Central Information Commission
Sattar Ali vs Nuclear Power Corporation Of India on 24 February, 2020
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.:- CIC/NPCOI/A/2018/149751-BJ
Mr. Sattar Ali
....अपीलकता/Appellant
VERSUS
बनाम
CPIO & Dy. General Manager (Law)
Nuclear Power Corporation of India Ltd.
1st Floor, West Wing, Vijay Bhawan
R R Site, P. O. Anushakti, Via Kota
Rajasthan - 323303
... ितवादीगण /Respondent
Date of Hearing : 20.02.2020
Date of Decision : 24.02.2020
Date of RTI application 09.02.2018
CPIO's response 05.03.2018
Date of the First Appeal 16.03.2018
First Appellate Authority's response 09.05.2018
Date of diarised receipt of Appeal by the Commission 08.08.2018
ORDER
FACTS:
The Appellant vide his RTI application sought information regarding the rules as per which approximately 300-500 trees were cut to develop the land for Phase 2, Type 4 Residential Colony.
The CPIO, vide its letter dated 05.03.2018 stated that the information sought related to a third party and hence could not be provided u/s 11 of the RTI Act, 2005. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its order dated 09.05.2018 provided certain clarification to the Appellant.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Sattar Ali through VC;
Respondent: Mr. Neeraj Agarwal, Addl. Chief Engineer and Mr. M. L. Meena, Sr. Manager through VC;Page 1 of 6
The Appellant reiterated the contents of the RTI application and stated that the information sought was incorrectly denied by the CPIO claiming exemption u/s 11 of the RTI Act, 2005 despite the matter pertaining to the larger public interest of cutting of trees for development of a residential colony. Thus, he submitted that the details regarding the officials granting approval for cutting of the trees ought to have been disclosed by the Respondent. In its reply, the Respondent stated that approximately 66 trees were cut by the contractor as per the regulations after seeking the permission from the Local Administrative Authorities. Moreover, since the information sought pertained to a different department it was denied from disclosure under Section 11 of the RTI Act, 2005 by the CPIO and that the copy of the approval granted for cutting the trees could be obtained from the concerned Department. On being queried by the Commission regarding the information being in the larger public interest and the disclosure of the necessary documents allowing the cutting of trees and the measures taken for reafforestation, no satisfactory response was offered by the Respondent.
Having heard both the parties and on perusal of the available records, the Commission at the outset observed that the CPIO/ FAA did not provide a satisfactory response to the Appellant. The provisions of the RTI Act, 2005 and various judgements on the subject matter clearly establishes that it is the duty of the CPIO to provide clear, cogent and precise response to the information seekers. Section 7 (8) (i) of the RTI Act, 2005 also states that where a request for disclosure of information is rejected, the CPIO shall communicate the reasons for such rejection. The Hon'ble Delhi High Court in the matter of J P Aggarwal v. Union of India (WP (C) no. 7232/2009 clearly stated that the PIO acts as the Pivot for enforcing the implementation of the Act. The relevant extracts of the decision are as under:
" 7"it is the PIO to whom the application is submitted and it is who is responsible for ensuring that the information as sought is provided to the applicant within the statutory requirements of the Act. Section 5(4) is simply to strengthen the authority of the PIO within the department; if the PIO finds a default by those from whom he has sought information. The PIO is expected to recommend a remedial action to be taken". The RTI Act makes the PIO the pivot for enforcing the implementation of the Act."
8.............The PIO is expected to apply his / her mind, duly analyse the material before him / her and then either disclose the information sought or give grounds for non-
disclosure."
The Commission also observed that as per the provisions of Section 19 (5) of the RTI Act, 2005, in an Appeal proceeding, the onus to prove that a denial of a request was justified shall be on the CPIO. Neither the Respondent present during the hearing nor the CPIO responding to the RTI application, could justify their position as to how the disclosure of information would be in contravention to any of the provisions enshrined under Section 8 of the RTI Act, 2005 While observing that in order to deny information under any of the exemption mentioned under Section 8 (1) of the RTI Act, 2005, the Respondent is required to provide justification or establish the reason why such exemption was claimed, the Commission referred to the decision of the Hon'ble High Court of Delhi in the matter of Dy. Commissioner of Police v. D.K. Sharma, WP (C) No. 12428 of 2009 dated 15.12.2010, wherein it was held as under:
"6. This Court is inclined to concur with the view expressed by the CIC that in order to deny the information under the RTI Act the authority concerned would have to show a justification with reference to one of the specific clauses under Section 8 (1) of the RTI Act. In the instant case, the Petitioner has been unable to discharge that burden. The mere fact that a criminal Page 2 of 6 case is pending may not by itself be sufficient unless there is a specific power to deny disclosure of the information concerning such case."
Furthermore, the Hon'ble Delhi High Court in the case of Shri Vivek Mittal v. B.P. Srivastava, W.P.(C) 19122/2006 dated 24.08.2009 had upheld the view of the CIC and observed that ".....The Act as framed, castes obligation upon the CPIOs and fixes responsibility in case there is failure or delay in supply of information. It is the duty of the CPIOs to ensure that the provisions of the Act are fully complied with and in case of default, necessary consequences follow".
Furthermore, the Hon'ble High Court of Delhi in the matter of R.K. Jain vs Union of India, LPA No. 369/2018, dated 29.08.2018, held as under:
"9................................ That apart, the CPIO being custodian of the information or the documents sought for, is primarily responsible under the scheme of the RTI Act to supply the information and in case of default or dereliction on his part, the penal action is to be invoked against him only."
The Commission also noted that it should be the endeavour of the CPIO to ensure that maximum assistance should be provided to the RTI applicants to ensure the flow of information. In this context, the Commission referred to the OM No.4/9/2008-IR dated 24.06.2008 issued by the DoP&T on the Subject "Courteous behavior with the persons seeking information under the RTI Act, 2005" wherein it was stated as under:
"The undersigned is directed to say that the responsibility of a public authority and its public information officers (PIO) is not confined to furnish information but also to provide necessary help to the information seeker, wherever necessary."
Furthermore, in OM No. 20/10/23/2007-IR dated 09.07.2009, issued by the M/o Personnel, Public Grievances and Pensions, D/o Personnel and Training, while elaborating on the duties and responsibilities of the FAA, it was stated that:
"3. Deciding appeals under the RTI Act is a quasi judicial function. It is, therefore, necessary that the appellate authority should see that the justice is not only done but it should also appear to have been done. In order to do so, the order passed by the appellate authority should be a speaking order giving justification for the decision arrived at.
5..............................The Act provides that the first appellate authority would be an officer senior in rank to the CPIO. Thus, the appellate authority, as per provisions of the Act, would be an officer in a commanding position vis a vis' the CPIO. Nevertheless, if, in any case, the CPIO does not implement the order passed by the appellate authority and the appellate authority feels that intervention of higher authority is required to get his order implemented, he should bring the matter to the notice of the officer in the public authority competent to take against the CPIO. Such competent officer shall take necessary action so as to ensure implementation of the RTI Act. "Page 3 of 6
In the present instance the transfer of RTI application u/s 6 (3) of the Act had not been made. Even assuming that the application was transferred, it cannot be said that the transferring authority can be completely absolved of his duties and responsibilities as CPIO thereafter. In this context, a reference can be made to the decision of the Hon'ble Delhi High Court in J P Aggarwal v. Union of India (WP (C) no. 7232/2009 wherein it was held that:
" 7"it is the PIO to whom the application is submitted and it is who is responsible for ensuring that the information as sought is provided to the applicant within the statutory requirements of the Act. Section 5(4) is simply to strengthen the authority of the PIO within the department; if the PIO finds a default by those from whom he has sought information. The PIO is expected to recommend a remedial action to be taken". The RTI Act makes the PIO the pivot for enforcing the implementation of the Act."
8.............The PIO is expected to apply his / her mind, duly analyse the material before him / her and then either disclose the information sought or give grounds for non-disclosure."
Furthermore, in Ministry Of Railways Through ... vs Girish Mittal on 12 September, 2014 W.P.(C) 6088/2014 & CM Nos.14799/2014, 14800/2014 & 14801/2014, the Hon'ble High Court of Delhi held as under:
"15. The plain language of Section 6(3) of the Act indicates that the public authority would transfer the application or such part of it to another public authority where the information sought is more closely connected with the functions of the other authority. The reliance placed by the learned counsel for the petitioner on the provisions of Section 6(3) of the Act is clearly misplaced in the facts and circumstances of the case. This is not a case where penalty has been imposed with respect to queries which have been referred to another public authority, but with respect to queries that were to be addressed by the public authority of which petitioner no. 2 is a Public Information Officer. Section 6(3) of the Act cannot be read to mean that the responsibility of a CPIO is only limited to forwarding the applications to different departments/offices. Forwarding an application by a public authority to another public authority is not the same as a Public Information Officer of a public authority arranging or sourcing information from within its own organisation. In the present case, undisputedly, certain information which was not provided to respondent would be available with the Railway Board and the CPIO was required to furnish the same. He cannot escape his responsibility to provide the information by simply stating that the queries were forwarded to other officials."
A reference can also be made to a recent decision of the High Court of Delhi in the matter of Shikha Bagga Vs. Public Information Officer, Directorate of Education and Another's, in W. P. (C) 4172/2017 dated 13.07.2017 wherein it was held as under:
"4. Clearly, transferring the petitioner's application to various schools is unsustainable. The PIO is required to provide all such information as sought for, subject to the exceptions as provided under the Act
5. In the circumstances, the writ petition is allowed and the impugned letters/orders dated 18.04.2017 and 22.04.2017 transferring the petitioner's application to various officers and Page 4 of 6 various schools are set aside. It is directed that the petitioner's application be considered by respondent no.1 in accordance with law.
The Commission observed that a voluntary disclosure of all information that ought to be displayed in the public domain should be the rule and members of public who having to seek information should be an exception. An open government, which is the cherished objective of the RTI Act, can be realised only if all public offices comply with proactive disclosure norms. Section 4(2) of the RTI Act mandates every public authority to provide as much information suo- motu to the public at regular intervals through various means of communications, including the Internet, so that the public need not resort to the use of RTI Act.
The Hon'ble Supreme Court of India in the matter of CBSE and Anr. Vs. Aditya Bandopadhyay and Ors 2011 (8) SCC 497 held as under:
"37. The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under Clause (b) of Section 4(1) of the Act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption."
The Commission also observes the Hon'ble Delhi High Court ruling in WP (C) 12714/2009 Delhi Development Authority v. Central Information Commission and Another (delivered on:
21.05.2010), wherein it was held as under:
"16.It also provides that the information should be easily accessible and to the extent possible should be in electronic format with the Central Public Information Officer or the State Public Information Officer, as the case may be. The word disseminate has also been defined in the explanation to mean - making the information known or communicating the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet, etc. It is, therefore, clear from a plain reading of Section 4 of the RTI Act that the information, which a public authority is obliged to publish under the said section should be made available to the public and specifically through the internet. There is no denying that the petitioner is duty bound by virtue of the provisions of Section 4 of the RTI Act to publish the information indicated in Section 4(1)(b) and 4(1)(c) on its website so that the public have minimum resort to the use of the RTI Act to obtain the information."
Furthermore, High Court of Delhi in the decision of General Manager Finance Air India Ltd & Anr v. Virender Singh, LPA No. 205/2012, Decided On: 16.07.2012 had held as under:
"8. The RTI Act, as per its preamble was enacted to enable the citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. An informed citizenry and transparency of information have been spelled out as vital to democracy and to contain corruption and to hold Governments and their instrumentalities accountable to the governed. The said legislation is undoubtedly one of the most significant enactments of independent India and a landmark in governance. The spirit of the legislation is further evident from various provisions thereof which require public authorities to:
A. Publish inter alia:Page 5 of 6
i) the procedure followed in the decision making process;
ii) the norms for the discharge of its functions;
iii) rules, regulations, instructions manuals and records used by its employees in discharging of its functions;
iv) the manner and execution of subsidy programmes including the amounts allocated and the details of beneficiaries of such programmes;
v) the particulars of recipients of concessions, permits or authorizations granted. [see Section 4(1) (b), (iii), (iv), (v); (xii) & (xiii)].
B. Suo moto provide to the public at regular intervals as much information as possible [see Section 4(2)]."
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission instructs the Respondent to re-examine the RTI application and provide point-wise response to the Appellant in accordance with the provisions of the RTI Act, 2005 and also suo moto disclose the same on its website within a period of 15 days from the date of receipt of this order.
The Commission also instructs the Respondent Public Authority to convene periodic conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities.
The Appeal stands disposed accordingly.
(Bimal Julka) (िबमल जु का)
(Information Commissioner) (सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
(K.L. Das) (के .एल.दास)
(Dy. Registrar) (उप-पंजीयक)
011-26182598/ [email protected]
दनांक / Date: 24.02.2020
Copy to:-
1. Chairman and Managing Director, Nuclear Power Corporation of India Ltd., Nabhikiya Urja Bhavan, Anushaktinagar, Mumbai - 400 094, India.Page 6 of 6