Central Information Commission
Kushal Saha vs National Building Construction ... on 13 September, 2019
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/NBCCL/A/2018/615446-BJ
Mr. Kushal Saha
....अपीलकता/Appellant
VERSUS
बनाम
1. CPIO & Executive Director, SBG (East)
NBCC (India) Ltd., Vibgyor Tower
Action Area - I, CE - II, New Town, Rajarhat
Kolkata - 700156
2. CPIO
Chief General Manager (CE)/CPIO (RTI)
NBCC (India) Ltd., NBCC Bhawan
Lodhi Road, New Delhi - 110003
... ितवादीगण /Respondent
Date of Hearing : 12.09.2019
Date of Decision : 13.09.2019
Date of RTI application 07.12.2017
CPIO's response 15.01.2018
Date of the First Appeal 02.02.2018
First Appellate Authority's response Not on Record
Date of diarised receipt of Appeal by the Commission Nil
ORDER
FACTS:
The Appellant vide his RTI application sought information on 6 points in respect of NBCC, VIBGYOR TOWERS, CR Block, Action Area-I, New Town, regarding the list with details of allottees (name, flat numbers and allotment date) who had been allotted covered parking space at NBCC Vibgyor Towers as on 30.06.2006 and 25.02.2010; the total number of covered parking space allotted and the vacant, if any, as on date and other issues related thereto. The CPIO, vide its letter dated 15.01.2018, informed the Appellant that the RTI application was forwarded for seeking suitable reply/ information from the concerned deemed PIO under the provisions of Section 5(4) & 5(5) of the RTI Act, 2005. However, the requisite information was still awaited. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The order of the FAA, if any, is not on the record of the Commission.Page 1 of 7
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Kushal Saha through VC;
Respondent: Mr. Rakesh Garg, CGM (Engg.)/ CPIO, Ms. Reshma , CGM (Engg.) and Mr. Pramod Kumar, AGM (Engg.);
The Appellant reiterated the contents of the RTI application and stated that the information sought had not been received by him, till date. He further submitted that the list of allottees of covered parking spaces, procedure followed in allotment of covered parking spaces and deviation, if any, was not provided to him. In its reply, the Respondent, NBCC, New Delhi, submitted that after receipt of an RTI application, an Interim reply dated 15.01.2018 was provided to the Appellant which was acknowledged by him. The Respondent further submitted that the First Appeal of the Appellant was received by them through an e-mail but the same was misplaced and therefore, the First Appeal was not answered. The Respondent, New Delhi, further submitted that the CPIO, NBCC, Kolkata had to provide the information within the stipulated time frame and that notice of hearing was also addressed to them. Despite prior intimation, the Respondent remained absent during the hearing hence the Commission was unable to ascertain the reason for the delay in responding to the RTI application. While contesting the above averments of the Respondent, the Appellant vehemently submitted that he had not received any information, till date, neither from the CPIO nor from the FAA, which was in contravention to the provisions of the RTI Act, 2005. The Respondent while explaining the background of the matter informed that the Flats and Parking in the said Tower were sold on the basis of the open lottery amongst the Applicants. The Appellant contested the above averments of the Respondent and submitted that so far he had not received any such letters regarding the draw of lottery for covered/open parking. The Appellant further submitted that he desired all information relating to publication of draw of lottery/selection of open and covered parking/ announcement date etc. The Respondent further informed that all the original approvals have already been handed over to the Resident Welfare Association (NVTOA). At present no documents were available in the office of NBCC Office as the same were weeded out which was contested by the Appellant. A reference was also made to the letter dated 23rd November, 2009 written to the Appellant regarding the Allotment of Parking Space as also the letter dated 17th February, 2010 relating to Apartment No. F07.5-Parking Space, receipt of which was denied by the Appellant. The Respondent however agreed to forward the entire correspondences held with them to the Appellant once again. On being queried by the Commission whether the details relating to allotment of flats/ building plan/allottees details/procedure followed for allotment of covered parking/name and designation of the competent authority having power of deviating the Rules, the Respondent replied in the negative and agreed to put it in the public domain.
The Commission was in receipt of a written submission from the Respondent, NBCC, Kolkata, dated Nil, wherein point-wise information to the queries raised in the RTI application was provided.
The Commission felt that timely response is the essence of the RTI mechanism enacted to ensure transparency and accountability in the working of Public Authorities. In this context, the Commission referred to the decision of the Hon'ble Delhi High Court in Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April, 2009) wherein it had been held as under:Page 2 of 7
"14.......The court cannot be unmindful of the circumstances under which the Act was framed, and brought into force. It seeks to foster an "openness culture" among state agencies, and a wider section of "public authorities" whose actions have a significant or lasting impact on the people and their lives. Information seekers are to be furnished what they ask for, unless the Act prohibits disclosure; they are not to be driven away through sheer inaction or filibustering tactics of the public authorities or their officers.
It is to ensure these ends that time limits have been prescribed, in absolute terms, as well as penalty provisions. These are meant to ensure a culture of information disclosure so necessary for a robust and functioning democracy."
With regard to providing a clear and cogent response to the Appellant, the Commission referred 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."
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 a CPIO cannot escape his obligations and duties by stating that persons appointed under him had failed to collect documents and information. 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, in OM No. 20/10/23/2007-IR dated 09.07.2009, 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.
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:Page 3 of 7
"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 observed that a voluntary disclosure of all information such as the details relating to allotment of flats/ building plan/allottees detail/procedure followed for allotment of covered parking/name and designation of the competent authority having power of deviating the Rules 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 Page 4 of 7 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:
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)]."
Furthermore, in this context a reference was also made to the OM no. No.1/6/2011-IR dated 15.04.2013 issued by the DoP&T pertaining to guidelines for the implementation of suo motu disclosures under Section 4 of the RTI Act, 2005.
With regard to larger public interest involved in the matter, the Commission referred to the decision of the Hon'ble Supreme Court in the matter of Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi: (2012) 13 SCC 61 while explaining the term "Public Interest"
held:
"22. The expression "public interest" has to be understood in its true connotation so as to give complete meaning to the relevant provisions of the Act. The expression "public interest" must be viewed in its strict sense with all its exceptions so as to justify denial of a statutory exemption in terms of the Act. In its common parlance, the expression "public interest", like "public purpose", is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs (State of Bihar v. Kameshwar Singh([AIR 1952 SC 252]). It also means the general welfare of the public that warrants recognition and protection; something in which the public as a whole has a stake [Black's Law Dictionary (8th Edn.)]."
The Hon'ble Supreme Court in the matter of Ashok Kumar Pandey vs The State of West Bengal (decided on 18 November, 2003Writ Petition (crl.) 199 of 2003) had made reference to the following texts for defining the meaning of "public interest', which is stated as under:
"Strouds Judicial Dictionary, Volume 4 (IV Edition),'Public Interest' is defined thus:
"Public Interest (1) a matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in Page 5 of 7 which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected."
In Black's Law Dictionary (Sixth Edition), "public interest" is defined as follows :
Public Interest something in which the public, or some interest by which their legal rights or liabilities are affected. It does not mean anything the particular localities, which may be affected by the matters in question. Interest shared by national government...."
Every action of a Public Authority is expected to be carried out in Public Interest. The Hon'ble Supreme Court of India in the matter of Kumari Shrilekha Vidyarthi, etc vs. State of UP and Ors., 1990 SCR Supl. (1) 625 dated 20.09.1990 wherein it had been held as under:
"Private parties are concerned only with their personal interest whereas the State while exercising its powers and discharging its functions, acts indubitably, as is expected of it, for public good and in public interest. The impact of every State action is also on public interest."
Similarly, the Hon'ble Supreme Court of India in the matter of LIC of India vs. Consumer Education and Research Centre, AIR 1995 SC 1811 dated 10.05.1995 had held as under:
"Every action of the public authority or the person acting in public interest or its acts give rise to public element, should be guided by public interest. It is the exercise of the public power or action hedged with public element becomes open to challenge."
The Commission observed that there is complete negligence and laxity in the public authority in dealing with the RTI applications. It is abundantly clear that such matters are being ignored and set aside without application of mind which reflects disrespect towards the RTI Act, 2005 itself. The Commission expressed its displeasure on the casual and callous approach adopted by the respondent in responding to the RTI application. It was felt that the conduct of Respondent was against the spirit of the RTI Act, 2005 which was enacted to ensure greater transparency and effective access to the information.
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission directs the Respondent, New Delhi to furnish a set of entire correspondences held with them to the Appellant as per the provisions of the RTI Act, 2005, within a period of 15 days from the date of receipt of this order, as agreed. The Commission would also like to place on record its displeasure to the CPIO, Kolkata, over the casual manner in which the RTI application had been dealt with by the Respondent. The CPIO, Kolkata, is therefore, warned to be extremely careful and vigilant in handling RTI petitions in future, failing which the Commission would initiate penal action under Section 20(1) of the RTI Act, 2005. Moreover, it is appalling to note that the FAA had not acted in accordance with the provisions of the RTI Act, 2005 and therefore is advised to be alert and cautious in the implementation of the RTI Act, 2005 with due diligence and care. The Respondents, NBCC (India) Limited, New Delhi and Kolkata were also advised to endorse a copy of their written submissions sent to the Commission to the Appellant, as well.
The Commission also advises the Respondent Public Authority to examine the RTI application and suo motu place the details of allotment of flats/ building plan/allottees detail/procedure followed for allotment of covered parking/name and designation of the competent authority having powers of deviating the Rules in accordance with the provisions of Section 4 of the RTI Page 6 of 7 Act, 2005 on its website taking into consideration the larger public interest involved in the matter, within a period of 15 days from the date of receipt of this order, as agreed.
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 with the above direction.
(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: 13.09.2019
Copy to:
1. Shri Shiv Das Meena, Chairman and Managing Director, NBCC Bhawan, Lodhi Road, New Delhi- 110003
2. The Sr. Executive Director and First Appellate Authority, NBCC(India) Limited, NBCC Bhawan, Lodhi Road, New Delhi - 110003 Page 7 of 7