Central Information Commission
Shailender Mongia vs Delhi Development Authority on 30 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/2018/624304-BJ
Mr. Shailender Mongia
....अपीलकता/Appellant
VERSUS
बनाम
CPIO
PIO & Assistant Director (Coord.) LD
Delhi Development Authority
Room No. 6, A-Block, Vikas Sadan, INA
New Delhi - 110023
... ितवादीगण /Respondent
Date of Hearing : 26.12.2019
Date of Decision : 30.12.2019
Date of RTI application 19.03.2018
CPIO's response Not on Record
Date of the First Appeal Nil
First Appellate Authority's response Not on Record
Date of diarised receipt of Appeal by the Commission Nil
ORDER
FACTS:
The Appellant vide his RTI application sought information on 05 points pertaining to Residential Development at Subhash Nagar, Delhi, a project of DMRC on plot of land given on lease by DDA, reasons for non-completion of the said project; date-wise steps taken by DDA to address the issues of the said project, 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.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Shailender Mongia;
Respondent: Mr. Dharmesh Kumar Garg, ASO;Page 1 of 6
The Appellant reiterated the contents of the RTI application and stated that the CPIO/FAA had not responded the RTI application/Appeal within the stipulated time frame as prescribed under the RTI Act, 2005 and therefore, penal action against the erring CPIO should be initiated as per the provisions of the RTI Act. In its reply, the Respondent informed that the instant RTI application/Appeal was not received by them in their Section and only on receipt of notice of hearing they become aware about the matter and an updated response was provided to the Appellant vide letter dated 17.12.2019 receipt of which was acknowledged by the Appellant. The Respondent further submitted that another RTI application dated 19.03.2019 on a similar subject- matter had already been provided vide letter dated 10.05.2019. The Appellant while acknowledging the above replies stated that timely response was not provided by the CPIO/FAA. On perusal of the records, it was evident that no reply had been furnished to the Appellant in the instant matter thus disrespecting the spirit of the RTI Act, 2005.
Attention of the Appellant was also drawn towards the letter written to the Commission by the Vice Chairman, DDA dated 13.12.2019 in reference to the decisions of the Commission in a few 2nd Appeal cases concerning different Wings of DDA, where the Commission had expressed its dissatisfaction on handling RTI applications and advised him to review the whole mechanism dealing with the RTI applications and evolve a robust and effective system of replying to such applications within the stipulated time frame, as per the provisions of the RTI Act, 2005. In reference to the decisions passed by the Commission, the Vice Chairman, DDA, had reviewed the pendency and directed all Heads of Departments to sensitize all PIOs/FAAs that the RTI applications/1st Appeals should be attended to seriously and accurate and timely responses sent to the Applicants by adhering to the time schedule as stipulated in the RTI Act.
The Commission was in receipt of a written submission from the Respondent dated 17.12.2019 addressed to the Appellant wherein it was informed that the reply to one of the RTI application dated 19.03.2019 on the subject had already been provided to him vide their letter dated 10.05.2019 wherein it was informed that "the Competent Authority has ready to issue the modified NOC for land measuring 6445 Sqm at Subhash Nagar subject to payment of UEI Charges. DMRC is also agreed to pay UEI charges. The matter of calculation of UEI charges is under process in Finance Department of DDA". A copy of the same was enclosed for the Appellant's ready reference. Furthermore, it was submitted that for the photo copies of the required documents, the Appellant could visit their office to inspect the file and after depositing the requisite fee, he could get the same.
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 time limits have been prescribed, in absolute terms, as well as Page 2 of 6 penalty provisions. These are meant to ensure a culture of information disclosure so necessary for a robust and functioning democracy."
The Commission observed that it is the duty of the CPIO to provide clear, cogent and pointed reply to the information seeker. In this context, a reference can be made to the judgment 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."
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.
Furthermore, the Commission also referred to the OM No. 1/32/2007-IR dated 14.11.2007 wherein while prescribing for creation of a nodal authority for dealing with RTI applications, it was stated as under:
"It is, therefore, requested that all public authorities with more than one PIO should create a central point within the organization where all the RTI applications and the appeals addressed to the First Appellate Authorities may be received. An officer should be made responsible to ensure that all the RTI applications/ appeals received at the central point are sent to the concerned Public Information Officers/ Appellate Authorities, on the same day. For instance, the RTI applications/ appeals may be received in the Receipt and Issue Section/ Central Registry Section of the Ministry/ Department/ Organization/ Agency and distributed to the concerned PIOs/ Appellate Authorities. The R&I/CR Section may maintain a separate register for the purpose.Page 3 of 6
The Officer-in-charge/ Branch Officer of the Section may ensure that the applications/ appeals received are distributed the same day."
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.
With regard to the imposition of penalty on the CPIO/PIO under Section 20 of the RTI Act, 2005, the Commission took note of the ruling of Hon'ble Delhi High Court in W.P.(C) 11271/2009 Registrar of Companies & Ors v. Dharmendra Kumar Garg & Anr. (delivered on:
01.06.2012) wherein it was held:
" 61. Even if it were to be assumed for the sake of argument, that the view taken by the learned Central Information Commissioner in the impugned order was correct, and that the PIOs were obliged to provide the information, which was otherwise retrievable by the querist by resort to Section 610 of the Companies Act, it could not be said that the information had been withheld malafide or deliberately without any reasonable cause. It can happen that the PIO may genuinely and bonafidely entertain the belief and hold the view that the information sought by the querist cannot be provided for one or the other reasons. Merely because the CIC eventually finds that the view taken by the PIO was not correct, it cannot automatically lead to issuance of a showcause notice under Section 20 of the RTI Act and the imposition of penalty. The legislature has cautiously provided that only in cases of malafides or unreasonable conduct, i.e., where the PIO, without reasonable cause refuses to receive the application, or provide the information, or knowingly gives incorrect, incomplete or misleading information or destroys the information, that the personal penalty on the PIO can be imposed. This was certainly not one such case. If the CIC starts imposing penalty on the PIOs in every other case, without any justification, it would instill a sense of constant apprehension in those functioning as PIOs in the public authorities, and would put undue pressure on them. They would not be able to ful fill their statutory duties under the RTI Act with an independent mind and with objectivity. Such consequences would not auger well for the future development and growth of the regime that the RTI Act seeks to bring in, and may lead to skewed and imbalanced decisions by the PIOs Appellate Authorities and the CIC. It may even lead to unreasonable and absurd orders and bring the institutions created by the RTI Act in disrepute."
Similarly, the following observation of the Hon'ble Delhi High Court in Bhagat Singh v. CIC & Ors. WP(C) 3114/2007 are pertinent in this matter:
"17. This Court takes a serious note of the two year delay in releasing information, the lack of adequate reasoning in the orders of the Public Information Officer and the Appellate Authority and the lack of application of mind in relation to the nature of information sought. The materials on record clearly show the lackadaisical approach of the second and third respondent in releasing the information sought. However, the Petitioner has not been able to demonstrate that they malafidely denied the information Page 4 of 6 sought. Therefore, a direction to the Central Information Commission to initiate action under Section 20 of the Act, cannot be issued."
Furthermore, the High Court of Delhi in the decision of Col. Rajendra Singh v. Central Information Commission and Anr. WP (C) 5469 of 2008 dated 20.03.2009 had held as under:
"Section 20, no doubt empowers the CIC to take penal action and direct payment of such compensation or penalty as is warranted. Yet the Commission has to be satisfied that the delay occurred was without reasonable cause or the request was denied malafidely.
......The preceding discussion shows that at least in the opinion of this Court, there are no allegations to establish that the information was withheld malafide or unduly delayed so as to lead to an inference that petitioner was responsible for unreasonably withholding it."
The Appellant could not substantiate his claims regarding malafide denial of information by the Respondent or for withholding it without any reasonable cause. The Commission noted that a similar subject matter had already been heard and decided by it in Appeal no.: CIC/MOHUA/A/2018/634018/01956 File no.: CIC/MOHUA/A/2018/634018 dated 24/10/2019.
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission expressed its deep displeasure over the poor handling of the RTI matters in the public authority ignoring the spirit of the law. The Commission therefore, cautions the CPIO / FAA to exercise due diligence in responding to the RTI applications / First Appeals in a timely manner failing which penal action under Section 20 (1) of the RTI Act, 2005 could be initiated.
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: 30.12.2019 Page 5 of 6 Copy to:
1. Vice Chairman, DDA, A-Block, 1st Floor, Vikas Sadan, INA, New Delhi - 110023
2. Mr. Subu R., Commissioner (Land Disposal), DDA, "A" Block, 1st Floor, Vikas Sadan, INA, New Delhi 110023 Page 6 of 6