FIR Against Public Information Officer. Bombay HC Ruling
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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
Keowords: #firagainstpio #firagainstcpio #firagainstpublicservant #firagainstgovernmentemployee
Refer Also: Vivek Kulkarni Vs State of Maharashtra & Othrs
