MUSSOORIE DEHRADUN DEVELOPMENT AUTHORITY Vs. CHIEF INFORMATION COMMISSIONER

JUDGEMENT

(1.) BRIEF facts giving rise to the petition are that on 26-6-2006, the respondent Nos. 3 and 4, namely, Shri Pradeep Dutta and Shri Jai Deep Dutta moved an application under S.6 of the 'Right to Information Act, 2005' (hereinafter referred to as the 'Act'), whereby in addition to the other information contained in the application, the certified copy of approved plan and layout plan of Hotel Pacific as well as the sanction letter were sought from the petitioner to which the petitioner responded vice communication No. 351, dated 24-7-2008 whereby particulars relating to the required file number and other details were sought from the applicants / respondent Nos. 3 and 4 so as to facilitate them responding to the requisite information. It is alleged in the petition that the respondent Nos. 3 and 4 instead of giving information as sought by the petitioner, filed First Appeal under S.19(1) of the 'Act' before the Appellate Departmental Authority, which was decided on 22-10-2008. In the order dated 22-10-2008 the First Appellate Authority, MDDA, Dehradun stated that file No. 1351/86 is not traceable and the petitioner is making intensive efforts for locating the same and as soon as the file is located the information sought would be provided. Thereafter, the respondent Nos. 3 and 4 on 1-12-2008 preferred Second Appeal No. A / 1045/2008 under S.19(3) of the 'Act' before the State Information Commission, Uttarakhand. On 18-2-2009, the Chief Information Commissioner decided the appeal and found the petitioner responsible for the missing of required file. It was ordered that the file be reconstructed and further a sum of Rs. 50,000/- was imposed on the petitioner under S.19(8)(b) of the 'Act' towards damages. Thereafter, the petitioner filed an application on 9-3-2009 seeking recall of the order dated 18-2-2009, but instead of deciding the recall application, the respondent No. 1 issued a show cause notice on 6-4-2009 and response thereof was filed by the petitioner on 22-4-2009. It has been alleged in the petition that the respondent No. 1 without considering the recall application of the petitioner, passed an order dated 15-5-2009 which is against the provisions of the 'Act' and is without authority and jurisdiction. Aggrieved with the orders dated 18-2-2009 and the subsequent order dated 15-5-2009 passed by respondent No. 1, present writ petition has been filed.

(2.) RESPONDENT Nos. 3 and 4 filed their joint counter - affidavit in which they have submitted that since the petitioner did not comply with the statutory provisions of the 'Act', therefore the respondents filed an appeal under the 'Act'. The respondents have submitted that letter dated 22-10-2008, addressed to the respondents by the Vice - President, MDDA, itself illustrates that the Vice - President, MDDA himself admitted his mistake by putting an endorsement that 'map file No. 1356/86 is not traceable in his office' which indicate wilful negligent on the part of the authority concerned because the petitioner is wholly responsible in the affairs of his office, therefore, he cannot escape from his liability being conferred upon him under the law and the order passed by the respondent No. 1 is valid. The respondent Nos. 3 and 4 have further submitted that since there is no such provision under the 'Act' to move an application seeking recall / review of the order passed by the Chief Information Commissioner, as such the said application is not legally maintainable.

(3.) SHRI Kanwaljeet Singh and Ms. Pooja Banga, the learned counsel for the petitioner submitted that final order in the appeal under S.19(3) of the 'Act' could have been passed only by the State Information Commission and not by the Chief Information Commissioner / respondent No. 1 who has gone beyond his jurisdiction. They argued that the impugned order has been passed by invoking S.19(8)(b) of the 'Act' which could have been passed by the State Information Commissioner. The 'Act' provides / secure access to information under the control of Public Authorities and the information which is lost, can only be given after reconstruction of the concerned file. The counsel for the petitioner further argued that respondent No. 1 also had no jurisdiction to pass a punitive order, as the respondent Nos. 3 and 4 did not pray for any penalty to be imposed on the petitioner, therefore, the order imposing penalty / damages / compensation on the petitioner, is against the provisions of the 'Act' and is totally without jurisdiction. In support of their arguments the learned counsel for the petitioner relied on AIR 2007 Himachal Pradesh 63, Virender Kumar v. P.S. Rana, AIR 2009 (NOC) 254 Kar.