Central Information Commission
Pranati Tikadar vs Border Security Force on 28 April, 2021
केन्द्रीयसूचनाआयोग
Central Information Commission
बाबागंगनाथमागग , मुननरका
Baba Gangnath Marg, Munirka
नईनिल्ली, New Delhi - 110067
द्वितीय अपील संख्या / Second Appeal No. CIC/BDRSF/A/2019/644473
Smt. Pranati Tikadar, ... अपीलकताा /Appellant
VERSUS/बनाम
PIO, ...प्रद्वतवादीगण /Respondent
DIG, PSO & CPIO Frontier HQ,
Border Security Force,
South Bengal, 2-B,
Lord Sinha Road,
Kolkata - 71
Date of Hearing : 05.05.2020, 27.04.2021
Date of Decision (Interim) : 05.05.2020
Date of Decision (Final) : 28.04.2021
Information Commissioner : Shri Y. K. Sinha
Relevant facts emerging from appeal:
RTI application filed on : 25.06.2018
PIO replied on : 03.04.2019
First Appeal filed on : 18.08.2018
First Appellate Order on : 05.04.2019
2ndAppeal/complaint received on : Undated
ORDER
The captioned appeal emanates from RTI application dated 25.06.2018 whereby the Appellant has sought information pertaining to a project of construction of buildings and its guard wall on the INDO-BANGLADESH BORDER ROAD (IBBR) and on the land along both sides of IBBR under Mahakhola Mauza, P.O-Mahakhola, P.S-Bhimpur, Dist-Nadia, West Bengal. She alleged that this project creates many problems to the common people as it closes the only way of the residential house of some poor villagers to the public road and also the BSF as well as the villagers use the said road. In this regard, she sought the following information:
1. Please furnish an authenticated copy of the site plan and that of the building plan.
2. Mention the relevant authorities who are responsible for construction of the project on the IBBR Road.
3. Whether the authority has obtained necessary permission of the Gram Panchayat for construction of the project. If yes, please furnish an authenticated copy of the said permission and a copy of the application submitted for the permission.
4. Mention the plot numbers of land on which the construction of project is going on.
5. Whether the competent authority has applied for conversion of land of the road used by the BSF as well as the common people for the purpose of construction of the project on the road. If yes, please furnish a copy of application submitted for conversion of land of road.
6. Whether the Government of West Bengal has approved the conversion of Road to buildings. If yes, please furnish the relevant documents in support of conversion of road to buildings.
7. Whether the Ministry of Home Affairs, Govt. of India, has approved duly the ongoing project on the IBB Road. If yes, please furnish a copy of the approval Memo or the G.O.
8. Mention the total project cost and the amount of fund utilized so far.
9. Whether any Tender Notice was duly issued by the competent authority. Furnish a tender Notice.
10. Mention the plot of Land on which the Madhupur B.O.P is situated and mention the Mauza under which the Madhupur B.O.P is actually situated. Whether this B.O.P has necessary approval of the Government. If yes, please furnish a copy of the G.O. for approval.
Since no response was received from the PIO, Appellant filed a First Appeal on 18.08.2018.
The Respondent PIO vide his reply dated 03.04.2019 had declined to furnish information citing exemption under Section 24 of the RTI Act. The First Appellate Authority vide his order dated 05.04.2019 upheld the decision of the PIO.
Being aggrieved as dissatisfied, the Appellant approached the Commission in the instant Second Appeal.
The foremost contentious point which thus arises is of the maintainability of the present appeal. Section 24(1) of the RTI Act, 2005 lays that:
24. Act not to apply to certain organizations.-
(1) Nothing contained in this Act shall apply to the intelligence and security organizations specified in the Second Schedule, being organizations established by the Central Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Provided further that in the case of information sought for is in respect of allegations of violation of human rights, the information shall only be provided after the approval of the Central Information Commission, and notwithstanding anything contained in Section 7, such information shall be provided within forty-five days from the date of the receipt of request.
The Respondent public authority is enlisted in Second Schedule of the RTI Act and as such, exempt from provisions of this Act. The only exception carved out to the rule is wherein information sought relates to allegations of corruption/human rights violations and approval to disclosure is accorded by this Commission.
Thus, the present RTI request must satisfy two conditions. Firstly, the information sought must relate to allegations of corruption / human rights violations and the same must not be barred under various exemptions under Section 8 of the RTI Act.
Proceedings during the hearing:
Commission is in receipt of a written submission of the Appellant dated
02.05.2020, which has been reproduced as under:
1) It is too hard to attend the venue of hearing as mentioned in the Notice on account of lockdown for pandemic corona virus and I have seen the Notice on 01.05.2020 on the website of the CIC, any notice has not reached me till date. Though one office asked me via mobile No. ******3820 at 11.48 a.m. on 27.4.2020 in Hindi whether I had filled an RTI application to the B.S.F. and he informed me that an audio hearing will be held after 11.30 a.m. on 05.05.2020. I requested him to send the instruction via my e-mail or by post. I thought that the hearing is related to another RTI Application vide No. MHOME/R/E/20/01647 & No. MHOME/A/E/20/00345 to Ministry of Home Affairs. Hence, I pray for condonation of delay and this humble written submission is being placed for kind consideration of the Hon'ble Commission.
2) The Public Authority has denied supplying the information mentioning that the BSF is an organisation listed at Serial No. 9 of the Second Schedule as per Section 24(1) of RTI Act, 2005, but the organization specified in the Second Scheduled shall not be exempted from providing information pertaining to allegation of corruption and violation of Human Rights as per subsection (1) of section 24 of the RTI Act. The information sought for in the instant case is certainly pertaining to gross violation of human rights of the villagers and irregularities, corruption, because of the following facts:
i) Irrationally, illegally, causing disturbance to the local citizens;
the C.P.W.D and the B.S.F with the head of Ms. Sumana Biswas, pradhan of Maheshpur Gram Panchayat are constructing some buildings (B.O.P.) for B.S.F and high guard wall just on the Indo-Bangladesh Border Road (IBBR) (not beside the IBBR) in a predominantly residential area. They closed completely the area of 350 mtr of the IBBR at Village:Mahakhola, P.S-Bhimpur, Dist: Nadia, W.B. and started construction on that area, without conversion of land (conversion of the Road to bastu for building), necessary permission from Panchayet violating 'West Bengal Panchayat (Gram Panchayet Administration) Rules, 2004 and W.B. Land Reforms Act. The road constructed using a large amount of public fund has played an important role not only for development of the security of our country but also for economic progress of the remote border area. Then Prime Minister Smt. Indira Gandhi and Finance Minister Sri Pranab Mukherjee announced at inaugural meeting at Ranabandh in Nadia that the road would play an important role for security of our country as well as for development of transport facility to the local people, their life style and the economic condition of border area. Actually, the common people use the road all the year round for transportation of their agricultural products and various purposed since inception of the road. The common people are being deprived of using the road and their easement right for ever. Six poor Schedule caste families are being deprived of their Fundamental Rights to move freely and free and fresh air and sunlight essential for life as their only entrance/way from their house to the public road has been closed due to construction high guard wall; the poor families having no money to purchase another plot of land for residential house are passing the days in severe anxiety.
ii) They have set up a shed/hut for Madhupur B.O.P. at village:Mahakhola under Mahakhola Mouza instead of Madhupur village or Mauza, violating normal distance norms between the two B.O.P.s. They should construct the B.O.P. in another suitable place purchasing land from the public observing all the existing rules including rule minimum distance between the two B.O.P., without destroying this valuable road.
iii) Mentioning various problems created due to construction, they (villagers) submitted mass-petition/complaint to the District Magistrate, Nadia, the S.P., Nadia, the Home Secretary, W.B., The Hon'ble Prime Minister and the Hon'ble C.M., W.B., National Human Rights Commission (Diary No. 182991 dated 21.05.2018; Diary No. 126525/CR/2018, Case No. 1154/25/14/2018 and soon) praying immediate stoppage of construction.
iv) Attaching a copy of mass-petition dated 21.12.2016 submitted to the D.M., Nadia, I lodged a complaint to the National Human Rights Commission via e-mail on 20.05.2018 and the NHRC directed the Chief Secretary, W.B. for taking necessary action within 8 weeks vide letter bearing Case No. 1492/25/14/2018 dated: 12.10.2018/25.10.2018 and the Secretary, C.P.W.D., Nirman Bhawan, New Delhi.
v) Subsequently, the Dy. S.P. (HQ), Nadia, the higher authority of C.P.W.D., District Administration, State Administration & B.S.F. visited the spot several times to investigate the matter and discussed with the common people.
3) After submission of mass-petition/complaint and agitation/protest by the common people, the C.P.W.D. left the spot with their all equipments, leaving the project incomplete about two years ago. On 08.08.2019, the villagers has submitted another mass petition for demolition of the guard wall to the D.M., Nadia.
4) On 16.10.2019, the Hon'ble Inspector General of B.S.F. held a meeting with the villagers and elected Member Smt. Jharna Biswas. At the end of the meeting, it is decided that the project will be shifted to a suitable place and the IG, BSF, requested verbally to find out an alternate suitable place for construction of the project. Accordingly, three spots for construction of the Project have been proposed by the villagers and Member.
5) Certificate dated: 02.05.2020 of Smt. Jharna Biswas, an elected Member on her official pad is attached herewith for kind perusal and consideration and justification.
6) Objectives of the RTI Act are to promote transparency and accountability in the working of every public authority of our Democratic Welfare State.
It may be presumed from the points stated above, that was a gross violation of Human Rights, irregularities, corruption and the Public Authority shall not be exempted from providing information according to Section 24(1) of the RTI Act. Hence, I have the right to get the information as applied for.
Under the circumstances, I pray for passing an order considering the above points and available documents submitted with the 1st appeal and the 2nd appeal. I have sent this written submission to the CPIO & the FAA, via e-mail: [email protected] today (02.05.2020)".
Due to nation-wide lockdown being observed, to prevent the spread of the pandemic of COVID-19, hearings are being conducted through audio conference.
Shri Ardhendu Tikadar, husband and representative of the Appellant participated in the hearing on being contacted on his telephone number and he stated that he is not satisfied with the denial of the information under Section 24 of the RTI Act. He further stated that the subject-matter of the instant RTI Application relates to human rights violation of the aforesaid villagers and hence he is entitled to get information.
Interim Decision:
The facts of the case indicate that the information sought by the Appellant deals with human rights violation of the averred villagers, which fall within the exception provided under Section 24 of the RTI Act, wherein the Commission can exercise its adjudication under the RTI Act. However, in order to arrive at a decision, it is imperative that the Respondent is heard at length on the allegations levelled by the Appellant.
Hence, the Commission is of the considered opinion that the instant appeal needs to be re-scheduled and appropriate notice be sent to the concerned Respondent i.e., PIO/DIG, PSO & PIO Frontier HQ, Border Security Force for hearing on a later date.
Appeal may be re-scheduled for hearing after the lockdown is lifted.
Facts emerging in Course of Hearing on 27.04.2021:
A written submission has been received from the Appellant vide email dated 26.04.2021wherein she stated that although her husband Shri Ardendu Tikadar was detected Covid Positive, she is not requesting for adjournment of the matter and that her husband may also participate in the hearing if his health permits.
She also referred to their earlier written submission dated 05.05.2020 and stated that in case they are not in a position to appear for the hearing, the documents relating to the last hearing may be considered for the final order.
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, hearings through video conference were scheduled after giving prior notice to both the parties. Later, the hearings were held in audio conference mode after informing both the parties, in view of the rapid increase in Covid-19 infections.
The Appellant's representative Shri Ardhendu Tikadar participated in the hearing through audio conference. While praying for disclosure of information, he referred to the written submission produced before the Commission during the last hearing and stated that the BSF alongwith the CPWD was causing harassment to the local residents by illegally constructing BoP on the Indo Bangladesh Border Road thereby depriving several residents access to the road and their usage right over the same.
The Respondent represented by Shri P.K. Anand, DIG participated in the hearing through audio conference. Explaining the background of the matter, he stated that the land was acquired by the CPWD on direction of MHA after following the land acquisition regulations and paying compensation to the displaced persons. The BoP was constructed in the national interest from a safety and security point of view in order to protect a sensitive border area grappling with issues of smuggling. He further stated that no illegal construction/ encroachment was done at any stage and the BoP was constructed on the land which was already acquired by Govt. It was also stated that for ease of movement two gates were constructed for residents and a panchayat road also existed for movement of vehicles. Moreover, underground drains for drainage of water were also constructed.
Decision:
Having heard both the parties and on perusal of the available records and in the light of the fact that the information was initially denied to the Appellant u/s 24 r/w the Second Schedule of the RTI Act, 2005, the Commission directs Shri P.K. Anand, DIG to provide a self explanatory response to the Appellant taking into consideration the oral submissions made by him during the hearing. The above direction should be complied with by 30.05.2021 under intimation to the Commission.
With the above direction, the instant Second Appeal stands disposed off accordingly.
Y. K. Sinha (वाई. के. नसन्हा) Chief Information Commissioner (मुख्य सूचना आयुक्त) Authenticated true copy (अभिप्रमाणित सत्यापित प्रतत) S. K. Chitkara (एस. के. चिटकारा) Dy. Registrar (उि-िंजीयक) 011-26186535