HC: No penalty if experienced lawyer says records destroyed by termites
14 May, 2020In a judgment today, the High Court has upheld the version of a Notary that the records were destroyed by termites and the penalty imposed by the CIC has been revoked. We present an analysis of the case and its repercussions.
Background of the case
- Sh. Nand Lal alleged that his immovable property was transferred by an advocate and the concerned document was attested and authenticated by the Ms Meena Sharma. Ms Meena Sharma is a practicing lawyer in Delhi for the last 28 years, who had also been performing the duties as a Notary Public for 18 years.
- Mr Nand Lal filed an application under the RTI Act with the Ministry of Law and Justice in 2015 seeking copies of annual returns for certain year filed by Ms Meena Sharma under the Notaries Act, 1952. The application was transferred to the Notary Ms Meena Sharma who refused to provide any information pertaining to the transaction claiming it to be a third party information. It was replied that the role of a Notary Public is of a confidential nature and the information in respect of notarization cannot be revealed to a third party.
- On searching, the petitioner found some of the records and documents were eaten by termites. Only the record for the year 2013 (half eaten by termites) could be cleaned and recovered. The petitioner lodged an FIR regarding the damage done to the records in PS Tilak Marg on 25.05.2015.
- The matter came up before the CIC. Vide order dated 11.4.2016, the CIC observed that the Notary has a legal duty to protect and preserve records/Registers. If records are eaten by termites, the Notary owes an explanation to the people why she failed to prevent it.
- It was noted by the CIC that this is a serious negligence, lethargy in complacence and preservation of the public records. It is also stated that the petitioner being a public authority could not show any system to protect the registers. It is also noted that neither the PIO nor the Notary showed any sign of regret or remorse about termite destruction.
- It was noted that the ground of “file missing” or “not traceable” or “eaten away by termites” is a ground which has no legal base and amounts to breach of the Public Records Act, 1993. The CIC concluded that the negligence is writ large and res ipsa loquitor applies and a penalty of Rs. 25,000/- was imposed on the petitioner. In addition, a compensation of Rs 1000/- was awarded to the Mr Nand Lal.
Submissions by the Notary Ms Meena Sharma
It was submitted that despite her best efforts, records for the years 2005-2007 are not available. She was asked to file a personal affidavit stating the non-traceability of the said records which she did.
Views of the High Court
- The contention that Notary collects huge money through attestation appears to be a misplaced conclusion. Most Notaries function under difficult conditions and the fees received cannot be termed to be “huge money”.
- The contention that Notary collects huge money through attestation appears to be a misplaced conclusion. Most Notaries function under difficult conditions and the fees received cannot be termed to be “huge money”.
- The record in question is of the year 2008 for which the RTI application was filed in 2015. Given the difficult conditions that Notaries work and given that no specific procedure was brought to the notice of the court prescribed for storing records, it is quite possible that termites may have damaged the relevant record. This explanation cannot be brushed aside as being a negligent act.
- The petitioner has clearly stated that the relevant record has been eaten by termites. This has been stated on affidavit. The petitioner is a practicing advocate with 23 years’ experience. I do not see any reason to disbelieve the statement made on oath.
- Except making bald allegation against the petitioner, Mr. Nand Lal has also not been able to show any fact which would lead to the conclusion that the version of the Ms Meena Sharma is wrong. The relevant records had been destroyed/bitten by termites. Hence, it cannot be said that Ms Meena Sharma is guilty under section 20 of the RTI Act of having either destroyed information or has malafidely denied the request for information. The penalty has been wrongly imposed.
- Regarding the direction imposing compensation of Rs.1000/- in view of the findings recorded above there are no grounds to direct payment of damage.
- Some sketchy submissions were made by learned counsel for the parties as to whether a Notary Public is a Public Authority. The Court has not gone into the said issue in view of the above conclusions.
Criticism of the judgment
1. The Hon’ble High Court seems to have erred in going into a question of fact whether a notary collects huge money through attestation or not. In addition, it is not relevant issue for examining the imposition of penalty under the RTI Act.
2. If the so called “difficult conditions” are accepted as a ground to waive the stipulation of storing the records, it is time to write the obituary of the RTI Act.
3. The observation that “given that no specific procedure was brought to the notice of the court prescribed for storing records” sets a dangerous precedent. The public authority has to prescribe the procedure for storage of the records and it is the Courts duty to check if there is any prescribed procedure. If there is none, the responsibility lies with the Public Authority for which the Court should hold the public authority liable.
4. This Judgment sets an example by virtue of which all PIO’s could now claim their years of experience as a yardstick to measure the truthfulness of their statement.
5. Section 19(5) In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request. of the RTI Act says that the onus of denial of information is on the PIO who has to justify that the denial is as per the provisions of the RTI Act. The observation of the Court that Mr Nand Lal has also not been able to show any fact which would lead to the conclusion that the version of the Ms Meena Sharma is wrong indicates, either a poor knowledge of the provisions of the RTI Act or their being overlooked.
6. Surprisingly, the Court has totally overlooked the role and conduct of the Ministry of Law and Justice in the whole case. The Notaries Act, 1952 and the Notaries Rules, 1956 put certain responsibilities on the Notary and also prescribe action in case of non fulfilment of the conditions.
7. Unlike the objective of the RTI Act which seeks to provide information to an applicant in 30 days, this is a case where an application was filed in 2015 and no information is provided even 5 years later. The Court has missed to examine “whether a Notary Public is a Public Authority” which may take another couple of years to be decided.
What should be done?
The Court should suo-motu review the judgment to prevent a miscarriage of justice.
Citation: Delhi High Court in W.P.(C) 5638/2016 and 1695/2018, Meena Sharma v. Nand Lal and Ministry of Law and Justice, Date of Decision: 14.05.2020
RTI Citation : RTIFI/2020/CIC/1493
Click here to view original RTI order of Court / Information Commission