Central Information Commission
Akshay Kumar Malhotra vs Delhi Development Authority on 6 January, 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. / िशकायत सं या / Complaint No.:-
CIC/DDATY/A/2018/150366-BJ+
CIC/DDATY/C/2018/150365-BJ+
CIC/DDATY/A/2018/150361-BJ
Mr. Akshay Kumar Malhotra
....अपीलकता/Appellant
.... िशकायतकता /Complainant
VERSUS
बनाम
1. CPIO
O/o the Chief Vigilance Officer
Unit Dy. CAO (Vig.)
Delhi Development Authority
B - 517, Vikas Sadan, INA
New Delhi - 110023
2. CPIO
Asst. Director (Coordn.), LD
Delhi Development Authority
Room No. 6, A - Block, Vikas Sadan, INA
New Delhi - 110023
3. CPIO
O/o the Commissioner, Land Disposal Dept.
Delhi Development Authority
Vikas Sadan, INA
New Delhi - 110023
... ितवादीगण /Respondent
Date of Hearing : 03.01.2020
Date of Decision : 06.01.2020
Page 1 of 8
ORDER
RTI - 1 & 2 File No. CIC/DDATY/A/2018/150366-BJ+ CIC/DDATY/C/2018/150365-BJ Date of RTI application 13.04.2018 CPIO's response Not on Record Date of the First Appeal 31.05.2018 First Appellate Authority's response Not on Record Date of diarised receipt of Appeal/Complaint by the Commission 13.08.2018 FACTS:
The Appellant/ Complainant vide his RTI application sought information on 06 points regarding his complaint dated 23.10.2016 on the subject "Corruption of more than Rs.10,000 Crores due to ill policies of DDA for getting the property freehold"; status of the Complaint; action taken by each official along with the dates of such action to whom the complaint was forwarded.
Dissatisfied due to non-receipt of any response from the CPIO, the Appellant/Complainant approached the FAA. The response of the CPIO/ FAA, if any, is not on the record of the Commission.
RTI 3 File No. CIC/DDATY/A/2018/150361-BJ Date of RTI application 13.04.2018 CPIO's response Not on Record Date of the First Appeal 31.05.2018 First Appellate Authority's response 25.06.2018 Date of diarised receipt of Appeal by the Commission 13.08.2018 FACTS:
The Appellant vide his RTI application sought information on 06 points regarding his complaint dated 23.10.2016 on the subject "Corruption of more than Rs.10,000 Crores due to ill policies of DDA for getting the property freehold"; status of the Complaint; action taken by each official along with the dates of such action to whom the complaint was forwarded.
Dissatisfied due to non-receipt of any response from the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 25.06.2018 offered inspection of vigilance records/file related to his complaint dated 23.10.2016 on any working Monday, Tuesday & Thursday between 2:30 pm to 5:30 pm and further stated that the documents required, if any, after inspection, would be provided by the PIO/AVO-12.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant/ Complainant: Mr. Akshay Kumar Malhotra;
Respondent: Mr. Kamal Singh, Dy. Dir. (Vig.), Mr. Surender Sharma, AD/ LAB and Mr. Ashoka, ASO / LAB;Page 2 of 8
The Appellant/ Complainant reiterated the contents of the RTI applications and stated that the information in respect of his complaint regarding alleged corruption of more than Rs. 10,000 crores due to ill policies in DDA relating to Rohini Sectors 28 to 32 had not been either investigated or informed to him in respect of the action taken in the matter. The Commission was in receipt of a written submission from the Appellant/ Complainant dated 25.12.2019 wherein it was inter alia stated that the RTI application/ Complaint was in the larger public interest since it related to an issue involving corruption of thousands of crores of rupees and hence the information should have been disseminated in the public domain by the Public Authority at their own. Furthermore, various PIOs of various Public Authorities within DDA were making attempts to dilute the RTI Act, 2005 by just transferring the RTI application to one another but none was providing him with the requested information. Thus, there was deliberate attempt to deny the information by indulging in such practices of disowning the RTI by stating that it was not related to their department. While referring to the complaints relating to Corruption filed by him, the Appellant/ Complainant stated that no information was provided to him despite repeated follow ups with various Departments of DDA. Thus, after exhausting all the options to get the information he was forced to file 3 RTI applications against DDA. The matters were heard by the Commission in File No CIC/DDATY/A/2016/307082/KY and CIC/DDATY/A/2016/307081/KY; CIC/DDATY/C/2017/116888 and CIC/DDATY/C/2017/116887. The instant matters under consideration i.e. CIC/DDATY/A/2018/150361, CIC/DDATY/A/2018/150365 and CIC/DDATY/A/2018/150366 pertained to the RTI application dated 13.04.2018. The Appellant/ Complainant thus sought compliance of the earlier orders pronounced by the Commission. On perusal of the records, it was observed that the Respondent vide his letter dated 25.06.2018 referred the matter to DD (LAB) Rohini and AVO-12, DDA for facilitating inspection of the records. During the hearing, it was observed that the Respondent remained clueless about the action taken in the matter and attempted to toss the matter to LAB and Ministry of Housing & Urban Affairs. Due to the issuance of notice of hearing by the Commission, it was informed by DD (LAB) / FAA that Ministry of Housing & Urban Affairs vide its letter dated 13.08.2019 had requested to furnish certain documents for further proceeding the case. A copy of the correspondence between DDA and Ministry of Housing & Urban Affairs was produced before the Commission. A reference was drawn to the amended Nazul Rules that inter alia provide for disposal of residential and commercial plots on freehold. Nonetheless, it was observed that action taken on the complaint filed by the Appellant/ Complainant had not been intimated to him.
The Commission noted that in the earlier orders passed by it; the Commission had noted serious lacunae in the Respondent Public Authority in attending to matters relating to larger public interest. During the hearing the Respondent feigned ignorance about an important corruption matter being dealt with so casually by the CVO of the Respondent Public Authority. The Complainant / Appellant alleged that the CVO of DDA had been casual, negligent and callous in attending to the complaints filed by him and no remedial action was initiated despite the claims of the Public Authority for eradicating corruption in the institution.
The Commission felt that correct and 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 3 of 8"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, 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.
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 Page 4 of 8 appellate authority should be a speaking order giving justification for the decision arrived at.
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."
The Commission drew its reference to the objective of promulgation of the RTI Act, 2005 which was enacted to provide for citizens to secure, access to information under the control of public authorities and to promote transparency and accountability in the working of every public authority. The preamble of the Act reads as follows:
"An Act to provide for setting out the practical regime of right to information for 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, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.
WHEREAS the Constitution of India has established democratic Republic;
AND WHEREAS democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed;
AND WHEREAS revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information;
AND WHEREAS it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal;
NOW, THEREFORE, it is expedient to provide for furnishing certain information to citizens who desire to have it."
Much before the legislative enactment of the RTI Act, 2005, our Judiciary, in a progressive interpretation of the Constitutional provisions, had paved the way towards delineating the Right to Information. In 1975, in State of UP vs. Raj Narain (1975 AIR 865, 1975 SCR (3) 333), Justice Mathew had ruled:
"In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way by their public functionaries."Page 5 of 8
The Hon'ble Supreme Court of India in the decision of R.B.I. and Ors. V. Jayantilal N. Mistry and Ors, Transferred Case (Civil) No. 91 of 2015 (Arising out of Transfer Petition (Civil) No. 707 of 2012 decided on 16.12.2015 observed as under:
"The ideal of 'Government by the people' makes it necessary that people have access to information on matters of public concern. The free flow of information about affairs of Government paves way for debate in public policy and fosters accountability in Government. It creates a condition for 'open governance' which is a foundation of democracy"
The High Court of Delhi in General Manager Finance Air India Ltd & Anr v. Virender Singh, LPA No. 205/2012, Decided On: 16.07.2012 regarding the disclosure of information for public interest, held:
"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 High Court of Bombay in Shonkh Technology International Ltd. v. State Information Commission Maharashtra Konkan Region, Appellate Authority and United Telecom Limited v. State Information Commission Maharashtra Konkan Region and Ors., W.P. Nos. 2912 and 3137 of 2011 decided on 01.07.2011 held as under
"The RTI Act is an Act to provide for setting out the practical regime of right to information for 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. The preamble of the RTI Act itself refers to this aspect and the constitutional principles enshrined in several articles of the Constitution. It is very clearly postulated that democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold the Governments and their instrumentalities accountable to the governed. The revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information. Therefore, the RTI Act seeks to harmonize these conflicting interests while preserving the paramount nature of democratic ideals."
Moreover, the Hon'ble Supreme Court of India vide its important and significant decision passed by way of resolution dated 03.10.2017 declared that decisions regarding uploading of collegiums resolutions should be uploaded on website for ensuring transparency of collegium system.
" THAT the decisions henceforth taken by the Collegium indicating the reasons shall be put on the website of the Supreme Court, when the recommendation(s) is/are sent to the Government of India, with regard to the cases relating to initial elevation to the High Court Bench, confirmation as permanent Judge(s) of the High Court, elevation to the post of Chief Justice of High Court, transfer of High Court Chief Justices / Judges and elevation to the Supreme Court, because on each occasion the mater...Page 6 of 8
The Resolution is passed to ensure transparency and yet maintain confidentiality in the Collegium system."
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 wherein while explaining the term "Public Interest" it was held as under:
"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.)]."
Furthermore, 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':
"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 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."Page 7 of 8
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, it is evident that the Respondent Public Authority erred in addressing the issues raised by the applicant in the larger public interest which defeats the purpose for which the RTI Act, 2005, was enacted. While cautioning the CPIO for its inaction, the CVO, DDA is advised to take note of the allegations made by the Applicant and furnish the updated status in the matter within a period of 15 days from the date of receipt of this order failing which the Commission could initiate under Section 20 (1) of the RTI Act, 2005.
The Appeal / Complaint 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: 06.01.2020 Copy to
1. Shri Sharad Kumar, Vigilance Commissioner, Central Vigilance Commission, A-Block, GPO Complex, Satarkata Bhavan, INA, New Delhi, Delhi 110023
2. The Lieutenant Governor, Delhi, 6, Raj Niwas Marg, Ludlow Castle, Civil Lines, Delhi 110054
3. Secretary, Ministry of Housing & Urban Affairs, Nirman Bhawan, Maulana Azad Road, New Delhi 110011
4. Vice Chairman, DDA, A-Block, 1st Floor, Vikas Sadan, INA, New Delhi - 110023 Page 8 of 8