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K.K. Jayaprakash v/s State Of Kerala, Represented by The Chief Secretary Secretariat, Thiruvananthapuram & Others

    WP. (C). No. 26397 of 2022
    Decided On, 19 August 2022
    At, High Court of Kerala
    By, THE HONOURABLE MR. JUSTICE MURALI PURUSHOTHAMAN
    For the Petitioner: K.C. Eldho, S. Bijilal, Arundhathy K. Alias, Advocates. For the Respondents: Peter Jose Christo, R2 & R3, S.P. Aravindakshan Pillay, Advocates.


Judgment Text
1. Whether the statutory right of appeal under the Right to Information Act, 2005 (hereinafter referred to as 'the RTI Act') is rendered inefficacious in the absence of a formal order on the request for information is the question posed for consideration in this writ petition.

2. The petitioner made Ext.P1 request for information under the RTI Act before the 3rd respondent Public Information Officer ('PIO', for short). The grievance of the petitioner is that, even after remitting the required fee, the request for information is not disposed of by the PIO within the time stipulated under the RTI Act. The petitioner has, accordingly, preferred this writ petition for the following reliefs:

a. issue a writ of mandamus commanding the 1st respondent to initiate appropriate action for omitting to exercise the authority of law vested in the 3rd respondent;

b. issue a writ of mandamus commanding the respondent herein to act upon Exhibit P1 in a time bound manner and in accordance with law.

c. issue a writ of mandamus commanding the respondent herein to pay the petitioner penalty as envisaged under section 20 of the Right to Information Act, 2005 computed from 21.03.2022 and in accordance with law.

3. Heard the learned counsel for the petitioner, the learned Government Pleader for the 1st respondent and the learned Standing Counsel for respondents 2 and 3.

4. According to the petitioner, the 3rd respondent, who is the PIO, is bound to dispose of Ext.P1 request, within the period specified under Section 7(1) of the RTI Act. The petitioner submits that, since the PIO has not passed an 'order' refusing his request, he is unable to avail his statutory right of appeal provided under Section 19 of the RTI Act. The learned counsel for the petitioner refers to Black's Law Dictionary and submits that, the word “refuse” involves 'an act of the will' and there shall be formal order refusing the request to invoke the appellate remedy.

5. Section 7 of the RTI Act deals with 'disposal of request' and Section 7(1) reads as follows:

S.7(1): Subject to the proviso to sub-section (2) of section 5 or the proviso to sub-section (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9:

Provided that where the information sought for concerns the life or liberty of a person, the same shall be provided within forty-eight hours of the receipt of the request.

Section 7(2) of the RTI Act reads thus:

S.7(2): If the Central Public Information Officer or State Public Information Officer, as the case may be, fails to give decision on the request for information within the period specified under sub-section (1), the Central Public Information Officer or State Public Information Officer, as the case may be, shall be deemed to have refused the request.

6. Section 19 of the RTI Act deals with 'appeal' and Section 19 (1) reads as under:

19(1) “Any person who, does not receive a decision within the time specified in subsection (1) or clause (a) of sub-section (3) of section 7, or is aggrieved by a decision of the Central Public Information Officer or 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 State Public Information Officer as the case may be, in each public authority”.

The RTI Act also provides for second appeal to the State Information Commission.

7. Section 7 (1) of the RTI Act provides for disposal of request for information within thirty days of receipt of the request either by providing the information or by rejecting the request. Section 7(2) provides that, if the PIO fails to give a decision on the request for information within the time frame provided under Section 7(1) of the RTI Act, the said officer shall be deemed to have refused the request. Thus, failure to give decision on the request for information within the period specified shall be deemed to be refusal of request. Section 19 (1) of the RTI Act provides that, any person who, does not receive a decision within the time specified in sub-section (1) of Section 7 may, within thirty days from the expiry of such period prefer an appeal to such officer referred to therein. Appeal is provided against deemed refusal of request as well as against order of rejection of request for information.

8.

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The case of the petitioner is that the PIO has failed to give decision on the request for information within the period specified. If so, there is deemed refusal of request for information. The petitioner has to invoke the provisions under Section 19(1) of the RTI Act and the writ petition filed under Article 226 of the Constitution is not maintainable. Accordingly, without prejudice to the right of the petitioner to avail the remedy as provided under the RTI Act, the writ petition is dismissed. There will be no order as to costs.
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