Central Information Commission
Shri Mahabir Singh vs Supreme Court Of India on 5 November, 2009
CENTRAL INFORMATION COMMISSION
Appeal Nos. CIC/WB/A/2008/00725 & 726 dated 17-4-2008
Right to Information Act 2005 - Section 19
Appellant: Shri Mahabir Singh
Respondent: Supreme Court of India
Decision announced 5.11.'09
FACTS
These are two appeals moved by Shri Mahabir Singh of Nangal Raya, New Delhi against the information provided to him by CPIO, Supreme Court of India (SCI) File No. CIC/WB/A/2008/00725 In this case the following request was moved by Shri Mahabir Singh on 26-11-07 before CPIO, SCI:
"1. Please intimate the Monitoring Committee constituted by Hon'ble Court do cover under RTI Act, 2005. If yes please inform the name, designation and address of the CPIO and their First Appellate Authority. If no, state the reason with its authenticity.
ii. Please inform the terms and condition decided/ ordered/ directed by the Hon'ble Court in their order dated 24.3.2006 for the benefits of Proviso of Section 14 of DD Act, 1957 also clarify that whether these terms and condition are only and there is no hidden term and condition.
iii. Please inform whether the Monitoring Committee have right to reject an application, without giving any specific reason, filed before it through MCD for the benefit of the Proviso of section 14 of DD Act, 1957.
iv. Please clarify whether the Monitoring Committee itself can decide the terms and condition for the benefits of the Proviso of Section 14 of DD Act, 1957 without any order of Hon'ble Court, also clarify whether the Hon'ble Court have given any right to the Monitoring Committee for the same. v. Hon'ble Court directed MCD on 24.3.2006 in terms of our direction dated 16.2.2006, the process of sealing is required to commence w.e.f. 29.3.2006. Learned Counsel for the MCD, however, points out that on some roads in some areas, partial commercial user has been allowed. It is stated that in respect of some roads on notified stretches, mixed land use to the extent to 25% of the permissible ground floor on 50 sq. mtr. Whichever is less has been allowed as per the regulations, in respect 1 of some other roads, commercial use of ground floor with upper floor residential has been allowed. However, the not handed over to us in court of behalf of the MCD does to specify the roads and the areas. But that as it may, for the present, we direct that MCD should point our and file details of such roads before the Monitoring Committee which may permit the MCD not to seal premises in such area. In view of the above please inform, if MCD has filed details of such roads before the Monitoring Committee. If yes, please supply the certified copies of the documents submitted by MCD in this regard. If no, is it matter of contempt of the Hon'ble Court?
vi. I filed an affidavit on the order of Hon'ble Court, on 5th April 2006 before MCD with declaration that I have stopped the misuse on or before 30th June, 2006. After that, I filed the application before the Monitoring Committee as well as MCD for the claim for benefit of Proviso of Section 14 of DD Act, 1957 and as per order of Monitoring Committee, through MCD, I filed revised/ fresh affidavit along with evidence on 17.8.2006 before the MCD. In view of the above please inform which affidavit stands applicable in my case, with relevant rule/ act/ order etc made in this regard. (photocopy of all relevant documents enclosed)."
To this Shri Mahabir Singh received a response dated 29-11-07 from CPIO, Shri Ashok Kumar, Addl. Registrar, SCI informing him as follows:
"You are seeking legal opinion, advice and interpretation of the order dated 24.3.2006 passed by this Hon'ble Court in I. A. No. 22 in Writ Petition (Civil) No. 4677 of 1985 titled M. C. Mehta vs. Union of India & Ors. For redressal of your grievance and not information under the RTI Act, 2005. this is to inform you that it is beyond the jurisdiction and scope of duties of the CPIO, Supreme Court of India under the Right to Information Act, 2005 to interpret the law and judgments/ orders of this Hon'ble Court or of any other Court, opine, comment and advise on matters. Hence your request cannot be acceded to.
As regards question (v), you may, if so advised, approach the Municipal Corporation of Delhi.' Shri Mahabir Singh then moved an appeal before the Registrar, SCI Shri Sunil Thomas contending that "all the questions are based on the documents and facts and information required is covered under RTI Act, 2005. Question No. (v), if pertaining to the MCD, could be transferred within 5 days as per section 6 (3) of the Act to the concerned PIO/ MCD". Upon this Shri 2 Sunil Thomas, Appellate Authority, SCI in Appeal No. 90/2007, decided on 16-1-08 as follows:
"A perusal of the questions sought to be answered by the CPIO, discloses that the CPIO was justified in holding that it was not virtually information that was sought by the appellant but opinion, advice and comments which cannot fall within the heading of information as defined under the RTI Act. Hence, that part of the impugned order is unassailable, and is upheld.
With respect to question No. (v), it was held that the appellant, if so advised, could approach the MCD. However, it is evident that MCD is also a public authority under the RTI Act. In the above circumstances, the CPIO ought to have transferred the matter to the CPIO, MCD, if it was found that the CPIO himself was not holding the above information. In view of the above facts, I feel that the CPIO should have referred the matter to the CPIO, MCD. Since the Appellate Authority can exercise all the functions of the CPIO rather that relegating the matter to the CPIO, I feel that the appellate authority itself can transfer question No. (v) alone to the CPIO, MCD to avoid delay for passing appropriate orders.
The appeal is allowed in part to the above extent. The office shall transmit a copy of the above application to the CPIO, MCD under section 6 (3) of the Right to Information Act, 2005."
Subsequently, in compliance with this decision Shri Ashok Kumar in his letter of 18-1-08 with a copy endorsed to appellant Shri Mahabir Singh transferred the application with reference to question No.5 to Shri Deepak Hastir, DC, West, MCD. Upon this the Law Department of the MCD has through a letter of its PIO of 11-2-08 informed the appellant as below:
"The information sought under point (v) does not pertain to Law Dep't. and the same could be available with S. E. (B) HQ.
In view of the above, the subject application is being transferred to S. E. (B) HQ with the request to supply the information to the applicant directly under intimation to the undersigned."
Appellant has then moved a second appeal before us with the following prayer:
"It is, therefore, most respectfully prayed that the concerned CPIO/ PIO may kindly be ordered to answer every question/ information sought/ demanded by the appellant as per nature of question of the application/ appeal in the interest of justice."3
Shri Mahabir Singh has, however, reiterated his request in questions 1 to 4 as below:
"Appellant requests to refer section 2 (f) of RTI Act, 2005. But as per CPIO/ Addl. Registrar, Q. No. (i) to (iv) except (v) were not acceded to due to the reasons that the same were for seeking legal opinion, advice and interpretation of the orders of SC. Appellant humbly requests CIC to make it clear because CIC is the last approach for general public like appellant. It may also please be remembered that the application was submitted."
File No. CIC/WB/A/2008/00726 In this case a request was moved by Shri Mahabir Singh before he Addl. Registrar, CPIO, SCI on 15-12-07 seeking the following information:
"i. Please clarify whether my affidavit submitted in the MCD on 17.8.2006 was correct in view/ accordance with the orders passed on 24.3.2006 by the Hon'ble Court (photocopy of the affidavit already sent with the my RTI application dated 26.11.2007 to the addressee). ii. Please supply the certified copy of action taken on my letter dated 8.9.2006 and 13.12.2006 by the Monitoring Committee addressed to the Members of the Monitoring Committee.
iii. Please supply the certified copy of all documents sent by the DC, West, MCD to the Monitoring Committee in connection with the observations made on 14.9.2006 by the Monitoring Committee (photocopy of highlighted lines of observation is enclosed). Also clarify whether the Monitoring Committee have any right to make such observations as made in my case. If yes, please supply the certified copy of relevant rule/ act/ order etc. made in this regard.
iv. Please clarify whether Monitoring Committee have any right asks relationship between the applicant, Mahabir Singh and Mr. Kanhiya Lal, as done in my case (photocopy of highlighted lines of observation is enclosed). If yes, please supply the certified copy of relevant rule/ act/ order etc. made in this regard. v. Enclosed is a copy of letter dated 29.9.2007 by MCD, in which some liens regarding direction by Monitoring Committee is highlighted. In view of that please supply the certified copy of same directions made to MCD by the Monitoring Committee."
In his initial response of 19-12-07 CPIO, Shri Ashok Kumar, Addl. Registrar, SCI transferred the application to Shri Deepak Hastir, DC, West, MCD informing DC, West that petitioner Shri Mahabir Singh has no case 4 pending in the Supreme Court of India. This was followed by a more detailed reply on 12-1-08 informing Shri Mahabir Singh as follows:
"The information sought by you relates to the office of the Municipal Corporation of Delhi and therefore the same had already been transferred to Shri Deepak Hastir, Deputy Commissioner (West), Municipal Corporation of Delhi, Community centre, Vishal Enclave, New Delhi-110027 vide this Registry's letter of even number date 19.12.2007.
As regards your question nos. (ii), (iii) & (iv) this is to inform you that the records of the Municipal Corporation of Delhi are not held by or under the control of the CPIO, Supreme Court of India and hence your request for furnishing certified copies of the record of the MCD cannot be acceded to by the CPIO of this Court under the Right to Information Act, 2005. you may, is so advised, approach the Municipal Corporation of Delhi for obtaining certified copies of the record from the concerned department.
As regards question nos. (i) & (iv) relating to seeking legal opinion and advise, this is to inform you that it is beyond the jurisdiction and scope of duties of the CPIO, Supreme Court of India under the Right to Information Act, 2005 to interpret the law, judgments and orders of this Hon'ble Court or of any other Court and legal documents, opine, comment, give clarifications and advise on matters. The Monitoring Committee has been appointed by this Hon'ble Court vide orders dated 24.3.2006 to oversee the implementation of the law and the CPIO, Supreme Court of India under the Right to Information Act, 2005 has no jurisdiction to interpret the said order and advice you in the matter.' CPIO has further informed appellant that "your matter is subjudice, hence no action is called for under the Right to Information Act, 2005." In the meantime, however, on receipt of the initial response appellant has moved an appeal on 23-11-07 with the following plea:
"That the CPIO/ Addl. Registrar, in place of giving replies to the queries of the appellant, has transferred the application to DC (W), MCD. In fact the matter directly pertains to Monitoring Committee/ CPIO and as per advice of CIC the appellant filed the RTI Application to the CPIO/ Addl. Registrar."
Upon this by his order of 16-1-08 Shri Sunil Thomas, Appellate Authority, SCI, in Appeal No. 4/2008, has held as follows:
"It was contended that the transfer of his application to the MCD by the CPIO was illegal and hence liable to be interfered with.5
At the time of hearing of the connected appeal, a copy of the letter issued by the Member of the Monitoring Committee to the Registrar General, Supreme Court of India was placed for perusal by the appellant himself. In the above letter, it was mentioned that several requests were being made to the Monitoring Committee, regarding its functioning. According to the Monitoring Committee considering the volume of the work involved in the functioning of the monitoring Committee, it was unable to accede to the request of the various applicants. After considering the above, Hon'ble Supreme Court vide its Order dated 23.7.2007 directed as follows:-
"We have perused the report of the monitoring Committee so far as demands of reasons of sealing are concerned. It is stated by Ld. AC that the reasons are available in the files and photocopies can be made available by the MCD. We direct accordingly."
This shows that Hon'ble Supreme Court has directed that in relation to matters covered by the Monitoring Committee, since the files are available with the MCD, they can deal with it and make available the photocopies on behalf of the Monitoring Committee. Though the Hon'ble CIC had directed the CPIO to consider either himself or to refer it to the Monitoring Committee, in view of the direction by the Hon'ble Supreme Court to the MCD to deal with the matters pertaining to Monitoring Committee, I feel that the direction of the CPIO in transferring the matter to the MCD instead of Monitoring Committee is in consonance with the direction of the CIC. To that extent the CPIO has substantially complied with CIC's Order. In view of the above matter, I find no substance in the contention of appellant which is liable to the rejected."
It will, thus, be clear that this application was moved before SCI in compliance with a decision of this Commission ruling that it was not the MCD but the Monitoring Committee which was required to answer the questions of appellant. Consequently, on not receiving a response from the MCD appellant has on 16-2-08 moved an appeal before the Addl. Commissioner (Health) and 1st Appellate Authority, MCD with the following prayer:
"It is, therefore, most respectfully prayed that every question/ information sought/ demanded by appellant may kindly be supplied/ answered as per the application/ appeal as per the Right to Information Act in the interest of justice."
On failing to receive a response Shri Mahabir Singh has then moved his second appeal before us with the following prayer:
6"It is, therefore, most humbly and respectfully prayed that the most closely concerned authority may kindly be ordered to supply information sought for the appellant/ complainant as per nature of question of the application/ appeal/ complaint at free of charge as per section 7 (6) and punish the concerned, according to section 7 (1) and 18 (1)
(e) as per the Right to Information Act, 2005 in the interest of justice."
The grounds on which appellant Shri Mahabir Singh has based this appeal are as below:
"1. DC (W) had already pleaded in the above referred appeal (00047) that the Monitoring Committee was answerable only to the Supreme Court of India and therefore, the MCD had no role in this matter.
2. CPIO has shown inability as the same was beyond the jurisdiction and scope of duties of the CPIO to interpret the law judgments and orders to Hon'ble Court.
3. 1st Appellate Authority found no substance in the contention of appellant. Also given reference of the orders of Hon'ble Supreme Court dated 23.7.2007:
We have perused the report of the monitoring Committee so far as demands of reasons of sealing are concerned. It is stated by Ld. AC that the reasons are available in the files and photocopies can be made available by the MCD. We direct accordingly.
The underlined reason is very clear but 1st appellate authority intend to cover all matters relating to the Monitoring Committee/ Hon'ble Supreme Court and advices/ misleads appellant to show the way to approach MCD and get rid of the responsibility of himself as well as the CPIO/ Addl. Registrar.
Considering the time limit from the date of transferring the application and while no response from the PIO/ DC( W), MCD, appellant filed 1st appeal to the 1st Appellate Authority on 16.2.2008 to the Addl. Commissioner (Health), MCD."
The appeal was heard on 5-11-2009. The following are present:
Appellant Shri Mahabir Singh Respondents MCD Shri P. R. Meena, EE (B) West Zone.
Shri Kaptan, AE( B) West Zone.
.7
Shri Harminder Singh, EE (B), HQ-II Shri R. P. Sharma, AE (B).
SCI Shri Amit Anand Tiwari, Advocate, CPIO, Supreme Court of India. Shri Rajpal Arora, CPIO, Supreme Court of India Shri Surendra Kumar, Dy. Law Officer.
Appellant Shri Mahabir Singh submitted that insofar as the decision of the SCI in order dated 23-7-07 are concerned this only refers to questions regarding "reasons for sealing" as clearly stated in the decision of the SCI. His question, however, did not pertain to reasons for sealing since none of his properties had been sealed. In this matter Shri Mahabir Singh was supported by Shri Harminder Singh, EE (B) HQ-II who submitted that the Monitoring Committee as part of its exercise had gone into the Master Plan, Road Layout etc. well beyond the question simply of sealing.
Shri Amit Anand Tiwari, learned counsel for SCI acknowledged that this Commission had indeed directed that the Monitoring Committee being a public authority was liable to respond to requests for information. He, however, submitted that in light of the order of the Supreme Court this authority stands now delegated to the MCD and, therefore, it is the MCD which must supply this information. On the question of whether the order of the Supreme Court would refer also to matters beyond the question of sealing he submitted that the only responsibility of the Monitoring Committee was to oversee sealing of offending premises in light of the Supreme Court directions.
Appellant Shri Mahabir Singh submitted that his request in appeal No. CIC/WB/A/2008/00726 stems from the following directions of the SCI in M.C. Mehta Vs. UOI in which the decision was taken to set up a Monitoring Committee in which Hon'ble Supreme Court has held as follows:
"Mr. Salve states that there may be some though very few in number, cases where user may have been prior to September, 1962 and such user may be protected under the proviso 1 . For the present, were direct that if an occupant of some premises claims benefit of proviso to Section 14 of the Act and files an affidavit with the MCD, to be immediately forwarded to the Monitoring Committee by the MCD, stating that since the user 1 Underlined by us to ease reference 8 was prior to September 1962, he is entitled to protection of proviso to Section 14 and also stating further that he has not obtained any sanction of building/ premises for construction of a residential building and would suffer the consequences of perjury and contempt of Court, if the affidavit is found to be false."
Shri Mahabir Singh also submitted that consequent to his application to the MCD assigned ID No. 2054 of 27-12-07 he has been given the following information.
"(i) The affidavit submitted by the applicant on 17.8.06 was checked by the JLO (WZ) and remarked as the affidavit is found correct.
(ii) The copy of the action taken the noting showing by the Monitoring Committee on the letter dated 8.9.2006 of the applicant has already been supplied to appellant vide reply of this I. D .No. 437 dated 16.10.06. no reference of letter dated 13.12.2006 is available in this office.
(iii) No documents were sent to the Monitoring Committee because monitoring committee has already rejected the case on 15.9.2006.
(iv) No documents were sent to the Monitoring Committee because monitoring committee has already rejected the case on 15.9.2006.
(v) Monitoring Committee had verbally asked for the same during the meeting."
However, he has not received a copy of ID No. 437 of 16-10-06 to which reference has been made in Para (ii) of this response. Shri Surinder Kumar, Dy. Law Officer, MCD submitted that he has already responded to the application of Shri Mahabir Singh in respect of appeal No. CIC/WB/A/2008/00725 on 11-2-08 as acknowledged by appellant in his appeal. The information sought can only be supplied by DC, West, MCD. Upon this Shri P.R. Meena, EE, West Zone submitted that the information sought was transferred by DC, West on 29-1-08 u/s 5(4) to Sr. Town Planner (DP) to provide the information sought in respect of para 5 of the request in appeal No. CIC/WB/A/2008/00725. He has no information as to whether any further information has been provided in this regard. Appellant Shri Mahabir Singh, however, was clear that no such response has been received.
In respect of question Nos. (ii),(iii) and (v) of the application in appeal No. CIC/WB/A/2008/00726 Shri Meena submitted that this information has 9 already been provided in the letter of JE (Building) WZ quoted above. Upon this, however, Shri Mahabir Singh stated that he had not received a copy of ID No. 437 dated 16-10-06 and he had received a contradictory information with regard to question No.(v), on which he has been told by the JD (Bldg.) WZ that the directions had been given verbally during a meeting and in another case the information was stated to have been enclosed in an attachment which, in fact, has not been attached.
DECISION NOTICE The decision of the Supreme Court of India in constituting the Monitoring Committee rules explicitly as follows:
"In order to oversee the implementation of the Law, namely sealing of offending premises 2 in terms of the letter and spirit of this Court's directions, it is necessary to appoint a Monitoring Committee instead of leaving any discretion with the officers of the MCD. Accordingly, we appoint a Monitoring Committee comprising MR. K. J. Rao, Former Advisor to Election Commissioner, Mr. Bhure Lal, Chairman, E. P. C. A. And Maj. General (retd.) Som Jhingan."
As emphasised by us above, the objective of the Monitoring Committee, therefore, clearly is the question of sealing of commercial premises. All other powers exercised by this Committee including on issue of partial commercial use of some roads, mixed land use to the extent of 25% of the permissible ground area together with regulations regarding the same and the plans in a zone with regard to conformity of use of land and building all flow from this specific objective. The ruling of the Supreme Court of India, therefore, in its order of 23-7-07 in light of the submissions of the Monitoring Committee, which were also perused by us in the hearing, leaves little room for ambiguity. This requires that in fact all documents pertaining to or leading up to the question of sealing are to be made available not by the Committee but by the MCD.
From the above it should be clear that the Supreme Court is no longer a party to this case. Compliance is expected from the MCD. In case of file No. 2 Underlined by us for emphasis 10 CIC/WB/A/2008/00725 one question requiring a response is due from Sr. Town Planner (DP). Since he has not provided this information thus far the Sr. T.P. will under sub Section (5) of Section 5 show cause as to why he should not be held liable for a penalty of Rs. 25,000/- for not having supplied the information from the date that application was transferred to him i.e. 29-1-08 till now. In addition he will now provide a response to appellant Shri Mahabir Singh within 10 working days of the date of receipt of this decision notice. The response of Sr. TP. to the show cause notice is expected by 23rd November, 2009, failing which it will be assumed that he has no explanation to offer and orders will be issued for recovery of penalty.
With regard to question Nos. (ii), (iii) and (v) of File No CIC/WB/A/2008/00726, a copy of ID No. 437 dated 16-10-06 will be sent to appellant within 10 working days of the date of receipt of this decision notice together with clarification as to the position of the copy of instructions sought by Shri Mahabir Singh in regard to question No. (v). Both appeals are thus allowed in part. The issue of cost will be decided in consequence of explanation received to the Show Cause Notice detailed above Announced in the hearing. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 5-11-2009 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
(Pankaj K.P. Shreyaskar) Joint Registrar 5-11-2009 11 12