Central Information Commission
Mrj.P Shokeen vs Mcd, Gnct Delhi on 1 September, 2014
CENTRAL INFORMATION COMMISSION
ROOM NO. 329, SECOND FLOOR, C-WING
August Kranti Bhawan, Bhikaji Cama Place,
New Delhi-110066
Tel. No. 91-11-26717356
F.No. CIC/DS/A/2013/001091-YA
F.No. CIC/DS/A/2013/001098-YA
F.No. CIC/DS/A/2013/001097-YA
Date of Hearing : 07.08.2014
Date of Decision : 01.09.2014
Appellant : Shri J.P. Shokeen,
Smt. Reena Dahiya
-rep. by Shri J.P. Shokeen
New Delhi
Respondent : Shri S.A.Ansari, AE(B)-rep. PIO
Shri Feroze Muzaffar, AE(B)/PIO/NGZ South Delhi Municipal Corp., Delhi Information Commissioner : Shri Yashovardhan Azad Relevant fact emerging from appeal: F.No. CIC/DS/A/2013/001091-YA RTI Application filed on : 21.02.2013 PIO replied on : 04.04.2013 First Appeal filed on : 18.04.2013 First Appellate Authority (FAA) order on : No order Second Appeal received on : 27.06.2013 Relevant fact emerging from appeal: F.No. CIC/DS/A/2013/001098-YA RTI Application filed on : 15.02.2013 PIO replied on : 09.05.2013 First Appeal filed on : 18.04.2013 First Appellate Authority (FAA) order on : No order Second Appeal received on : 27.06.2013 Relevant fact emerging from appeal: F.No. CIC/DS/A/2013/001097-YA RTI Application filed on : 12.01.2013 PIO replied on : 28.02.2013 First Appeal filed on : 10.04.2013 First Appellate Authority (FAA) order on : 22.04.2013 Second Appeal received on : 27.06.2013 F.No. CIC/DS/A/2013/001091-YA The appellant sought information regarding circulars/guidelines for regularisation of unauthorised construction, whether an unauthorised construction can be regularised pending complaint for unauthorised construction against the same and number of applications received in the dept. from 01.01.2013 till date for regularisation of unauthorised construction.
Both parties are present. The appellant filed an RTI application on 21.02.2013 seeking the above information. The PIO gave point-wise reply and offered inspection. The FAA did not dispose of the appeal.
The appellant stated that no rule or name/number of circular has been mentioned as Point 1, instead it has only been informed that an unauthorised construction can be regularised. For the remaining points, no information has been provided. The respondent expressed regret and stated that the then PIO did not give a proper reply and that now a revised reply shall be given to the appellant.
F.No. CIC/DS/A/2013/001098-YA F.No. CIC/DS/A/2013/001097-YA The appellants sought information whether police force was called for demolition of unauthorised construction, whether demolition was done, copy of notice of vacation, copy of action taken report on several complaints filed against unauthorised construction at Property No. C-27, Milap Nagar, Uttam Nagar, New Delhi.
Smt. Reena Dahiya is represented by Shri J.P. Shokeen. The appellants filed RTI applications dated 12.01.2013 & 15.02.2013 respectively. The PIO gave point-wise replies in response to both the RTI applications and offered opportunity of inspection. The FAA disposed of first appeal dt. 12.01.2013.
The appellant stated that he was called for inspection of files, twice, but the same were not available. The respondent stated that the area of Mila Nagar was earlier under West Zone and then the same was transferred to Najaf Garh Zone and that the files were also transferred to NGZ; however, it has now been transferred back to West Zone. The appellant urged that in response to RTI application dt. 15.02.2013, the PIO, on Point 2, stated that the matter relates to the dept. of Delhi Police. On query by the Commission whether South Delhi Municipal Corporation will not have any record of police force being sent for demolition of the said property, the respondent stated that they will have the said record; a noting to the same effect should be there in the concerned file. Further, the respondent stated that the files may have been transferred to another zone as the property was regularised on 20.06.2013 Interim Decision:
After hearing the parties and on perusal of records, the Commission is of the view correct information was not disclosed as it should have been, when the same was sought by the appellant. The matter, being related to an unauthorised construction which has now been regularised, is in public interest. Further, the Commission does not affirm the plea taken by the respondent authority that the information whether police force was sent for demolition of the said property relates to the Delhi Police Dept. The respondent present, himself, has stated that there has to be a noting to the same effect in the concerned file.
The Commission directs the respondent to put up the file regarding regularisation of the said property and other relevant files, for detailed inspection, along with a written submission before the Commission on 20th August, 2014 at 16:00 hrs. for final decision; fresh hearing will be held, if desired.
Decision:
Smt. Reena Dahiya is represented by Shri J.P. Shokeen. The appellant has furnished a written submission. Shri Feroze Muzaffar, AE(B)/PIO/NGZ put up the file regarding regularisation of Property No. C-27, Milap Nagar, Uttam Nagar, New Delhi, for detailed inspection. The files has been perused.
The appellant filed a number of complaints regarding unauthorised construction on the said property to several authorities; however, all of them went unheard. The time- line, as available from the record, can be traced back to 2011. 04.11.2011 - A complaint regarding unauthorised construction on the said property was filed with SDM/Patel Nagar.
13.02.2012 - SDM/Patel Nagar, after going through relevant record, observed that the owner of the said property was engaged in unauthorised construction without approved Building Sanction Plan or any other permission for construction and that activities of the owner are causing nuisance.
SDM/Patel Nagar directed the owner to remove the unauthorised construction within 15 days of the order, failing which unauthorised construction was to be removed by MCD.
31.05.2012 - Reminder was sent by SDM/Patel Nagar to DC/SDMC and EE(B) for execution of order.
06.08.2012 - Due to non-action by concerned authorities, complaint was filed in the Public Grievance Commission (PGC) for providing complete record on non-action to stop unauthorised construction.
Meanwhile, several reminders were sent to both to DC and EE(B), SDMC for execution of order by SDM/Patel Nagar.
08.01.2013 - Building Dept./NGZ received an application from the owner of the property in question for regularisation of his property. 18.02.2013 - AE(B)/NGZ in his report furnished before the PGC mentioned that demolition action on the said property was fixed for 13.02.2013 and accordingly concerned JE along with demolition squad and police force from PS Bindapur went to the site and found the said property occupied and due to several reasons, the property could not be demolished. The PGC directed EE(B), SDMC to take further necessary action. 18.03.2013 - JE(B)/NGZ submitted the file for regularisation of the said property to the CTP office for necessary comments regarding status of the plot; height of building allowed; FAR, setbacks & ground coverage allowed, etc. Meanwhile, internal correspondence within the MCD for regularisation of the said property was in process. An interesting feature to note here is that on 14.06.2013, the said file was forwarded to the O/o C.T.P. for clearance and the concerned persons, namely, SE/NGZ, DC/NGZ, CTP & Architect and all of them cleared the file for regularisation of the said property on 14.06.2013 itself; except for the concerned AE(B)/EE(B), when he was the first hurdle to be crossed by the officials in the top echelons of MCD. The said property was regularised on 20.06.2013 and JE(B) furnished the action taken report before the PGC on 24.06.2013 stating that the said property has been regularised.
The Commission finds that the said property was regularised when a complaint against it for unauthorised construction was pending in PGC. While regularising the property, the party who filed the complaint for unauthorised construction should have been given an opportunity of being heard. This is a gross violation of the principles of natural justice. MCD officials appear to be not following PGC's orders and in fact appear to be colluding against it by getting the property regularised and to put a cloak of legality on it.
The matter being one of public interest, wherein flagrant disregard towards a complaint filed for removal of an unauthorised construction has been shown, the Commission takes a very serious view and directs PIO/EE(B)/NGZ in appeal no. CIC/DS/A/2013/001091-YA to furnish written submissions, latest by 1st October, 2014, to show cause why maximum penalty should not be imposed on him for not providing information, which is based on question of facts, to the appellant, when it could and should have been provided.
Further, the Commission directs PIO/EE(B)/NGZ to provide copy of relevant circulars/guidelines in respect of regularisation of unauthorised construction as mentioned in point 1 of the RTI application dated 21.02.2013. If no circular/guidelines in this respect is available, then the same be mentioned; however, if it exists, the exact provision/rule be provided to the appellant. As for point 2, it is a question of fact whether or not a property can be regularised by the department pending complaint for unauthorised construction against it; and the same needs to be answered by the respondent authority. The information on points 1 & 2 shall be provided to the appellant within 3 weeks of the receipt of this order, under intimation to the Commission.
In appeal no. CIC/DS/A/2013/001098-YA, the Commission directs PIO/EE(B)/NGZ to provide copies of requests to SHO, Bindapur, providing police force for demolition of said unauthorised construction, from 02.01.2013 to till date on point 1 and notice for vacation of premises, if any, issued to the owner of unauthorised construction on point 5. As for point 2, the same relates to the office of SDMC itself and not the police department to which the RTI application has been transferred. SHO, Bindapur in his reply dt. 02.04.2013 has stated that police assistance was provided. The same cannot be without the MCD's permission, for which the dept. must be holding some record. The same needs to be provided to the appellant. It appears that the respondent authority has done everything on its part to obstruct the flow of information and has transferred the RTI application to the police department, when the same information has to be available with the respondent authority itself. Therefore, information on points 1, 2 & 5 shall be provided to the appellant, within 3 weeks of receipt of this order, under intimation to the Commission.
Further, the Commission directs PIO/EE(B)/NGZ to furnish written submissions, latest by 1st October, 2014, to show cause why maximum penalty should not be imposed on him for transferring the RTI application unnecessarily when the information on Point 2 was available with the dept. itself and for not providing the relevant files for inspection, time and again to the appellant and harassing him.
In appeal no. CIC/DS/A/2013/001097-YA, wherein the appellant has sought for action taken reports on a reminder by the SDM/Patel Nagar to DC/SDMC for removal of unauthorised construction and directions given by the PGC vide order dated 11.12.2012, along with certified copies of documents related to booking of property and communications made with the concerned police station for providing security for carrying out demolition of the property, the respondent authority has chosen not only to obstruct the flow of information but also deflect the appellant by stating, "Interpretations/clarification/opinion to the query are not covered under the RTI Act 2005. The information available in material form can only be supplied under the RTI Act. Moreover, the information is available on MCD website www.mcdonline.gov.in in the form of list of unauthorised construction booked u/s 343 & 344 of the DMC Act by this office. Further it is also informed that the desired document is a Third party document, so under the RTI Act 2005, it can only be provided with the consent of the Third party."
The queries in the RTI application dated 12.01.2013 filed by Smt. Reena Dahiya, are clear and specific and are nowhere in form of interpretation/clarification/opinion.
The Commission is of the view that details regarding alleged illegal/unauthorized construction, against which the SDM/PGC gave orders for taking action, by no stretch of imagination, can be considered to be a third party information for which permission has to be sought from someone engaged in illegal/unauthorized construction. Moreover, Smt. Reena Dahiya has already agitated the case before the PGC and documents in this regard have been produced before the Commission. Further there is no record to show that the Appellant's RTI application was rejected claiming any of the exemptions under Section 8(1). No evidence has been produced before the Commission justifying denial of information to the Appellant.
Therefore, the Commission directs PIO/EE(B)/NGZ to provide certified copies of information sought on points 1 to 4 to the appellant, within 3 weeks of receipt of this order, under intimation to the Commission.
The Commission finds that here is a case where in the property was regularised while a complaint against it for unauthorised construction was pending with the PGC and several reminders by the SDM/Patel Nagar for compliance of his orders for removal of unauthorised construction had been sent to SDMC. The Commission is distressed to note that while the information was denied to the appellant with a mala fide intention and to hide the wrong-doings of the officials in the higher echelons of the respondent authority, the property was regularised in one day, which in normal course takes months.
The Commission, hereby, directs PIO/EE(B)/NGZ to furnish written submissions, latest by 1st October, 2014, to show cause why maximum penalty should not be imposed on him for obstructing the flow of information and misleading the appellant.
In view of the above, the appeals are disposed of accordingly.
(Yashovardhan Azad) Information Commissioner 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.
(Braham Dutt Harit) Dy. Secretary & Dy. Registrar