). Thereafter by letter dated 27.03.2009 (Annexure P-3), respondent supplied only part information. Feeling aggrieved of part information, petitioner's wife filed an appeal (Annexure P-4) before respondent No. 2. Respondent No. 2, in the absence of Petitioner's wife, passed an order on 09.04.2009 (Annexure P-5) recording that required information was not available with the respondents, and thereby disposed of the matter. However being aggrieved by the order of first appellate forum, petitioner filed appeal before respondent No.1, which Authority disposed of the appeal by the impugned order dated 31.07.2014 (Annexure P-8) thereby informing that since Register bearing complaints pertaining to the month of June, 2008 has been missing, therefore, the information regarding action taken on those complaints of the petitioner could not be supplied, as far as information relating to the complaint received in the month of September, 2008 is concerned, the information regarding action taken on that complaint had been supplied to the petitioner.

It is submitted by the Counsel for the petitioner that since the information relating to complaints of the month of June, 2008 was not supplied, therefore, the petitioner was entitled to get Rs. 250/- for each day till information was furnished to him, the total amount of such penalty not exceeding Rs.25,000/- with interest till the date of payment, but petitioner was not paid that amount. Hence, this petition.

Reply was submitted on behalf of respondent Nos.2 and 3, whereby it is submitted that the petitioner had sought the copy of complaint register for four dates namely 3.6.2008, 27.6.2008, 30.6.2008 & 25.9.2008. Since the complaint register for the month of June 2008 till 25.7.2008 was missing, of which a complaint has also been registered with police authorities, therefore the copy of relevant dates of the month the June,2008 could not be given to the petitioner. Copy of complaint register of the month of September, 2008 was given. Therefore the respondents have complied with the provisions of the Right to Information Act. It is further submitted that there was no mistake on the part of the authority, which called for imposition of fine. The data which was available with the company was given to the petitioner and the other register for the month of June was lost/misplaced, therefore, the other data could not be given to the petitioner. Therefore the action of the respondent Nos.2 and 3 cannot faulted with.

Heard learned Counsel for the parties.

It is a case of the petitioner that instead of supplying information as sought by the petitioner under the Right to Information Act, 2005 (for brevity, 'Act of 2005'), the second appellate authority has though observed that not preserving the record is a serious default of the respondent authorities, but no penalty of Rs.25,000/- has been levied, and appeal was disposed of with direction to initiate departmental proceedings against the delinquent.

It is not disputed that the denied information/record has been lost, for which according to the respondent, a complaint was also lodged, which makes it clear that such record was not available and lost.

'Right to Information' is defined in Clause (J) of Section 2 of Chapter I of 'The Act of 2005', which reads as under:-

According to the said definition, information means an information which is accessible under the Act and which is "held by or under the control" of any public authority.

Similarly, Section 6 provides that a person, who desires to obtain information under this Act, shall make a request in writing, which is held by any other authority, the subject matter of which is more closely connected with the functions of another authority, the information Officer shall transfer the application to such an public authority immediately.

From bare perusal of the aforesaid provisions, it is clear that if any information is held by or having control of the public authority, then only such information can be provided. It is not in dispute that such information with regard to records has been lost, for which a complaint has been made to the Police authorities. Therefore, in the considered opinion of this Court, such information, which was not available with the public authorities, could not have been granted under the provisions of the Act.

Section 20 of the Act of 2005 provides that in case the Public Information Officer, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) 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.

It is crystal clear form the aforesaid provision of law that penalty can be imposed in the cases when the authority deliberately has not provided the information despite having the record of it or destroyed the information, but as the present case in hand, it is submitted that the record was lost, for which complaint was also lodged with the Police authorities. It is also stated in the internal communication that said record was available in the public place, where anyone could lodge a complaint in the Register. Therefore, missing, theft or misplacing of such record is not ruled out.

Therefore, in the considered opinion of this Court, the penalty of Rupees Twenty Five Thousand can be awarded only in the case where the authorities deliberately, malafidely has not provided the information or destroyed the information, but no such material fact has been brought on record by the petitioner to prove contrary that such record has not been lost or deliberately shown to be lost. Therefore, the findings arrived at by the Second Appellate Authority - State Information Commission is in consonance of Section 20 of the Act and cannot be called for question under Article 226 of the Constitution of India and accordingly, respondent No.1 has rightly directed for the departmental enquiry against the person, who was authorized to keep the record sought by the petitioner.

The Counsel for the petitioner submits that in compliance of the order passed by the State Information Commission, no departmental enquiry has been initiated against the concerned persons. The Counsel for the respondents is not in a position to submit that whether the order has been complied with or not. Therefore, maintaining the impugned order dated 31/7/2014 passed by the State Information Commission, the petition is disposed of with the direction to the respondents to furnish the information to petitioner, whether departmental enquiry has been initiated against the person In-Charge of the holding records, as sought by the petitioner, by letter within a month from the date of receipt of the certified copy of this order.

In view of the aforesaid, the writ petition stands disposed of.