Central Information Commission
Rahul Rana vs Delhi Metro Rail Corporation on 15 October, 2019
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. (s):- CIC/DMRCL/A/2018/612576/DMRCP-BJ+
CIC/DMRCP/A/2018/116550-BJ
Mr. Rahul Rana
....अपीलकता /Appellant
VERSUS
बनाम
CPIO
APIO - 4, Delhi Metro Rail Corporation Limited
Metro Bhawan, Fire Brigade Lane
Barakhamba Road, New Delhi - 110001
... ितवादीगण /Respondent
Date of Hearing : 14.10.2019
Date of Decision : 15.10.2019
ORDER
RTI - I File No.: CIC/DMRCL/A/2018/612576/DMRCP-BJ Date of RTI application 04.01.2018 CPIO's response 10.01.2018 Date of the First Appeal 11.01.2018 First Appellate Authority's response 06.02.2018 Date of diarised receipt of Appeal by the Commission Nil FACTS:
The Appellant vide his RTI application sought information on 02 points regarding the certified copies of movement of notice issued by Delhi Government against hike in fare of DMRC and the certified copy of Approval of Competent Authority and Government in the matter of fare hike, etc. The CPIO, vide its letter dated 10.01.2018, for points 01 & 02, while referring to Section 2(f) of the RTI Act, 2005, stated that the information sought was not available. Dissatisfied with the CPIO's response, the Appellant approached the FAA. The FAA, vide its order dated 06.02.2018, upheld the CPIO's response.
RTI - II File No. CIC/DMRCP/A/2018/116550-BJ
Date of RTI application 04.01.2018
CPIO's response Not on Record
Date of the First Appeal 11.01.2018
First Appellate Authority's response Not on Record
Date of diarised receipt of Appeal by the Commission 15.03.2018
Page 1 of 6
FACTS:
The Appellant vide his RTI application sought information on 02 points regarding the certified copies of movement of notice issued by Delhi Government against hike in fare of DMRC and the certified copy of Approval of Competent Authority and Government in the matter of fare hike, etc. Dissatisfied with the CPIO's response, the Appellant approached the FAA (not on the Commission's record). The reply of the CPIO/order of the FAA, if any, is not on the record of the Commission.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Rahul Rana;
Respondent: Mr. Ashu Sharma, General Manager/Fin (PIO - 4);
The Appellant reiterated the contents of the RTI application and stated that complete and satisfactory information had not been received by him. In reply to point 01 of his RTI application he categorically stated that he was aware of the correspondence of the Delhi Government with DMRC which was wrongly denied by the Respondent. He produced a copy of the said correspondence that he had obtained from the Delhi Government in this regard. In addition, he referred to the decision of the Commission in Case No. CIC/SS/C/2013/000308 dated October 21, 2013 in the matter of "Shri R. K. Jain Vs. Department of Legal Affairs and the Office of the Solicitor General of India" wherein in Para 13 of the said decision it was held as under:-
"13. The provisions of this section clearly define the duties to be performed by a CAPIO under the RTI Act i.e. i) to receive the RTI applications or appeals from citizens and ii) to forward the same to the officers/authority(s) appointed under the Act to deal with such applications/appeals. The law does not authorise the CAPIO/SAPIO to respond to RTI applications. This duty is specifically entrusted upon the CPIO/SPIO u/s 7(1) of the RTI Act which reads as follows:
"7. (1) Subject to the proviso to subsection (2) of section 5 or the proviso to subsection (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9:"
In reply, the Respondent maintained the response of the CPIO / FAA as also its written submission. During the hearing, when confronted with the need to give an affidavit in respect of Point No. 01 regarding non-availability of any correspondence with the Delhi Government, the DMRC representative retracted from his statement and tendered an unconditional apology by admitting neglect on the part of the concerned APIO. It was questioned by the Appellant consistently that in accordance with Section 7(1) of the RTI Act, 2005, the CPIO alone is responsible to answer the queries raised by the Appellants but in the Respondent Public Authority it was alleged that invariably the APIOs have been answering the RTI queries thereby defeating the purpose of furnishing information in the true spirit of the Law. The Respondent feigned ignorance of the same and assured to rectify the same.
Page 2 of 6The Commission was in receipt of a written submission from the Respondent dated 28.08.2019 (Appeal No. CIC/DMRCL/A/2018/612576/DMRCP-BJ), wherein while reiterating the reply of the CPIO/FAA, it was submitted that as per Section 34(1) of the Metro Railway (Operation and Maintenance) Act, 2002, the Central Government may, from time to time, constitute a Fare Fixation Committee for the purpose of recommending the fare for the carriage of passengers by the Metro Railway. Accordingly, the Ministry of Housing and Urban Affairs (MH&UA), erstwhile Ministry of Urban Development (MOUD), Government of India, vide its order dated 27.05.2016 constituted 4th Fare Fixation Committee (FFC) in exercise of the powers conferred under Sections 33 and 34 of the Metro Railway (Operation and Maintenance) Act, 2002 for the purpose of recommending fares to the Delhi Metro Railway Administration for carriage of passengers on the Delhi Metro network. Accordingly, the fares of Delhi Metro were revised as per the recommendations of 4th Fare Fixation Committee. In addition, it was informed that the recommendations of Fare Fixation Committee were binding on the metro railway administration under Section 37 of the Metro Railway (Operation and Maintenance) Act, 2002. Moreover, the report of 4th Fare Fixation Committee was available on DMRC website and was in public domain. Furthermore, it was informed that the information sought by the applicant being not available, could not be supplied. Therefore, the reply given by the PIO-4, to the applicant was as per the provisions of Act. In view of the above, it was submitted that the contention of the Appellant that information was denied or refused by PIO-4/DMRC was without any valid grounds.
Having heard both the parties at length and on perusal of the available records, the Commission observed that several pertinent issues regarding the casual and misleading replies provided by the Respondent Public Authority under signature of incompetent authority was raised by the Appellant which are in contravention to the provisions of the RTI Act, 2005. In the instant matter, the reply was provided by the APIO-4, vide letter dated 10.01.2018 who as per the provisions of the Act is not competent to furnish the information or to provide any reply on behalf of the CPIO. His duty is categorically spelt out in the Act as under:-
"5(2) Without prejudice to the provisions of sub-section (1), every public authority shall designate an officer, within one hundred days of the enactment of this Act, at each sub- divisional level or other sub-district level as a Central Assistant Public Information Officer or a State Assistant Public Information Officer, as the case may be, to receive the applications for information or appeals under this Act for forwarding the same forthwith to the Central Public Information Officer or the State Public Information Officer or senior officer specified under sub-section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be."
The Commission noted with concern that in the instant matter, a casual reply was given by the APIO- 4 stating that the sought information was not available under Section 2(f) of the RTI Act, 2005. It was also observed that the APIO is not the competent authority to respond to the RTI applications as per the Act. Thus, the Commission felt that the issues required a thorough examination by a competent authority.
The Commission referred to the definition of information u/s 2(f) of the RTI Act, 2005 which is reproduced below:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."Page 3 of 6
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
"(j) right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........"
In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:
35..... "It is also not required to provide 'advice' or 'opinion' to an applicant, nor required to obtain and furnish any 'opinion' or 'advice' to an applicant. The reference to 'opinion' or 'advice' in the definition of 'information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act."
Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. "....Under the RTI Act "information" is defined under Section 2(f) which provides:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."
7. "....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him."
The Commission felt that 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:
"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 Page 4 of 6 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, 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 appellate authority should be a speaking order giving justification for the decision arrived at. 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.
The Commission observed that there is complete negligence and laxity in the public authority in dealing with the RTI applications. It is abundantly clear that such matters are being ignored and set aside without application of mind which reflects disrespect towards the RTI Act, 2005 itself. The Commission expressed its displeasure on the casual and callous approach adopted by the respondent in responding to the RTI application. It was felt that the conduct of Respondent was against the spirit of the RTI Act, 2005 which was enacted to ensure greater transparency and effective access to the information.
Page 5 of 6DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the submissions made by the Respondent during the hearing demonstrating his acceptance to the neglect in furnishing an appropriate reply, the Commission directs the Managing Director, DMRC to get this matter enquired into by an appropriate officer and to initiate disciplinary action against the concerned CPIO for dereliction of his duties and responsibilities in contravention of the provisions of the RTI Act, 2005. Action taken in the matter be reported to the Appellant with a copy endorsed to the Commission within a period of 30 days from the date of receipt of this order.
The Commission also instructs the Respondent Public Authority to convene periodic conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities.
The Appeals stand 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: 15.10.2019
Copy to:
1. Dr. Mangu Singh, Managing Director, Delhi Metro Rail Corporation Ltd., Metro Bhawan, Fire Brigade Lane, Barakhamba Road, New Delhi - 110001 Page 6 of 6