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Atal Paramlal Ahirwar vs Ministry Of Home Affairs on 28 April, 2023

                                 के न्द्रीयसूचनाआयोग
                       Central Information Commission
                             बाबागंग नाथमागग, मुन नरका
                        Baba Gangnath Marg, Munirka
                         नईदिल्ली, New Delhi - 110067

नितीय अपील संख्या / Second Appeal No. CIC/M HOME/A/2022/625008

Shri Atal Paramlal Ahirwar                                    ... अपीलकताग/Appellant
                                  VERSUS/बनाम

PIO, Ministry of Home Affairs, New Delhi                ...प्रनतवािीगण /Respondent
Through: None

Date of Hearing                      :     17.04.2023
Date of Decision                     :     28.04.2023
Chief Information Commissioner       :     Shri Y. K. Sinha

Relevant facts emerging from appeal:

RTI application filed on              :    20.12.2021
PIO replied on                        :    13.01.2022
First Appeal filed on                 :    19.01.2022
First Appellate Order on              :    11.02.2022
2ndAppeal/complaint received on       :    02.05.2022
 Information sought

and background of the case:

The Appellant filed an RTI application dated 20.12.2021 before the Ministry of Home Affairs seeking information on the following points:-

The PIO, DS(CIS), Ministry of Home Affairs, vide letter dated 13.01.2022 replied as under:-

1. to 5. Nil information.

6. It is observed that the information sought is speculati ve in nature and amounts to seeking interpretation of the CPIO which is outside the purview of Section 2(f) of the RTI Act. However, lawful interception and monitoring is carried out by the authorised Law Enforcement Agencies with due permission of the competent authority if required in the interest of sovereignty and integrity of the country, security of the state, public order or incitement of an offence, under the legal provisions of section 5(2) of the Indian Telegraph Act, 1885 and section 69 of Information Technology Act, 2000 as per procedure defined in Rule 419A of the Indian Telegraph Rules and Information Technology Rules. Any disclosure of interception related information defeats the very purpose of lawful interception. Disclosure of such information is exempted under section 8(1)(a) and 8(1)(h) of RTI Act, 2005. In addition to this, the records pertaining to lawful interception are destroyed regularl y as per provisions contained in Sub-rule 18 of Rule 419A of the Indian Telegraph Rules, 1951.

Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 19.01.2022. The FAA/Jt. Secretary(CIS), Ministry of Home Affairs, vide order dated 11.02.2022 held as under:-

Aggrieved and dissatisfied, the Appellant approached the Commission with the instant Second Appeal.

Facts emerging in Course of Hearing:

Hearing was scheduled through virtual means after giving prior notice to both the parties. Appellant is present for hearing while the Respondent is not present for video conferencing. He sent an email stating due to some professional exigency, he was unable to attend hearing. He further communicated through the email that the reply dated 13.01.2022 is relied upon by them and there is no additional submission.

Decision:

Upon perusal of the documents on record, it is noted that first of all, the Appellant filed the RTI application before the Ministry of Home Affairs seeking information about his call details vide queries number 1 to 5, which are not likely to be held by the concerned public authority. Therefore the reply of the PIO on queries 1 to 5 is found to be consonance with the provisions of the RTI Act. It is pertinent to refer to the Apex Court's decision dated 09.08.2011 in the case titled: Central Board Of Secondary Education & Anr. vs Aditya Bandopadhyay & Ors.

" ...The RTI Act provides access to all information that is available and existing .... But where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non-available information and then furnish it to an applicant.

Emphasis supplied In response to the query number 6, it has been clearly stated by the Respondent that the records pertaining to lawful interception are destroyed regularly as per provisions contained in Sub-rule 18 of Rule 419A of the Indian Telegraph Rules, 1951. The Rule 419A(18) of the Telegraph Rules, 1951 reads as under: Records pertaining to such directions for interception and of intercepted messages shall be destroyed by the relevant competent authority and the authorized Agencies every six months unless these are, or likely to be, required requirements. The information sought by the Appellant in this case related to a period commencing 01.06.2019, and hence is not in possession of the Respondent, for dissemination thereof.

Thus after examining the relevant aspects of the appeal, it is noted that the information available on record with the public authority as defined under Section 2(f) of the RTI Act has been duly furnished by the Respondent, in terms of the provisions of the Act.

The Appellant has in the Second Appeal referred to Delhi High Court's order related to phone tapping without providing any specific particulars about any order. At this juncture, it is relevant to refer to an RTI application filed by Shri Kabir Shankar Bose, seeking the following queries:

"1. Whether my Vodafone no. 9999822445 has been placed under surveillance or tracking or tapping by any agency.

2. Under whose direction and by which agency my phone has been placed under surveillance or tracking or tapping.

3. All the dates on which my phone no.9999822445 was placed under surveillance or tracking or tapping."

Upon adjudication of the case, the Commission had vide order dated 12.09.2018 directed as follows:

"....8. The Commission is of the view that the respondent no.1 should collect information from the concerned service provider Page 3 of 5 (as sought by the appellant in his RTI application) and the same should be furnished to the appellant.

Decision:

9. The respondent no.1 is directed to comply with para no. 8 above, within 5 days from the date of receipt of this order ..."

The aforementioned order of CIC was challenged by the Appellant before the learned Single Judge in writ petition being W.P.(C) 12388/2018, which was dismissed by the learned Single Judge vide judgement and order dated 20.11.2018. Subsequently, the TRAI filed an LPA challenging the decision of the Single Judge and the Delhi High Court passed an order dated 09.08.2021 in LPA No. 721/2018 in the case: Telecom Regulatory Authority of India vs. Kabir Shankar Bose & Ors. whereby the Court stayed the order of this Commission and of the Single Judge, directing disclosure of information about phone tapping as following:

The Division Bench had passed the following order, in the aforementioned factual background:

In view of the above decision, the averment of the Appellant about direction for disclosure of phone tapping details by the Delhi High Court order appears to be factually incorrect and not sustainable.

Be that as it may, in so far as the appeal at hand is concerned, the Commission finds no legal infirmity in the response furnished by the Respondent, as discussed above. Hence, no further intervention is deemed necessary in this case.

The appeal is disposed off accordingly.

Y. K. Sinha ( वाई. के . नसन्द्हा) Chief Information Commissioner (मुख्य सूचना आयुक्त ) Authenticated true copy (अभिप्रमाभित सत्याभित प्रभत) S. K. Chitkara (एस. के. चिटकारा) Dy. Registrar (उप-पंजीयक)/011-26186535 Page 5 of 5