Central Information Commission
Mr.Sachhin Sapra vs Mcd, Gnct Delhi on 17 June, 2011
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26161796
Decision No. CIC/SG/A/2011/000423/12079Penalty
Appeal No. CIC/SG/A/2011/000423
Relevant Facts emerging from the Appeal:
Appellant : Mr. Sachin Sapra
F-18, Back Lane,
Rajouri Garden,
Delhi- 110027
Respondent : Mr. Sanjay Yadav
EE-B(HQ) & Deemed PIO
Municipal Corporation of Delhi
O/o Suptdg. Engineer(Bldg.) HQ,
8th Floor, Dr. SPM Civic Center,
Minto Road, New Delhi
RTI application filed on : 19/10/2010
PIO replied : 18/11/2010; 24/11/2010
First appeal filed on : 30/11/2010
FAA's order : 12/01/2011
Second Appeal received on : 10/02/2011
Facts of the issue:
Information regarding the following was sought by the applicant:
1) What demolition action has been taken by the MCD against the unauthorized property no. C-1, D-10 and C-10 Rajouri Garden?
2) MCD's Demolition action on the properties is based on which of the following plan/document:-
a) Original sanctioned Building plan of the property or
b) Regularized Building plan of the property,
3) Point out/enumerate for which property are the basis/yardsticks for taking action?
4) For properties, which have no plans on what basis/yardsticks MCD is taking action/intends to take action?
5) Provide date of sealing orders of property no. A-2/39, also provide the file no, sealing order, points sealed?
6) provide the building plan on the basis of which owners of property no.A-2/39 are carrying out fresh construction?
Is MCD aware of it if yes then what action is taken on such construction? Also provide the information about whether the fresh construction can be allowed in the building u/s 345-A which is already sealed?
7) Property No. H-2
a) provide the copy of deviation booking file of above property. Whether deviation booking was done at the ongoing stage?
b) provide the detail of sealing demolition action taken by the MCD against the same property?
c) provide the copy of the undertaking if any filed by owner of the said property to carry out self -demolition?
Page 1 of 6d) provide the location of the set backs in the property with their length from plot boundaries?
e) whether non-compoundable deviations still exist in the building at Plot No. H 2. provide the details of the same.
8) are restaurants and tyre repair shop allowed on mixed land use streets under MPD-2021? If yes, point out the MPD-2021 clause. If no, then why 2 restaurants at property no.'s A- 2/132(Deez biryani) and J-12/38(Pizza hut) and 2 wheel alignment/balancing shops at J-19(BJS TYRE SPECIALIST) and J-9/18C(KIRAT CAR) are operating.
What steps MCD has taken for the closure of such shops?
9) provide the sanctioned building plan for the following properties on whose basis the construction is going on:-
a) H-2 Rajouri Garden
b) F-13 Rajouri Garden
c) C-7 Rajouri Garden
d) C-4 Rajouri Garden PIO's reply:
` 500 fees to be paid for copies of plans.
And information provided pointwise on 24/11/2010 The appellant sent Rs.560/- to SE(B)HQ on 30/11/2010 which was delivered through speed post on 01/12/2010.
First Appeal:
Reply was unsatisfactory.
FAA order:
The case was taken up on 5.1.11. The appellant was present. The PIO, SE-I/WZ was present. The appellant informed that he has received the reply but he is not satisfied with the reply of some points, given by the PIO. The same were discussed during the hearing. The PIO, SE-I is directed to send the revised reply in respect of point No. 2, 3, 4, 6, 7(e) and 8 to the appellant within 15 days' time.
PIO gave information on 27/1/2011 Ground of the Second Appeal:
1. Reply to point 9 not received from SE-B HQ not received even after depositing requisite p/copy fee.
2. Reply received on 27/01/2011 from SE-l MCD WZ is deficient in following 3 ways: -
a) Reply to point 3 is incomplete because property wise yardstick was to be disclosed.
b) Complete details of existing non-compoundable deviations in property no. H 2 not provided.
c) Reply to point 8 not provided & copy of letter written to town planning dept. not provided.
Submission from the PIO:
The appellant was not satisfied with the first PIO reply as he was not provided with the complete information. Therefore, the PIO, SE-I was directed to send the revised reply in respect of point no. 2,3,4,6,7(e) and 8 to the appellant with in 15 days time.
Relevant Facts emerging during the hearing held on 21/04/2011:
The following were present Appellant : Absent;
Respondent : Mr. Kamleshwar Dayal, AE (HQ)on behalf of Mr. R. K. Sharma, PIO & SE(B) HQ;
"The Respondent states that though the money for the plan has been paid by the Appellant on 01/12/2010 MCD was not able to trace the payment. When MCD managed to trace the payment it has sent three drawing out of four on 31/03/2011. The Respondent states that the fourth Page 2 of 6 drawing has not been sent so far since MCD is spending a lot of time and money in trying to locate it. He states that the fourth drawing will be sent to the Appellant before 30 April 2011.
The Appellant has pointed out following deficiencies in the information provided to him. The PIO is directed to provide the information after taking assistance from the appropriate officers before 10 May 2011:
a) Reply to point 3 is incomplete because property wise yardstick was to be disclosed.
b) Complete details of existing non-compoundable deviations in property no. H 2 not provided.
c) Reply to point 8 not provided & copy of letter written to town planning deptt not provided."
Decision dated 21/04/2011:
The Appeal was allowed.
"The Commission directs Mr. Kamleshwar Dayal to provide the information as directed above to the Appellant before 10 May 2011.
The Commission also directs Mr. Kamleshwar Dayal to ensure that a refund cheque of Rs.560/- for the fee wrongly taken from the Appellant is sent to him before 15 June 2011.
The issue before the Commission is of not supplying the complete, required information by the Mr. R. K. Sharma, PIO & SE(B) HQ within 30 days as required by the law. .
From the facts before the Commission it appears that the PIO is guilty of not furnishing information within the time specified under sub-section (1) of Section 7 by not replying within 30 days, as per the requirement of the RTI Act. He has further refused to obey the orders of his superior officer, which raises a reasonable doubt that the denial of information may also be malafide. The First Appellate Authority has clearly ordered the information to be given.
It appears that the PIO's actions attract the penal provisions of Section 20 (1). A showcause notice is being issued to him, and he is directed give his reasons to the Commission to show cause why penalty should not be levied on him.
Mr. R. K. Sharma, PIO & SE(B) HQ will present himself before the Commission at the above address on 23 May 2011 at 11.00am alongwith his written submissions showing cause why penalty should not be imposed on him as mandated under Section 20 (1). He will also submit proof of having given the information to the appellant."
Relevant facts emerging during the showcause hearing on 23/05/2011:
Appellant: Mr. Sachin Sapra;
Respondent: Mr. R.K. Sharma, PIO & SE(B)(HQ); Mr. Kamleshwar Dayal, Deemed PIO & AE (HQ); and Mr. Vipin Kumar, EE(B-I) West Zone;
"The Appellant is satisfied with the information provided to him after the Commission's order dated 21/04/2011, however he is now stating that that the three drawings provided to him vide letter dated 31/03/2011 are older ones.
With regards to the Commission's direction for refund of Rs. 560/- to the Appellant, the PIO & SE(B)(HQ) Mr. R.K. Sharma has submitted that he still not received the said IPO of Rs. 560/- deposited by the Appellant. However the Appellant has submitted a proof of delivery of the said IPO to Delhi GPO through speed post on 01/12/2010.Page 3 of 6
The plans which the Appellant had sought were the plans based on which he had stated construction is ongoing. The Respondent admits that the validity of the building plan is five years. However, in three cases the sanctioned building plans that were provided were sanctioned in 1973, 1999 and 2001. The Appellant states that he has now been provided with one building plan of plot no. C-4 sanctioned recently. This appears to be a completely irresponsible action of consciously providing incorrect information. The PIO states that the person responsible for this was the Executive Engineer Mr. Sanjay Yadav, whose assistance he had taken. The appellant has shown the Commission that he had written a letter to the EE(B-HQ) on 18/04/2011 pointing out that completely wrong information had been provided to him. The PIO claims that he was not aware of it but Mr. Kamleshwar Dayal AE(B-HQ) who is present admits that the letter was received. Despite this no action has been taken and MCD Engineers appears to be wanting the Information Commission to prompt them on everything.
The Commission therefore issues a showcause notice to Mr. Sanjay Yadav, EE to appear alongwith the PIO Mr. R. K. Sharma before the Commission on 17 June 2011 at 04.00PM.
Mr. R. K. Sharma, PIO (HQ) states that when a plan is sanctioned a copy is sent to the zone which is supposed to ensure that the construction is done as per the approved plan. Hence he states that the building plan would also be available at the Zone which had received the RTI application.
Mr. Vipin Kumar, EE(B-I) West Zone states that the sanctioned building plans were not with him which implies that Head Quarters may not have sent the building plans to him. Mr. R. K. Sharma is directed to send attested copies of letters by which the building plans were sent to the Zone. These will be sent to the appellant and the Commission before 30 May 2011."
Adjunct Decision dated 23 May 2011:
"The Commission directs Mr. Sanjay Yadav, EE(HQ) and Mr. R. K. Sharma PIO/SE(HQ) to appear before the Commission on 17 June 2011 at 04.00PM to showcause why penalty under Section 20(1) should not be levied on them.
Mr. R. K. Sharma is directed to send attested copies of letters by which the building plans were sent to the Zone. These will be sent to the appellant and the Commission before 30 May 2011."
Relevant facts emerging during the showcause hearing on 17/06/2011:
Appellant: Mr. Sachin Sapra;
Respondent: Mr. Sanjay Yadav, EE-B(HQ) & Deemed PIO, Mr. R.K. Sharma, PIO & SE(B)(HQ); Mr. Kamleshwar Dayal, AE-B(HQ);
The Appellant at query-9 had sought copies of plans based on which construction was going on in four properties. The first 08 queries of the Appellant were to be answered by PIO/SE-I West Zone. As far as query-9 was concerned the plans were with Building Head Quarters and the PIO had demanded an additional fee of Rs.560/- to give the four plans based on which the construction was being carried out. The respondent states that the copies of the plans are also with the respective zones and they should also be willing to give the plans. Effectively the deemed PIO is stating that various officers in MCD are unwilling to part with authorized building plans for reasons which can be surmised.
The RTI application was made on 19/10/2010 and the demand for additional fee was sent on 15/11/2010. The appellant paid the additional fee of Rs.560/- on 30/11/2010 and the plans three plans were given to him on 31/03/2011. The PIO admits that he is aware that construction of a building has to be done within five years of sanctioning of a plan. The appellant was given three plans which had been sanctioned in 1999, 2001 and 1973 and the plan for one property was not provided. It clearly appears that there was a conscious to delay the information and after ensuring that some delay had occurred wrong information was provided. The Appellant had filed the second appeal before the Commission 10/02/2011 since by then he had not received any plan Page 4 of 6 despite making the payment. Three plans which were not sought by him were provided to him after filing the second appeal. Only after the order of the Commission the four plans based on which the construction was ongoing were provided to the Appellant. One plan was given to him on 28/04/2011 and other three were given to him on 26/05/2011. From the facts of the case it appears clear that there was a conscious effort to delay providing the information to the Appellant. Section 20 (1) of the RTI Act states, "Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty five thousand rupees;
Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him:
Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be." A plain reading of Section 20 reveals that there are three circumstances where the Commission must impose penalty:
1) Refusal to receive an application for information. 2) Not furnishing information within the time specified under sub-section (1) of section 7 - 30 days. 3) Malafidely denying the request for information or knowingly giving incorrect, incomplete
or misleading information or destroying information which was the subject of the request
4) Obstructing in any manner in furnishing the information.
All the above are prefaced by the infraction, ' without reasonable cause'.
Section 19 (5) of the RTI Act has also stated that "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."
Thus if without reasonable cause, information is not furnished within the time specified under sub-section (1) of section 7, the Commission is dutybound to levy a penalty at the rate of rupees two hundred and fifty each day till the information is furnished. Once the Commission decides that there was no reasonable cause for delay, it has to impose the penalty at the rate specified in Section 20 (1) of the RTI Act and the law gives no discretion in the matter. The burden of proving that denial of information by the PIO was justified and reasonable is clearly on the PIO as per Section 19(5) of the RTI Act.
The correct plans should have been given to the appellant in December 2010 instead they were given to him in April-May 2011 as described earlier. There can be no reasonable cause for this. Since the delay in providing the information has been far over 100 days the Commission is imposing the maximum penalty of `25000/- under Section 20(1) of the RTI Act on Mr. Sanjay Yadav, EE-B(HQ) & Deemed PIO.
Page 5 of 6Decision:
As per the provisions of Section 20 (1) of the RTI Act 2005, the Commission finds this a fit case for levying penalty on Mr. Sanjay Yadav, EE- B(HQ) & Deemed PIO. Since the delay in providing the correct information has been over 100 days, the Commission is passing an order penalizing Mr. Sanjay Yadav `25000/ which is the maximum penalty under the Act.
The Commissioner, Municipal Corporation of Delhi is directed to recover the amount of `25000/- from the salary of Mr. Sanjay Yadav and remit the same by a demand draft or a Banker's Cheque in the name of the Pay & Accounts Officer, CAT, payable at New Delhi and send the same to Shri Pankaj K.P. Shreyaskar, Joint Registrar and Deputy Secretary of the Central Information Commission, 2nd Floor, August Kranti Bhawan, New Delhi - 110066. The amount may be deducted at the rate of `5000/ per month every month from the salary of Mr. Sanjay Yadav and remitted by the 10th of every month starting from July 2011. The total amount of `25000 /- will be remitted by 10th of November, 2011.
This decision is announced in open chamber.
Notice of this decision be given free of cost to the parties. Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act.
Shailesh Gandhi Information Commissioner 17 June 2011 (In any correspondence on this decision, mention the complete decision number.) (RJ) 1- Commissioner Municipal Corporation of Delhi Town Hall, Delhi- 110006
2. Shri Pankaj K.P. Shreyaskar, Joint Registrar and Deputy Secretary Central Information Commission, 2nd Floor, August Kranti Bhawan, New Delhi - 110066 3- Mr. R. K. Sharma PIO & SE(B) HQ Municipal Corporation of Delhi O/o Suptdg. Engineer(Bldg.) HQ, 8th Floor, Dr. SPM Civic Center, Minto Road, New Delhi Page 6 of 6