Central Information Commission
Vishal Agarwal vs Delhi Development Authority on 9 December, 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.:- CIC/DDATY/A/2018/131041-BJ
Mr. Vishal Agarwal
....अपीलकता/Appellant
VERSUS
बनाम
1. CPIO
Executive Engineer (P)
Civil Circle-3, DDA, Vikas Minar
New Delhi - 110002
2. CPIO
Dy. Director (LM), East Zone
DDA, DDA Office, Vikas Kutter
Barack No. 6, I.T.O.
New Delhi- 110002
... ितवादीगण /Respondent
Date of Hearing : 05.12.2019
Date of Decision : 09.12.2019
Date of RTI application 03.09.2017
CPIO's response 04.09.2017
Date of the First Appeal 13.11.2017
First Appellate Authority's response 14.11.2017
Date of diarised receipt of Appeal by the Commission 16.05.2018
ORDER
FACTS:
The Appellant vide his RTI application sought information on 08 points inter alia regarding the area of New Ashok Nagar which came under the jurisdiction of DDA, status of demolition of Plot no. B- 10, B-9, B-8, B-7, B-6 etc, if these constructions fell in the Right of Way as mentioned in Master Plan of DDA, 2021, etc. Dissatisfied due to non-receipt of any response from the CPIO, the Appellant approached the FAA. The reply of the CPIO/ order of the FAA, if any, is not on the record of the Commission. However, the Appellant enclosed a copy of email dated 27.04.2018 sent by the AD/ RTI wherein it was informed that the RTI Application had forwarded to Asstt. Director (IL), Dy. Director (LM) East Page 1 of 6 Zone vide letter dated 04.09.2017 and the First Appeal is also forwarded to Dy. Director (IL)/ FAA, DDA on 14.11.17.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Absent;
Respondent: Mr. Kumar Sonu, Naib Tehsildar (LM) & APIO and Mr. S. N. Tripathi, KANOONGO, Mr. Subhash Chand, Executive Engineer & CPIO;
The Appellant remained absent during the hearing. The Respondent (LM) at the outset tendered their unconditional apology for not responding to the RTI application and stated that due to technical glitches in the online RTI mechanism the RTI application/ First Appeal could not be responded timely. However, the Respondent (LM) stated that subsequent to the receipt of the notice of hearing from the Commission, they had sent a point wise response dated 04.12.2019 to the Appellant a copy of which was also produced before the Commission during the hearing. On perusal of the response, the Commission observed that for points 03 to 08 pertaining to steps to remove encroachment/ construction for the proposed 45 M road at the location mentioned in the RTI application, etc the Respondent did not provide a clear and cogent response to the Appellant and only replied that the information sought cannot be provided under the provisions of the RTI Act, 2005. The Respondent (EE) (CC-3) present during the hearing stated that the RTI application was sent to them by the EE (P) and PIO, CC-10, DDA vide letter dated 20.08.2018. Thereafter, vide their letters dated 24.08.2018, they had transferred the instant RTI application to the DD (LM), East Zone, DDA and EE (ED-12), DDA to take further necessary action in the matter. Similarly, the First Appeal was also forwarded to the DD (LM), DDA. Thus, since the subject matter of the information sought did not pertain to their Division, they had no further role in the matter. Furthermore, vide their correspondence dated 27.11.2019 they had also intimated the Executive Engineer, ED-12, DDA and Dy. Director (LM), EZ, DDA to appear for the instant hearing. On being queried by the Commission regarding the receipt of the application from the CC-3 Division, the Respondent (LM) feigned ignorance.
Having heard both the parties and on perusal of the available records, the Commission at the outset observed that the RTI application shuffled from one department to another and was not responded timely. Moreover, as submitted by the Respondent CC-3, DDA, the RTI application/ First Appeal was transferred to the Dy. Director (LM), EZ vide letters dated 24.08.2018/ 15.10.2018. The Respondent (LM) also admitted during the hearing that the instant matter pertained to their jurisdiction and that a time bound response was not provided to the Appellant. The Commission observed that the RTI Act, 2005 stipulates time limits in its various provisions relating to responding to RTI Applications, transfer of applications, filing and disposing of first appeal to ensure that a culture of information dissemination is strengthened so that a robust functioning of the democracy gets established. This was recognised by the Hon'ble High Court of Delhi in Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April, 2009) wherein it was 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 Page 2 of 6 filibustering tactics of the public authorities or their officers. It is to ensure these ends that 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."
Furthermore, the provisions of the RTI Act, 2005 and various judgments on the subject matter clearly establishes that it is the duty of the CPIO to provide clear, cogent and precise response to the information seekers. Section 7 (8) (i) of the RTI Act, 2005 also states that where a request for disclosure of information is rejected, the CPIO shall communicate the reasons for such rejection. The Hon'ble Delhi High Court in the matter of J P Aggarwal v. Union of India (WP (C) no. 7232/2009 clearly stated that the PIO acts as the Pivot for enforcing the implementation of the Act. The relevant extracts of the decision are as under:
" 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."
Furthermore, 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 ".....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, 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 also noted that it should be the endeavour of the CPIO to ensure that maximum assistance should be provided to the RTI applicants to ensure the flow of information. In this context, the Commission referred to the OM No.4/9/2008-IR dated 24.06.2008 issued by the DoP&T on the Subject "Courteous behavior with the persons seeking information under the RTI Act, 2005" wherein it was stated as under:
"The undersigned is directed to say that the responsibility of a public authority and its public information officers (PIO) is not confined to furnish information but also to provide necessary help to the information seeker, wherever necessary."
The Commission however felt that there was an urgent need to develop a robust system of record keeping in the Respondent Public Authority and to review its efficaciousness periodically. In this Page 3 of 6 context, a reference was made to the decision of the Hon'ble High Court of Bombay in the matter of Union of India v. Vishwas Bhamburkar, W.P.(C) 3660/2012 dated 13.09.2013 wherein the Court had in a matter where inquiry was ordered by the Commission observed as under:
"6............It is not uncommon in the government departments to evade disclosure of the information taking the standard plea that the information sought by the applicant is not available. Ordinarily, the information which at some point of time or the other was available in the records of the government, should continue to be available with the concerned department unless it has been destroyed in accordance with the rules framed by that department for destruction of old record. Therefore, whenever an information is sought and it is not readily available, a thorough attempt needs to be made to search and locate the information wherever it may be available. It is only in a case where despite a thorough search and inquiry made by the responsible officer, it is concluded that the information sought by the applicant cannot be traced or was never available with the government or has been destroyed in accordance with the rules of the concerned department that the CPIO/PIO would be justified in expressing his inability to provide the desired information. Even in the case where it is found that the desired information though available in the record of the government at some point of time, cannot be traced despite best efforts made in this regard, the department concerned must necessarily fix the responsibility for the loss of the record and take appropriate departmental action against the officers/officials responsible for loss of the record. Unless such a course of action is adopted, it would be possible for any department/office, to deny the information which otherwise is not exempted from disclosure, wherever the said department/office finds it inconvenient to bring such information into public domain, and that in turn, would necessarily defeat the very objective behind enactment of the Right to Information Act."
The Hon'ble High Court of Gujarat in the matter of Chandravadan Dhruv vs. State of Gujarat and Ors, Special Civil Application No. 2398 of 2013 dated 21.12.2013 held as under:
"24. Since the issue raised by the petitioner is of a vital public importance, we, on our own, made a little research on the subject and found that the Department of Personnel and Training of the Government of India has constituted a Task Force for the effective implementation of Section 4 of the RTI Act. As a part of this Task Force, IT for Change is facilitating a sub group on 'Guidelines for Digital Publication under RTI supporting Proactive Disclosure of Information'. As a part of the work of this sub-group a one day consultation was held on the said subject i.e. 'Formulating guidelines for digital publication under RTI supporting proactive disclosure of information' in Bengaluru. 25.3 How to ensure proper record keeping?
• The required level of proactive disclosure is not possible without appropriate record keeping, and this aspect needs focused attention. There are detailed rules for record keeping and they should be strictly followed and the scheme for it should be published. Record keeping practices may have to be reviewed from the point of view of comprehensive proactive disclosure requirements, especially through digital means.
• Section 4.1.a is very clear about the need for proper record keeping, inducing in digital and networked form. Funds should be earmarked for digitizing records. Complete details of all records that are maintained and available digitally, and about those which are not, with due justification thereof, should be published. Annual reports on compliance with section 4.1.a should be sought by the Information Commissions.
• The costs involved in digitizing resources and maintaining networked computer based record-keeping and information systems is often cited as a major deterrent. It was felt that it is no longer a major issue. India is at par or better in terms of IT issues than many developed Page 4 of 6 countries that maintain high standards of digital publishing of public information. The real cost is in terms human resources, including skills, and these are easily available at all levels in India today.
• An example was given about how a government office in Bangalore was able to scan all its documents at a very low cost. Another example that was discussed was of 'Bhoomi' project in Karnataka, whereby, it was contended that, if open public access to such complex spatial data as the land records of the entire state can be ensured, how can giving access to all textual documents of an office or department be any more difficult."
Furthermore, in several other matters decided by the Commission recently in Appeal No CIC/DDATY/A/2018/123566-BJ dated 04.11.2019; CIC/DDATY/A/2018/117958-BJ dated 13.09.2019, the Respondent Public Authority officials were instructed to re-examine the record keeping mechanism in vogue. The Appellant was not present to contest the submissions of the Respondent or to substantiate his claims further.
DECISION:
Keeping in view the facts of the case and the submissions made by the Respondent and in the light of the decisions cited above as also the perceptible delay in responding to the RTI application, the Commission directs the Pr. Commissioner (LM), DDA to inquire into the matter and fix accountability and responsibility on the delinquent officer and submit its report within a period of 30 days from the date of receipt of this order under intimation to the Appellant and the Commission. The Commission also instructs the CPIO (LM) to re-examine the response provided to the Appellant vide letter dated 04.12.2019 and provide a clear, cogent and precise response on points 03 to 08 to the Appellant within a period of 15 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 Appeal stands 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: 09.12.2019
Page 5 of 6
Copy to:
1. The Lieutenant Governor, Delhi, 6, Raj Niwas Marg, Ludlow Castle, Civil Lines, Delhi 110054 (for information)
2. The Vice Chairman, DDA, A-Block, 1st Floor, Vikas Sadan, INA, New Delhi - 110023
3. Mr. Manish Gupta, Pr. Commissioner (LM), DDA, East Zone, DDA, DDA Office, Vikas Kutter Barack No. 6, I.T.O., New Delhi- 110002 Page 6 of 6