Central Information Commission
Sh. M.G. Menghaney vs Delhi Co-Operative Housing Finance ... on 20 November, 2009
CENTRAL INFORMATION COMMISSION
Club Building, Old JNU Campus,
Opposite Ber Sarai, New Delhi -110067
Tel: + 91 11 26161796
Decision No. CIC/SG/A/2009/000898/3651Adjunct
Appeal No. CIC/SG/A/2009/000898
SHOWCASUE HEARING:
Appellant : Sh. M.G. Menghaney,
C-3/8, Jiwan Jyoti Apartments
Pitam Pura, Delhi-110034
Respondent : Mr. L.R Garg, SPIO
Delhi Co-operative Housing Finance Corporation
Ltd,
3/6 Shri Fort Institutional Area,
August Kranti Marg, New Delhi-110049
RTI application filed on : 16.01.2009
PIO replied : 06.02.2009
First Appeal filed on : 18.02.2009
First Appellate Authority order : Not mentioned.
Second Appeal received on : 28.03.2009
BACKGROUND:
Information Sought:
The Appellant had sought for information regarding (Loan) non- payment of loan by Jiwan Jyoti Co-op. Group Housing Society, Kabirdas Marg, Pitampura, Delhi.
In respect of above, the following information sought for:
1. Total amount taken by the society with amount
2. Total amount paid by the society from Day one till 31.12.2008
3. Copy of the agreement entered with ... the society with date registration details.
4. The date on which the above name society became defaulter with details
5. List of members who have taken the loan with amount taken which the society has submitted to you in repeat of disbursement of loan.
6. Has the society submitted any form and or request for granting loan by the individual member with enclosures
7. List of members who have directly paid the loan amount in full or part to you for which you have issued the receipts with date and amount receive with name of the members.
8. Details members who have not paid in part/or full the 31 Dec 2008 to enable you to asses the amount yet to recovered vice versa- the amount due to you.
9. Do you have any worksheet prepared by you which in society the total amount due to you and the members with amount due as on 31.12.2008. What is the amount payable by all the default members?
10. Please provide details of recovery of loan amount from the above name society which have initiated as to the recovery steps taken from the .... of default by the society.
11. Please confirm that you had sent notices to the individual members of the society who have taken loan and have defaulted in many payments.
12. At any stage did you direct the society not to allow sell their flats as they were defaulters of loan amount.
13. Copy of one such no dues certificate issued by the society to the members, which has been communicated to you by the by the society, please confirm.
14. At any stage you were informed that the promoters the society or managing committee of the society has utilized any amount of loan amounts recovered from the members has been used for any other purpose than repayment to you.
15. Please advise any specific reason that your corporation has not been pursuing recovery loan amount from the society.
16. Please provide copies of loan confirmation issued by the society to your corporation as every financial year and if you stationary Auditors remark to the extant the loan amount recoverable as otherwise.
17. Please provide copies of the Auditors Report in respect the loan of the society.
18. Please allow inspection of file and records pertaining to the above mentioned loan.
The reply of PIO:
The information sought by the Applicant under para 1 to 5, 7, 10, 16, 17 are exempted form disclosure u/s 8(1)(d) & 8(1)(e) of the RTI Act, 2005 U/s 8(1)(d) says:-"notwithstanding anything contained in this Act, there shall be no obligation to give any citizen the information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that large public interest warrants the disclosure of such information"
U/s 8(1)(e) says:-
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen- information available to a person in his fiduciary relationship, unless the competent authority is satisfied that a large public interest warrants the disclosure of such information" under Right to Information Act, 2005.
6. The information sought by the Applicant under para 4, 6, 8, 9 and 11 to 15 are not covered under the definition of information as defined in section 2(f) of the RTI Act, 2005.
The First Appellate Authority ordered:
Not mentioned.
Relevant Facts that emerged during Hearing on 10 June 2009: "The following were present:
Appellant : Sh. M.G. Menghaney Respondent : Mr. L.R Garg, SPIO and Ms. Anita Agarwal, APIO The appellant states "there is a loan outstanding against my flat taken by me from DCHFC, the entire loan amount was Rs.1.95Cr. which has amounted to Rs.12.54Cr. as per the information gathered by me from various sources the defaulters are merely 25 to 26 therefore it is apparent that there is something wrong in account maintained by the society as well as DCHFC. As a citizen I must know what is the status of my loan account so that the steps are taken to look at the same. As well as there is dispute between the society and DCHFC as such both are not providing any information. It suits DCHFC as they have debiting interest and penal interest therefore it does not effect DCHFC directly but it certainly effects the person who had taken loan. It is requested that I may be provided the full information."
The PIO states " the loan was given to the society namely Jivan Jyoti Cooperative Society-CGHS by the DCHFC after execution of loan agreement and mortgage deed with the said society. As per the provision of the term and conditions of the loan the entire project land and tenement constructed their home of the said society are under the mortgage DCHFC. Since the loan was given to the society, DCHFC has been maintaining single loan account in the name of the society. The appellant is claiming to be the member of the said society and we are unable to workout his individual loan liability. However, the appellant may get the same information directly from the management of the said society under provision of Delhi Cooperative Society Act 2003 under Section 139. Since the information sought by the appellant pertains to loan transaction the same information is held in its fiduciary relationship, commercial confidence, trade secrets etc and the same is exempted from the disclosure under Section 8 of the RTI Act."
The PIO admits that there is a large default in the instant case. He states that there is a consistent default for many years and the present outstanding is over 12 crores. The PIO was asked by the Commission whether a large public interest could not be argued in a case where large defaults are occurring. The order was reserved during the hearing."
Commission's Order announced on 10 June 2009:
"The Commission has considered the PIO's claim for exemption under Section 8 (1) (d) and is not able to see any justification how its commercial confidence or trade secrets would suffer by disclosing this information.
We will now consider the claim of the information being exempt on account of Section 8 (1) (e). The traditional definition of a fiduciary is a person who occupies a position of trust in relation to someone else, therefore requiring him to act for the latter's benefit within the scope of that relationship. In business or law, we generally mean someone who has specific duties, such as those that attend a particular profession or role, e.g. financial analyst or trustee. The information must be given by the holder of information when there is a choice,- as when a litigant goes to a particular lawyer, or a patient goes to particular doctor. It is also necessary that the principal character of the relationship is the trust placed by the provider of information in the person to whom the information is given. An equally important characteristic for the relationship to qualify as a fiduciary relationship is that the provider of information gives the information for using it for the benefit of the giver. Hence the Commission agrees that the Public authority has a fiduciary relationship with the Cooperative Society which has taken a loan from it.
However, given the fact that the cooperative society has defaulted for many years on its loan payment and a large amount of over Rs.12cr. are outstanding, it is reasonable to argue that there is a large public interest in knowing the details and nature of such a loan. In matters where public financial institution which are public authorities large and continues defaults in loans could be the result of corruption or gross mismanagement and citizens have a right to know the details so that this acts as a check on such public authorities. In view of this the Commission feels that as per Section 8(2) public interest in disclosure outweighs the harm to the protected interest and hence the information must be disclosed.
Decision:
The Appeal is allowed.
The PIO will give the information sought by the appellant before 25 June 2009."
Relevant Facts emerging during Showcause Hearing on 20 November 2009:
The following were present:
Appellant : Mr.M.G. Menghaney Respondent : Mr. L.R Garg, PIO and GM;
An inspection has been done but the Appellant is not satisfied with the inspection. Some of the information has not obtained by the Appellant. The Appellant would like to again inspect the records to the take the information which has not been provided earlier. The consultation with the appellant and the respondent the Commission directs the PIO to facilitate an inspection of the relevant records on 23 November 2009 at 11.30am at the office of the Respondent. If any documents or records required by the Appellant are not in existence this should be stated in writing.
Shailesh Gandhi Information Commissioner 20 November 2009 (In any correspondence on this decision, mentioned the complete decision number.) (Ran)