High Court of Punjab and HaryanaCWP/1877/2022disposed of

Gagnish Singh Khurana v. State Of Punjab And Others

2023-07-13Mr. Justice Vikas Bahl16 pages

CWP18772022

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%3 "(i) Kindly provide the certified copy of Brochure released by PSIEC before the allotment of Phase VIII, Focal Point, Ludhiana.

(ii) Kindly provide the minutes of meeting of PSIEC on which these amenities were added in the advertisement plan before the allotment.

(iii) Kindly provide the certified information on the map where the space for the amenities mentioned in brochure was space was marked. Kindly support your answer by providing the copy of Map.

(iv) Kindly provide the certified copy of the Budget expenditure out of the total budget which was earmarked for the provision of amenities mentioned in brochure. Support your answer with total budget papers.

(v) Kindly provide the details of all expenditure done by PSIEC in lieu of the amenities mentioned in aforesaid brochure. Support your answer with certified copy of account statements, vouchers etc."

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This can hardly be disputed that if certain information is available with a public authority, that information must necessarily be shared with the applicant under the Act unless such information is exempted from disclosure under one or more provisions of the Act. It is not uncommon in the Government departments to evade disclosure of the information taking the standard plea that the information sought by the applicant is not available. Ordinarily, the information which at some point of time or the other was available in the records of the Government, should continue to be available with the concerned department unless it has been destroyed in accordance with the rules framed by that department for destruction of old record. Therefore, whenever an information is sought and it is not readily available, a thorough attempt needs

to be made to search and locate the information wherever it may be available. It is only in a case where despite a thorough search and inquiry made by the responsible officer, it is concluded that the information sought by the applicant cannot be traced or was never available with the Government or has been destroyed in accordance with the rules of the concerned department that the CPIO/PIO would be justified in expressing his inability to provide the desired Information.

Even in the case where it is found that the desired information though available in the record of the Government at some point of time, cannot be traced despite best efforts made in this regard, the department concerned must necessarily fix the responsibility for the loss of the record and take appropriate departmental action against the officers/officials responsible for loss of the record. Unless such a course of action is adopted, it would be possible for any department/office, to deny the information which otherwise is not exempted from disclosure, wherever the said department/office finds it inconvenient to bring such information into public domain, and that in turn, would necessarily defeat the very objective behind enactment of the Right to Information Act.

Since the Commission has the power to direct disclosure of information provided, It is not exempted from such disclosure, it would also have the jurisdiction to direct an Inquiry into the matter wherever it is claimed by the PIO/CPIO that the information sought by the applicant is not traceable/readily traceable/currently traceable. Even in a case where the PIO/CPIO takes a plea that the information sought by the applicant was never available with the Government but, the Commission on the basis of the material available to it forms a prima facie opinion that the said information was in fact available with the Government, it would be justified in directing an inquiry by a responsible officer of the department/office

concerned, to again look into the matter rather deeply and verify whether such an information was actually available in the records of the Government at some point of time or not. After all, it is quite possible that the require Information may be located if a thorough search is made in which event, it could possible to supply it to the applicant. Fear of disciplinary action, against the person responsible for loss of the information, will also work as a deterrence against the willful suppression of the information, by vested interests. It would also be open to the Commission. to make an inquiry itself instead of directing an inquiry by the department/office concerned. Whether in a particular case, an inquiry ought to be made by the Commission or by the officer of the department/office concerned is a matter to be decided by the Commission in the facts and circumstances of each such case." # 7

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2 3*4 ,3 "ORDER This order may be read with reference to the previous order dated 27.05.2021. During the last hearing respondent has sent an affidavit as directed by the Commission vide diary no. 11501 dated 26.05.2021 mentioning therein that no such information is traceable/available in office record. 2.

Today again Sh. Gagnish Khurana states that he is not satisfied with the information provided.

I have gone through the affidavit as submitted by the respondent and have agreed with the same. Hence, the appeal case filed by the appellant is disposed of and closed. Copy of the order be sent to the parties.

Sd/< 20.07.2021 (Preety Chawla) State Information Commissioner Punjab"

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,3 "ORDER

This order may be read with reference to the previous order dated 07.04.2021, vide which the respondent was directed to provide copy of Brochure and Minutes of the Meeting to the appellant.

Today the appellant states that no information has been given to him so far.

The respondent Sh. Sunil Kumar states that they have sent an affidavit to the Commission Office.

The perusal of the file shows that the respondent has sent an affidavit as directed by the Commission vide diary No.11501 dated 26.05.2021 mentioning therein that the record demanded by the appellant of PSIEC has been searched and no such information is traceable/available in office record. The same is taken on record.

In view of the above the reply filed by the respondent appears to be convincing, but on the request of the appellant the case is adjourned on 20.07.2021 at 11.00 AM through CISCO<Webex (Video<Conferencing application) at 11.00 AM. Copy of the orders be sent to the parties."

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2 39 , 3 8 , "I, J.S Randhawa, PIO, PSIEC Limited, Sector<17, Chandigarh do hereby solemnly affirm and declare as under:<

1. That RTI applicant Sh. Gagnish Singh Khurana vide his RTI application dated 11.11.2019 has sought the information at point no. 1 & 2 as under:<

(i) Kindly provide the certified copy of brochure released by PSIEC before the allotment of Phase VIII, Focal Point, Ludhiana.

(ii) Kindly provide the minutes of meeting of PSIEC on which these amenities were added in the advertisement plan before the allotment.

2. That the record of PSIEĊ has been searched and no such information is traceable/ available in office record. Deponent"

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"M/s Kranti Associates Pvt. Ltd. & Anr. Vs.

Sh. Masood Ahmed Khan & Others"

2010(3) SCC (Civil) 852 3 "xxx xxx 51.

Summarizing the above discussion, this Court holds: a.

In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.

A quasijudicial authority must record reasons in support of its conclusions.

Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.

Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasijudicial or even administrative power.

Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.

Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasijudicial and even by administrative bodies.

Reasons facilitate the process of judicial review by superior Courts.

The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice.

Judicial or even quasijudicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. j.

Insistence on reason is a requirement for both judicial accountability and transparency.

If a Judge or a quasi<judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. l.

Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or `rubberstamp reasons' is not to be equated with a valid decision making process. m.

It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731<737).

Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of

Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".

In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process".

Xxx xxx"

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:Banarsi Das Cotton Mills (P) Ltd. Vs. State of Haryana and another; 1997(1) PLR 17 , 3

"xxx xxx

3. Although the impugned order/notice has been challenged on various grounds, we are of the opinion that the same is liable to be quashed on the short ground it does not contain reasons. There can be no manner of doubt that while deciding the appeal the Higher Level Screening Committee acts as a quasi judicial authority and it is duty bond to record reasons in support of its decision. The recording of reasons and communication thereof is imperative for compliance of the principles of natural justice which must inform the proceedings of every quasi judicial body and even in the absence of a statutory provision or administrative instructions requiring recording of reasons in support of the orders, the quasi judicial authority must pass speaking orders so as to stand the test of scrutiny.

In Testeels Ltd. v. N.M. Desai, Conciliation Officer, A.I.R. 1970 Gujarat 1 (F.B.), Full Bench of the Gujarat High

Court held that the jurisdiction of the High Court under Article 226 and that of the Supreme Court under Article 136 of the Constitution of India cannot be stultified by administrative authorities by passing non<speaking orders.

The requirement of recording of reasons and communication thereof by quasi judicial authorities has been emphasised in several judgments of the Supreme Court including a Constitution Bench Judgment in S.N. Mukherjee v. Union of India, A.I.R. 1990 S.C. 1984.

6. Similar view has been expressed by a Division Bench of this Court in C.W.P. No. 10769 of 1995 (Haryana Cotton Mills P. Ltd. Tohana v. State of Haryana and Ors.), decided on 8.12.1995.

7. In view of the above legal position, we quash the rejection of the petitioner's appeal by the Higher Level Screening Committee and direct that Higher Level Screening Committee shall reconsider the appeal filed by the petitioner and pass a fresh order after giving opportunity of hearing to the petitioner. The High Level Screening Committee is further directed to decide the appeal afresh by passing a reasoned order within a period of one month after issuing notice to the petitioner for a specific date of hearing, on receipt of a copy of this order. The registry of this Court is directed to send a copy of this order to respondent No. 2.

xxx xxx"

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