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Judgment
Sudhanshu Dhulia, J. (Oral)
Respondent no. 2 sought certain information under the Right to Information Act, 2005 from the Public Information Officer of Peyjal Nigam,
Dehradun Division, Rajendra Nagar vide application dated 04.08.2016. Since the information as sought by respondent no. 2 was not supplied to him, he
filed the first appeal where the first appellate authority vide order dated 05.10.2016 directed the Public Information Officer to supply the information to
respondent no. 2 within a period of one week. Even after the orders of the first appellate authority, the information was not supplied to the respondent
no. 2 and, therefore, he preferred the second appeal before the State Information Commissioner. During the pendency of the second appeal, the State
Information Commissioner vide order dated 13.09.2017 observed that the due process of tender has not been adopted and directed the Secretary,
Peyjal Nigam, Dehradun to conduct an enquiry as to whether all the tenders were published, how many contractors participated in each tender
process and how much money was released to each contractors for the construction work, etc. Thereafter, the State Information Commissioner vide
its order dated 04.01.2018 disposed the matter imposing a penalty of Rs.25,000/- (Rupees Twenty Five Thousand Only) on the concerned Public
Information Officer for not furnishing the information.
Present writ petition has been filed by the Secretary (Peyjal), Uttarakhand, Dehradun assailing the order dated 04.01.2018 passed by the State
Information Commissioner on the ground that the State Information Commissioner has no power under the Right to Information Act, 2005 to issue a
direction to him to conduct the enquiry.
The powers of the State Information Commissioner are given under Sections 18, 19 and 20 of the Right to Information Act, 2005, which read as
under:-
“18. Powers and functions of Information Commission.â€"(1) Subject to the provisions of this Act, it shall be the duty of the Central Information
Commission or State Information Commission as the case may be to receive and inquire into a complaint from any person,â€
(a) who has been unable to submit a request to a Central Public Information Officer, or State Public Information Officer as the case may be, either by
reason that no such officer has been appointed under this Act, or because the Central Assistant Public Information Officer or State Assistant Public
Information Officer, as the case may be, has refused to accept his or her application for information or appeal under this Act for forwarding the same
to the Central Public Information Officer or State Public Information Officer or Senior Officer specified in sub-section (1) of section 19 or the Central
Information Commission or the State Information Commission, as the case may be;
(b) who has been refused access to any information requested under this Act;
(c) who has not been given a response to a request for information or access to information within the time limits specified under this Act;
(d) who has been required to pay an amount of fee which he or she considers unreasonable;
(e) who believes that he or she has been given incomplete, misleading or false information under this Act; and
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(f) in respect of any other matter relating to requesting or obtaining access to records under this Act.
(2) Where the Central Information Commission or State Information Commission, as the case may be, is satisfied that there are reasonable grounds to
inquire into the matter, it may initiate an inquiry in respect thereof.
(3) The Central Information Commission or State Information Commission, as the case may be shall, while inquiring into any matter under this section,
have the same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908, in respect of the following matters,
namely:â€
(a) summoning and enforcing the attendance of persons and compel them to give oral or written evidence on oath and to produce the documents or
things;
(b) requiring the discovery and inspection of documents;
(c) receiving evidence on affidavit;
(d) requisitioning any public record or copies thereof from any court or office;
(e) issuing summons for examination of witnesses or documents; and
(f) any other matter which may be prescribed.
(4) Notwithstanding anything inconsistent contained in any other Act of Parliament, or the State Legislature, as the case may be, the Central
Information Commission or the State Information Commission, as the case may be, may, during the inquiry of any complaint under this Act, examine
any record to which this Act applies which is under the control of the public authority, and no such record may be withheld from it on any grounds.
Appeal.â€" (1) Any person who, does not receive a decision within the time specified in sub-section (1) or clause (a) of sub-section (3) of section
7, or is aggrieved by a decision of the Central Public Information Officer or the State Public Information Officer, 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 to such officer who is senior in rank to the Central Public
Information Officer or the State Public Information Officer, as the case may be, in each public authority:
Provided that such officer may admit the appeal after the expiry of the period of thirty days if he or she is satisfied that the appellant was prevented
by sufficient cause from filing the appeal in time.
(2) Where an appeal is preferred against an order made by a Central Public Information Officer or a State Public Information Officer, as the case
may be, under section 11 to disclose third party information, the appeal by the concerned third party shall be made within thirty days from the date of
the order.
(3) A second appeal against the decision under sub-section (1) shall lie within ninety days from the date on which the decision should have been made
or was actually received, with the Central Information Commission or the State Information Commission:
Provided that the Central Information Commission or the State Information Commission, as the case may be, may admit the appeal after the expiry of
the period of ninety days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
(4) If the decision of the Central Public Information Officer or State Public Information Officer, as the case may be, against which an appeal is
preferred relates to information of a third party, the Central Information Commission or State Information Commission, as the case may be shall give a
reasonable opportunity of being heard to that third party.
(5) In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State
Public Information Officer, as the case may be, who denied the request.
(6) An appeal under sub-section (1) or sub-section (2) shall be disposed of within thirty days of the receipt of the appeal or within such extended
period not exceeding a total of forty-five days from the date of filing thereof, as the case may be, for reasons to be recorded in writing.
(7) The decision of the Central Information Commission or State Information Commission, as the case may be, shall be binding.
(8) In its decision, the Central Information Commission or State Information Commission, as the case may be, has the power to,â€
(a) require the public authority to take any such steps as may be necessary to secure compliance with the provisions of this Act, includingâ€
(i) by providing access to information, if so requested, in a particular form;
(ii) by appointing a Central Public Information Officer or State Public Information Officer, as the case may be;
(iii) by publishing certain information or categories of information;
(iv) by making necessary changes to its practices in relation to the maintenance, management and destruction of records;
(v) by enhancing the provision of training on the right to information for its officials;
(vi) by providing it with an annual report in compliance with clause (b) of sub-section (1) of section 4;
(b) require the public authority to compensate the complainant for any loss or other detriment suffered;
(c) impose any of the penalties provided under this Act;
(d) reject the application.
(9) The Central Information Commission or State Information Commission, as the case may be, shall give notice of its decision, including any right of
appeal, to the complainant and the public authority.
(10) The Central Information Commission or State Information Commission, as the case may be, shall decide the appeal in accordance with such
procedure as may be prescribed.
Information
Penalties.â€
Commission
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(1) Where the Central or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that
the Central Public Information Officer or the State Public Information Officer, as the case may be, has, 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:
Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable
opportunity of being heard before any penalty is imposed on him:
Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State
Public Information Officer, as the case may be.
(2) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or
appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any
reasonable cause and persistently, failed 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 recommend for
disciplinary action against the Central Public Information Officer or the State Public Information Officer, as the case may be, under the service rules
applicable to him.â€
Although there is no specific mention in the Right to Information Act, 2005 where the State Information Commissioner can direct an enquiry into a
matter but considering that at the root of the matter relates the information sought under the Right to Information Act, 2005 and also considering the
fact that the State Information Commissioner is a statutory authority under the law, the direction given by the State Information Commissioner should
at least be considered as an advice and due weight must be given to it. Though ultimately the authority is not bound to follow the order of the State
Information Commissioner in this regard as the decision must ultimately be of the authority after application of mind to the available material on
record.
With the observations as above, the writ petition stands disposed. The order of the Commission shall be read in the light of the above observations.