Central Information Commission

Raghunathan K.P. Vs. CPIO, Station Headquarter

MANU/CI/0374/2018

06.06.2018

Right to Information

Mere apprehensions of misuse of information or alleged inconspicuous actions of a citizen cannot take away their right to information

The Complainant sought information regarding under construction officer's mess, accommodation in Coastal Regulatory Zone in terms of copy of the NOC obtained from KCZMA, copy of Form-I of Annexure IV (CRZ) filled by LMA and submitted to KCZMA and site plan submitted to KCZMA. Complainant stated that he has not received the information till date and reiterated the grounds of his Complaint, wherein he has stated that Col. Purushothaman of the Respondent office harassed him and his family, by sending a police complaint against him on the grounds of suspecting him as a spy. He also enclosed a copy of this Police Complaint along with his Complaint.

The crux of the police complaint is that, Complainant has been seeking various information related to 'infrastructure development, employment of personnel, name and appointment of Commanders, location of various establishments in Kannur Cantonment through RTI and other sources'. It was also recommended that, activities of the Complainant be suspected, his movements be tracked and action be initiated against him by registering a FIR and asked to employ various state agencies for this purpose.

In the facts of the case, Commission deems it appropriate to direct an inquiry into the matter in as much as, filing a police complaint primarily citing suspicion upon accessing information under Right to Information Act, 2005/RTI Act appears far too stretched. In this particular case, the police complaint has been clearly filed subsequent to the filing of the RTI Application under reference. Even if the police complaint was filed following any stipulated protocol, the CPIO or the custodian of information had no right to deny the information to the Complainant unless they could exempt the same under any of the provisions of Section 8 and/or 9 of the RTI Act. The conduct of the CPIO amounts to deemed refusal to provide information on the RTI Application under reference.

As per Section 22 of the RTI Act, even if protocol of any other nature subsisted, it was the statutory duty of the CPIO to respond on the RTI Application by either providing the information or denying it under appropriate exemption clause of the RTI Act.

Mere suspicion of a RTI Applicant being a spy does not in any way justify the deemed refusal of the CPIO to provide information on the RTI Application. It will not be out of place to say that in the given circumstances, the conduct of the CPIO and Col. Purushotaman appears to be nothing short of causing harassment to a citizen who chose to file RTI Applications.

Commission has perused the inquiry report and all facts on record extensively and comes to the conclusion that, it has been established beyond reasonable doubt that lodging of FIR was in relation to the Complaint filed by Complainant with District Collector Office and not particularly with regard to the RTI Application under reference. The gravity of the issue as brought out in the inquiry report leaves little scope for the Commission to question the rationale of Station Commander in having recommended the lodging of FIR.

As observed in the interim decision, PIO's action of not having provided any reply on the RTI Application amounts to a deemed refusal to provide information. If PIO had reservations that the disclosure of information would compromise on national security, he could have replied on the RTI Application citing the appropriate denial clause of RTI Act. Merely apprehending that disclosure of information would impede on security aspects does not warrant inaction on a RTI Application.

Notwithstanding, the CPIO is severely warned to remain careful in future while dealing with matters under RTI Act. CPIO is not at liberty to take upon him the decision of not replying on RTI Applications, as it is a statutory duty cast upon him, it cannot be abdicated as has been done in the instant case. Mere apprehensions of misuse of information or alleged inconspicuous actions of a citizen cannot take away their right to information. CPIO or any officer of Respondent office does not have the right to obstruct or intervene with a citizen's right to information in the manner it has been done in the instant case.

Tags : Information Disclosure Denial Suspicion

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High Court of Gauhati

Ibrahim Ali Barbhuiya and Ors. Vs. Musstt Rustana Begum and Ors.

MANU/GH/0500/2018

05.06.2018

Civil

Without making a prayer for permanent injunction in plaint, no temporary injunction can be granted

By filing Review Petition, the Petitioners have prayed for review of the said order dated 15th September, 2017. In the review application, the Petitioners have stated that, they are in actual possession of the land described in Schedule 2 to 5 of the plaint and it is projected that after dismissal of the suit, the contesting Respondents were threatening to dispossess the Petitioners from the suit land and, as such, the Petitioners apprehend that, the Petitioners may either be dispossessed from the suit property during the pendency of the connected appeal, or that suit land may be disposed of. The connected I.A.(C) is an application under Section 94(c), read with Section 151 of Code of Civil Procedure, 1908 (CPC), wherein the review petitioner have prayed for ad-interim injunction for restraining the opposite parties from disturbing the possession of the Petitioners in respect of the land.

In the review application, there is no statement that the English translated copy of the plaint as presented in the review petition or as enclosed to the memo of appeal was incorrectly translated and typed which contained incorrect facts. It is by way of an additional affidavit filed on 07th March, 2018 that another English version of the plaint has been filed and it is been projected that, the previously filed copy of the plaint was incorrect. Under the circumstances, present Court is accepting the submissions made by the Respondents that, in the absence of any statement by the Petitioner that there any error in translating and filing the copy of the plaint filed in the connected RFA 63/2016, the existence of mistake cannot be accepted on a mere oral submissions made by the Petitioners.

The provisions of Order XLVII Rule 3 of CPC provides for the form of review and it is prescribed that, the provisions as to the form of preferring appeals shall mutatis mutandis apply to an application for review. Therefore, it is envisaged that the application for review should be based on the grounds on which such review is preferred in terms of Order XLI Rule 1(2) of CPC, which provides for contents of memorandum of appeal. The provisions of Order XLI Rule 2 of CPC provides for the grounds which may be taken in appeal and it is prescribed that, the Appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal and it is further circumscribed by proviso of Rule 2 of Order XLI of CPC to the effect that, Court shall not rest its decision on any other ground unless the party may be effected thereof has had a sufficient opportunity of contesting the case on that ground.

Previous application for injunction vide I.A.(C) 1632/2016 was under Order XXXIX Rules 1 and 2 CPC, as such, it cannot be accepted that, in the subsequent prayer for ad-interim injunction, there was any situation not covered by the provisions of Order XXXIX Rules 1 and 2 of CPC in this regard, it is required to be mentioned that, present Court in the case of Gadadhar Barman Vs. Ranendra Mohan Paul, had held that without making a prayer for permanent injunction in the plaint, no temporary injunction can be granted.

Court does not find present case to be fit case for grant of ad-interim injunction more so, in view of the fact that, by the order dated 19th September, 2017 under review, not only this Court had dismissed the prayer for ad-interim injunction made by I.A.(C) 1632/2016, but the ad-interim injunction passed earlier was set aside in connection with I.A.(C) 1345/2017. Review Petition as well as application dismissed.

Relevant

Gadadhar Barman Vs. Ranendra Mohan Paul, MANU/GH/0110/1997
: (1998) 1 GLJ 22 : (1998) 1 GLR 383 : 1998 (1) GLT 137

Tags : Possession Injunction Grant

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High Court of Gauhati

The Union of India Vs. Shree Gopal Enterprises

MANU/GH/0499/2018

05.06.2018

Civil

Railway administration cannot be held liable for preserving relevant documents after expiry of 6 months from date of delivery of consignment

Present appeal under Section 23 of the Railway Claims Tribunal Act, 1987 is against the judgment and order passed by the learned Railway Claims Tribunal. Issue involved in present case is whether there was any requirement of the Railway Administration to produce rivets, seals/labels etc. and unloading tally book in respect of consignments are booked at Railway risk under "said to contain" basis and that whether the impugned judgment is sustainable in facts and in law.

In instant case, no request was made to the NF Railway Administration by the Respondent within the prescribed time of six months period to preserve the seal and card labels. In the opinion of present Court, unless either by a letter or by an order by the learned Tribunal, the Railway administration is communicated to preserve the relevant documents like, the original RR, forwarding note, transit report and seal and card labels, loading and unloading tally book, the Railway Administration was under no obligation to preserve and to produce such seals, labels, documents, before the learned Railway Claims Tribunal. Merely because at one point of time, an allegation of shortage of consignment is made, the Railway administration are not obliged to preserve the necessary documents for unlimited time.

Rule 1714 of IRCM-II cannot be invoked if demand for preservation of such documents are not made within the period of six months from the date of delivery of consignment. The Railways had no notice to produce the card and seal labels. The Respondent had filed a petition for production of such document after about 10 years. On such petition, the Railways had taken a stand that, the documents were not available. Present Court finds no infirmity in the said stand, which is not violative of Rule 1714 of IRCM-II.

Under the circumstances, notwithstanding that the goods were transported at "Railway Risk" which, as stated in the bar entails 20% excess charge to cover for the Railway risk, as the goods were booked under "said to contain" basis, the Railway Administration shall not be responsible for the loss. There was no initial complaint that, the wagon seals and card labels were absent, rivet seals were broken or that the door was in the open condition at the time of unloading and that stacks of goods were in disturbed condition with wagon body found broken, damage and having cut holes. Hence, said condition of the wagons having not been brought to the notice of the Appellant, it cannot be concluded that the Railways were at fault for the short delivery of goods.

As the railway administration was not asked to preserve the relevant documents, prior to expiry of 6 months from the date of delivery of consignment, there was no requirement of the Railway Administration to preserve and/or to produce the rivets, seal and card labels, loading, unloading tally book, etc. in respect of consignments are booked at Railway risk under "said to contain" basis.

It is seen that in present case, the shortage is being projected to be a loss of 1,313 kg. sugar. In present case, the Respondent did not produce any beejuk, or did not tender any other evidence before the learned Tribunal to prove the record of the actual weight of sugar per bag. From the materials available on record, it does not appear that, any prayer was made before the Railways for open delivery of consignment of sugar. Under the circumstances, when the Railways administration did not check the condition or weight of every bag of sugar before loading, present Court finds it impossible to concur with the finding by the learned Tribunal that, the Railways was responsible for the shortage of 1,313 kg. sugar.

Such loss and/or shortage of 1,313 kg. Sugar falls within the exception as provided under sub-section (g) and (h) of the Section 93 of the Railways Act, 1989. The Railways cannot be held to be responsible for compensating the loss amounting to Rs. 22,321. Accordingly, the computation/assessment of loss is also not found sustainable. The said finding by the learned Railway Claims Tribunal is interfered with and is set aside. Appeal stands allowed. Consequently, the claim petition stands dismissed.

Tags : Loss Compensation Validity

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High Court of Madras

I. Linga Bhaskar and Ors. Vs. The State and Ors.

MANU/TN/2474/2018

05.06.2018

Criminal

An emoji is sent to express ones feeling about something, it cannot be treated as an overt act on others.

In facts of present case, all the Petitioners are working in BSNL Department and the Second Respondent/de-facto complainant is also in BSNL Department as Divisional Engineer (Rural). It is stated that, the Petitioners as well as the Second Respondent are all members of an official whatsapp group. It is admitted that, the official whatsapp group was intended to be used by the members for sharing of any innovative works/ideas for improving the quality of service of BSNL.

The Second Respondent has posted the video footage of three customers who have spoken about their grievance about the BSNL coverage. It appears that, the Petitioners are mainly indoor staff of BSNL whereas the Second Respondent is an officer engaged as an outdoor staff. Since the conversation uploaded by the Second Respondent was taken as an act to degrade the indoor staff, the Petitioners and few others have posted an emoji, namely, a smiling face with tears. Some of the Petitioners felt that, the conversation uploaded by the second Respondent is likely to de-motivate the executives and is likely to tarnish the image of BSNL, they requested the members of SNEA by sending similar emojis in the whatsapp group to be shared by other members of the group. Following this, the Petitioners who are the accused in the complaint have posted the same emoji, a cartoon face with joy but tears in the eyes. Annoyed by this, the Second respondent gave a complaint.

In the complaint, the Petitioners 1 and 2 were shown as persons who have induced other members to post crying smiley faces with an intention to humiliate the Second respondent. The details of posting of such emojis by other petitioners was given in the complaint. A case was registered for offences punishable under Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 2002, Section 3(1)(r), 3(1)(t), 3(1)(u) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 and Section 67 of Information Technology Act, 2000/Act. Challenging the First Information Report, which is registered in Crime No. 206 of 2017 on the file of the first respondent, the above Criminal Original Petition is filed.

In present case, a face with tears of joy was posted by the petitioners who are all members of a whatsapp group in response to the video footage that was uploaded by the Second Respondent. It is admitted that, the emojis are posted to convey numerous feelings. In the present context, where the Petitioners and the second Respondents are members of the same whatsapp group and they are all employees of BSNL, the question is whether the Petitioners have committed the offence alleged against them. When it is accepted that an emoji is sent to express ones feeling about something, it cannot be treated as an overt act on others. It is a comment may be intended to ridicule or to show one's disapproval in a given context.

From the reading of Section 67 of Act, it can be seen that this provision prohibits publication of information that is obscene in electronic form. The prohibition against the obscenity as contemplated under Section 67 of the Act in public interest is violated only when a person publishes or transmits any material which is lascivious or appeals to prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely to read, see or hear the matter contained in those materials. In present case, certainly, the allegations do not indicate any publication of obscene material which is lascivious or appeals to prurient interest. The object of Section 67 of Act is, therefore, about a publication revealing a over sexual interest or desire or encouraging an excessive interest in sexual matters. Hence, this Court is of the clear opinion that the complaint do not disclose an offence under Section 67 of Act.

Harassment means any indecent act or by a man which causes or is likely to cause intimidation, fear, shame or embarrassment, including abusing or causing hurt or nuisance or assault or use of force. The Act is intended to punish person who does something in order to outrage women's modesty. In several decisions of the Hon'ble Supreme Court, harassment of women has been dealt with. The allegation is about the posting of an emoji in a whatsapp group shared by the group of persons. The posting of emoji is to express ones feeling. It is an act that may offend the second respondent but that is not an act attracting Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 1998.

In present case, it is not the case in the complaint that, the smiley was intended to humiliate the Second Respondent for she being a member of Scheduled Caste/Scheduled Tribes. In such circumstances, present Court is unable to find any reason to sustain the complaint as one attracting the provisions of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015. It is also admitted that, some of the Petitioners belong to SC/ST community. The reading of the entire contents of the FIR and the allegations made against the Petitioners do not attract Section 3(1)(r), 3(1)(t), 3(1)(u) of Act, 2015.

When no cognizable offence is found on the face of the complaint, the First Information Report is liable to be quashed. In the case on hand the Petitioners and the Second Respondent are the members of a whatsapp group. Everyone has a right to express their feelings and share their idea. The face of crying smiley is to comment about the idea of Second respondent in publishing or uploading a video of complaints made by BSNL customers regarding deficiencies in BSNL coverage. Every person has got indefeasible right to express what he feels. The Petitioners who are working as executives and staff of BSNL along with second respondent ought not to have indulged in posting such emoji in the interest of BSNL since whatsapp group is formed to promote team spirit. Such complaints by the Second Respondent who is working as a Divisional Engineer (Rural) will pave way for other complications and friction among members which will be detriment to the interest of BSNL. The First Petitioner has filed an affidavit on behalf of all the Petitioners, recording their regret for posting such smileys. Accordingly, this Criminal Original Petition is allowed and the First Information Report on the file of the first respondent is quashed.

Tags : Cognizance FIR Quashing of

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National Consumer Disputes Redressal Commission

Shreya Milind Nimonkar Vs. Seema Shanbhag and Ors.

MANU/CF/0411/2018

05.06.2018

Consumer

Power to allow amendment of complaint/suit is wide, mere delay is not a ground for rejecting the amendment

Present appeal has been filed by the Appellant/complainant challenging the impugned order passed by Maharashtra State Consumer Disputes Redressal Commission, whereby the application for amendment of the complaint filed by the Appellant was rejected on the ground of delay. The Complainant has filed a complaint before the State Commission, for the alleged medical negligence during surgery performed by Dr. Seema Shanbhag, Opposite Party (OP). After notice of the complaint, the OP-Dr. Shanbhag had filed her written statement and affidavit of evidence. OP stated that, she was assisting surgeon, and the laparoscopic hysterectomy surgery was performed by Dr. Ujjwal Mahajan, ('Dr. Mahajan') the laparoscopic surgeon. The OP had also filed an expert opinion from Dr. Mahajan, who had performed the laparoscopic hysterectomy.

The Appellant submitted that, at the time of filing of the complaint, the patient was not aware of the surgery performed by Dr. Mahajan. OP never had disclosed Dr. Mahajan's details to the complainant and did not mention his name and other details in the case paper. Therefore, at the time of filing the complaint, complainant had not added the name of Dr. Mahajan, as one of the opposite parties. Accordingly, the complainant filed application for amendment of the complaint to add Dr. Mahajan as a necessary party (Proposed OP-2) before the State Commission.

The counsel further submitted that, the consumer Forum is primarily meant to provide better protection in the interest of consumers and not to short circuit the matter or defeat the claim on technical grounds. Even the Forum has power under Order I Rule 10(4) of Code of Civil Procedure, 1908 (CPC) and Rule 14(1)(b) of Consumer Protection Act, 1986 to give direction to implead a person who is necessary party. The cause of action was continuous and it was not new. Therefore, there was no delay in filing the application for amendment. The counsel submitted that the appeal before Medical Council of India against OP is pending. In the interest of justice, amendment application may be allowed. Otherwise, the complainant will suffer irreparable loss.

Admittedly, the complaint was filed on 9th November, 2012, whereas an amendment application was filed on 12th January, 2016. There was delay of 3 years 2 months. As per the affidavit of Dr. Mahajan, on the day of operation, he personally met the patient in the hospital and informed her that, he will be performing the operation and he will be assisted by Dr. Shanbhag. However, it is pertinent to note that, nowhere in the indoor case papers, the OP mentioned surgeon's details. The receipt of payment revealed surgeon's operative charges as Rs. 25,000 but no name of the surgeon was mentioned. The discharge card also did not show any details about the consultants. Therefore, initially the complainant did not add name of Dr. Mahajan as opposite party to the proceedings.

Order 1 Rule 10 of CPC enables the Court to add any person as party at any stage of the proceedings, if the person whose presence before the Court is necessary in order to enable the Court effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision. Merely because the, Plaintiff does not choose to implead a person is not sufficient for rejection of an application for being impleaded. The provisions of Order 1 Rule 10(2) CPC, are very wide and the powers of the Court are equally extensive. Even without an application to be impleaded as a party, the Court may, at any stage of the proceedings order that the name of any party, who out to have been joined whether as Plaintiff or Defendant or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

Addition of the new proposed OP-2 Dr. Mahajan is absolutely necessary to adjudicate effectively and completely the matter in controversy between the parties. The amendment application filed by complainant was after 3 years, of filing of the complaint. The instant case is of alleged medical negligence. Under Order 1 Rule 10(2) of CPC, the power to allow the amendment of complaint/suit is wide. The consumer fora should not adopt hyper technical approach while considering amendment application to avoid multiplicity of litigations. It should be borne in mind that, mere delay is not a ground for rejecting the amendment. The order passed by the State Commission is set aside. The appeal is allowed.

Tags : Impleadment Amendment Rejection Validity

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High Court of Jammu and Kashmir

Siemens Ltd. and Ors. Vs. SKIMS

MANU/JK/0419/2018

04.06.2018

Arbitration

Averments set up by applicants are expected to be specifically denied by replying party, if there is no specific denial, then such an averment is deemed to have been admitted by the otherside

The Applicants have filed instant applications before present Court for the appointment of a sole Arbitrator under Section 11(6) of the J & K Arbitration and Conciliation Act, 1997/Act, pursuant to the 'Arbitration Clause' between the parties contained in the 'Contract Agreement'-Supply Order No. SIMS 324 13 2006 (Eq)-1690-94 dated 20th of July, 2006, issued by the Respondent to the applicants for the supply/installation/testing/commissioning and handing over of a High Frequency Digital X-Ray with Image Intensifier (the X-Ray Machine). It is submitted that, the three disputes contain similar facts and, therefore, same may be consolidated and adjudicated by the same Arbitrator.

The Respondent-SKIMS, despite availing umpteen opportunities, have failed to file the objections, meaning thereby, that they have not joined any issue with the applicants. It is a settled principle of the law of pleadings that the averments set up by the applicants are expected to be specifically denied by the replying party. If there is no specific denial, then such an averment is deemed to have been admitted by the other side. In the present case, it is evident that, the averments set up in the applications, which were relevant and material to the case, have not been rebutted by the Respondent-SKIMS. It was expected of the Respondent-SKIMS to reply all the averments specifically and make a proper reference to the records relevant to the case. Since, the Respondent-SKIMS have omitted to do so and have failed to specifically deny the averments made by the applicants, therefore, the Applicants have been able to make out a case for interference.

From a bare perusal of Section 11, it is manifest that, in terms of Sub-Section (2), parties are free to agree on the procedure for the appointment of an Arbitrator. If only there is any failure of that procedure, the aggrieved party can invoke sub-sections (4), (5) or (6) of Section 11, as the case may be. In the case on hand, in terms of sub-section (2) of Section 11, procedure for appointment of an Arbitrator stands agreed upon by the parties in clause 26 of the 'Contract Agreement'. The parties have agreed that, in the event of disputes arising out of the 'Contract Agreement', then, in such eventuality, the same shall be referred to the award of two Arbitrators, one each to be nominated by either of the parties. It is the specific case of the Applicants that, they issued notice to the Respondent-SKIMS for demanding the appointment of the Arbitrator, but, despite that, the Arbitrator has not been appointed and, therefore, they are entitled to invoke Sub-Section (6) of Section 11 of the Act.

It is a settled principle of law that jurisdiction of Court under Section 11 of the Act is limited and confine to examine as to whether there is an 'Arbitration Agreement' between the contracting parties and, if so, whether any dispute has arisen between them out of such agreement which may call for appointment of Arbitrator to decide such dispute(s). In the present case, the Applicants, in all the three applications, have raised a dispute, which has gone un-rebutted on part of the Respondent-SKIMS. Before availing the remedy of Section 11 of the Act, the applicants, by way of repeated requests before the concerned authorities, made all the efforts that they could have in order to redress their grievances, but all their efforts went in vain. Thereafter, the applicants invoked the 'Arbitration Clause' contained in Clause 26 of the 'Contract Agreement' by way of the notice dated 7th of August, 2015, which, too, did not find any favour with the Respondent-SKIMS and they did not appoint an Arbitrator on their own behalf.

Once it is found that a dispute has arisen between the parties in relation to an agreement which contained an 'Arbitration Clause' for resolving such disputes, then, in such eventuality, reference to the Arbitrator has to be made leaving the parties to approach the Arbitrator with their claim and counterclaim so as to enable the Arbitrator to decide all such disputes on the basis of case set up by the parties before him. Applications filed under Section 11 of the Act are allowed and Justice Hasnain Masoodi, a former judge of this Court, is appointed as the sole Arbitrator to decide the dispute(s), which has/have arisen between the parties in relation to the agreement in question.

Tags : Dispute Settlement Arbitrator Appointment

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