FIR Against Public Information Officer. Bombay HC Ruling

 

Bombay High Court Writ Public Information

cwp1484.19

1

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY

 

                        BENCH AT AURANGABAD

 

            CRIMINAL WRIT PETITION NO.1484 OF 2019

 

Saudagar Mohammad Rafi,

Age-48 years, Occu:Chairman / Social Worker,

R/o-Mu. Po. Walandi,

Taluka Devni, District-Latur.

                                                                    ...PETITIONER

VERSUS

1) The State of Maharashtra,

Through its Chief Secretary,

Government of Maharashtra,

Mantralaya, Mumbai-400032,

2) The State Information Commission,

Through State Information Commissioner,

Having Bench at Aurangabad,

3) The Divisional Commissioner, Aurangabad,

Divisional Commissioner Office,

Taluka and District-Aurangabad,

4) The Collector, Latur,

Collector Office,

Taluka and District-Latur,

5) The Section Officer and Information Officer,

Urban Development Department,

Mantralaya, Mumbai – 400032,

6) The Deputy Collector,

Deputy Collector Office, Nilanga,

Taluka-Nilanga, District-Latur,

7) The Divisional Commissioner and

Regional Director, Municipal Administration,

Aurangabad, Taluka and District-Aurangabad,

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8) First Appellate Officer and Chief Officer,

Nagar Panchayat Office,

Shirur Anantpal, District-Latur,

9) Public Information Officer,

Nagar Panchayat Shirur Anantpal,

Taluka-Shirur Anantpal,

District-Latur.

                                                                              ...RESPONDENTS

...

Mr.P.S. Magar Advocate for Petitioner.

Mr.R.D. Sanap, A.P.P. for Respondent Nos. 1 to 7.

Mr.T.M. Venjane Advocate for Respondent No.8 and 9.

...

CORAM: SMT. VIBHA KANKANWADI AND

ABHAY S. WAGHWASE, JJ.

DATE OF RESERVING ORDER : 5th DECEMBER 2022

DATE OF PRONOUNCING ORDER : 17th JANUARY 2023

ORDER [PER SMT. VIBHA KANKANWADI, J.] :


1. By invoking the constitutional powers of this Court, the

petitioner, who is a social worker and Right to Information

activist, prays that the respondents be directed to take action

against the officers, staff under Sections 4, 7, 8 and 9 of the

Maharashtra Public Records Act, 2005 (hereinafter referred to as

“MPR Act”) and also to register a criminal offence against the

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officer and the staff responsible for the unavailability / purposely

misplacing of the said record.


2. Heard learned Advocate appearing for the petitioner,

learned APP Mr. Sanap appearing for respondent Nos. 1 to 7 and

learned Advocate appearing for respondent Nos.8 and 9.


3. Learned Advocate for the petitioner submits that the

petitioner sought information by application dated 16th February

2017 under the Right to Information Act, 2005 from respondent

No.9 regarding the mobile towers in the area of Shirur Anantpal,

Nagar Panchayat for the duration from 1st January 2014 to 16th

February 2017. The information was not supplied by respondent

No.9 and therefore, petitioner filed First Appeal dated 18th March

2017 before the appropriate authority. Even the Appeal was not

heard, therefore, he gave letter to respondent No.8 on 24th April

2017 that some order be passed so that he can approach the

higher authority. Even after the said letter, no order was passed

and therefore, he issued notice on 25th May 2017 for taking

action. Thereafter, the petitioner filed Second Appeal bearing

No.3178 of 2017 on 10th July 2017, under Section 19(3) of the

Right to Information Act. The Second Appeal was still pending

when the petitioner preferred present Writ Petition. The

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petitioner, in the meanwhile, made correspondence and

respondent No.8 informed that no objection certificate or any

other record regarding mobile tower during the tenure of then

Gram Panchayat is not available. Letter was also given on 15th

May 2018 to respondent No.8 that, as the record was not

available in Shirur Anantpal Nagar Panchayat, action be taken

under Section 4, 7, 8 and 9 of the MPR Act. The petitioner

contends that time and again he is making applications and

seeking information, however, it is not purposefully supplied.

There is huge corruption under the pretext that mobile towers

are erected. When information is sought from respondent Nos.1

to 8 and there is no response, it violates fundamental rights of

the petitioner under Article 14 of the Constitution of India,

hence the present Writ Petition.


4. Learned Advocate for the petitioner has taken us through

various communications and applications made by the petitioner

to various authorities i.e. respondents seeking information

regarding the mobile towers, seeking copies of rent agreement

etc. and it is stated that no information has been supplied.

Learned Advocate for the petitioner relies on the decision of this

Court at Principal Seat in Writ Petition No.6961 of 2012

decided on 27th February 2015 (Vivek Vishnupant Kulkarni

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vs. the State of Maharashtra and others), wherein it has

been held that Section 9 of the MPR Act clearly mandates that

whoever contravenes the provisions of Section 4 or Section 8 of

the said Act, shall be liable to punish. It has been submitted that

the information which was sought by the petitioner was in

respect of public records and merely by saying that it is not

available, nobody can shirk his or her responsibility, therefore,

there is necessity to take criminal action against the erring

officers / employees.


5. Learned APP has strongly objected the petition and

submitted that it cannot be said that the record has been

destroyed for unreasonable grounds and unless it is proved

prima facie, no such directions can be issued.


6. Learned Advocate representing respondent Nos.8 and 9

has relied on the affidavit filed by Shri Ajinkya Haridas Randive,

serving as Chief Officer, Nagar Panchayat, Shirur Anantpal,

District-Latur. In his affidavit, the concerned officer has admitted

that the petitioner had preferred said application under the

provisions of Right to Information Act on 16th February 2017 and

it was received by the Nagar Panchayat on 9th March 2018.

Information was supplied to the petitioner by him on 20th March

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2018. He states that the Nagar Panchayat was established on

24th February 2015 and there are towers of mobile companies in

Nagar Panchayat area, however, the Nagar Panchayat has not

issued no objection certificate nor had entered into any

agreement. The record from Gram Panchayat is not available

with the Nagar Panchayat. The record which is not available

cannot be asked to be supplied. However, it is submitted that

taxes have been recovered from the said mobile companies. It is

also stated that in response to the applications issued by the

petitioner, notice was given to the petitioner to remain present in

the office of Nagar Panchayat, however, that notice was refused

by the petitioner. Notice was also sent on the e-mail address of

the petitioner to remain present, however petitioner did not

attend the office of Nagar Panchayat. Petitioner is not resident of

Shirur Anantpal and he has no concern with the affairs at Shirur

Anantpal. Only to pressurize the Government Officers and to

harass them, there is misuse of the Right to Information Act. In

fact the informant is running weekly newspaper, namely,

Jansamanyacha Kayada” and he was also demanding money

from the officers and employees of various Government offices

for giving advertisement in the said news paper. Since the

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Petition has been filed with ulterior motive, it deserves to be

dismissed.


7. Learned Advocate for respondent Nos.8 and 9 has also

brought to our notice that Second Appeal filed before the State

Information Commissioner, Bench at Aurangabad came to be

decided on 11th May 2020 and the learned Commissioner has

upheld the decision of the first appellate authority, and also

imposed cost of Rs.5,000/- to the information officer, Nagar

Panchayat, Shirur Anantpal, District-Latur, which was imposed

under Section 20(1) of the Right to Information Act.


8. At the outset, it is to be noted that there are two wings to

the dispute, one is as regards not supplying the information to

the petitioner in view of his application under the Right to

Information Act, for which it appears that the Second Appeal was

preferred and it has been decided. However, as regards the

present petition is concerned, the petitioner is praying for

criminal action to be taken under the MPR Act. There is no doubt

that the information that was sought, was in respect of the

public record as defined under the MPR Act. It would be

convenient, to quote the provisions of Section 4, 7, 8 and 9 of

the MPR Act, which reads thus:-

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“4. No person shall take or cause to be taken out of the

State of Maharashtra any public records without the prior

approval of the State Government :

Provided that no such prior approval shall be required

if any public records are taken or sent, out of the State of

Maharashtra for any official purpose.”


“7. (1) The records officer shall in the event of any

unauthorised removal, destruction, defacement or alteration

of any public records under his charge, forthwith take

appropriate action for the recovery or restoration of such

public records.


(2) The records officer shall submit a report in writing to the

Director without any delay on any information about any

unauthorised removal, destruction, defacement or alteration

of any public records under his charge and about the action

initiated by him and shall take action as he may deem

necessary subject to the directions, if any, given by the

Director.


(3) The records officer may seek assistance from any

Government officer or any other person for the purpose of

recovery or restoration of the public records and such officer

or person shall render all assistance to the records officer.”

“8. (1) Save as otherwise provided in any law for the time

being in force, no public record shall be destroyed or

otherwise disposed of except in such manner and subject to

such conditions as may be prescribed.

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(2) No record, which is more than hundred years old on the

date of commencement of the Maharashtra Public Records

Act, 2005, shall be destroyed except where in the opinion of

the Director, it is so defaced or is in such condition that it

cannot be put to any archival use.”

“9. Whoever contravenes any of the provisions of section 4

or section 8 shall be punishable with imprisonment for a

term which may extend to five years or with fine which may

extend to ten thousand rupees or with both.”


9. In Vivek Vishnupant Kulkarni vs. the State of

Maharashtra and others (supra), it has been held by this

Court that as per Section 9 of MPR Act, contravention of the

provisions of Section 4 or 8 is made punishable. Section 4 of the

MPR Act speaks about taking out public records without prior

approval of the State Government. Here no such case is made

out that anybody has taken out the public record without the

approval of the State Government. Unless the facts are brought

invoking the ingredients of the offence, directions to register

offence cannot be issued. Further, Section 8 of the Act

contemplates about destruction or otherwise dispose of the

public record except in such manner and subject to such

conditions as may be prescribed. Here, merely because the

record is not available, we cannot jump to the conclusion that it

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is destroyed or otherwise disposed of. The information that was

supplied to the petitioner on 20th March 2018 would show that

Nagar Panchayat, since its inception i.e. 24th February 2015, has

not granted any permission for erection of mobile towers and has

not entered into any agreement. The information that was called

by the petitioner was from 1st January 2014 to 16th February

2017. If there was no occasion for grant of permission and

entering into any agreement from 24th February 2015 till 16th

February 2017, then question of supplying the copies of the

same will not arise. The period prior to 24th February 2015 i.e.

from 1st January 2014 relates to the Gram Panchayat and unless

it is shown that the entire record has been handed over to the

Nagar Panchayat authorities by the then Gram Panchayat;

officers of the Nagar Panchayat cannot be held responsible for

supply of those documents. Though the Right to Information Act

may not be applicable to the mobile companies, however, the

petitioner appears to have not made any correspondence with

the mobile companies.


10. As regards non-supply of the information is concerned,

action appears to have been taken and cost is also imposed,

therefore, the respondents cannot be held responsible in any

way for the action to be taken under Section 9 of the MPR Act.

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Right to Information Act came into force to provide for setting

out the practical regime of right to information for citizens to

secure access to information under the control of public

authorities, in order to promote transparency and accountability

in the working of every public authority. However, this Act should

not be misused by anybody.


11. We would like to reiterate that non-availability of the

record with the Nagar Panchayat cannot be inferred as

destruction of the record and therefore, this cannot be taken as

a fit case to exercise constitutional powers of this Court to direct

registration of the offence.


12. For the aforesaid reasons, the Writ Petition stands

rejected.


[ABHAY S. WAGHWASE] [SMT. VIBHA KANKANWADI]

JUDGE JUDGE

                                                                                asb/JAN23

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