Central Information Commission
Dr. Raja Muzaffar Bhat vs Border Security Force on 2 July, 2010
CENTRAL INFORMATION COMMISSION
Complaint No. CIC/WB/C/2010/000155 dated 3-10-2009
Right to Information Act 2005 - Section 18
Appellant: Dr. Raja Muzaffar Bhat
Respondent: Border Security Force (BSF)
Heard & Decision announced 02.07.'10
FACTS
This Commission has received a complaint by e-mail from Dr. Raja Muzaffar Bhat of Chadoora, District Budgam, Jammu & Kashmir stating that he has moved an application before the Border Security Force in June 2007 seeking information regarding the suspected disappearance in police custody of one Mohammad Ashraf Yatoo of Badipora, Chadoora. In support of this he has submitted a cutting from the newspaper Greater Kashmir of 2.7.2007 stating as follows:-
"For the first time in Kashmir an application has been moved under Right to Information Act (RTI) seeking details of the disappeared youth some 17 years back.
Mohammad Ashraf Yatoo of Badipora Chadoora in Budgam District went missing after he was arrested by paramilitary personnel in December 1990 during a crackdown.' Upon not receiving any further reply and after learning of the provisions of section 24 (1) of the RTI Act Dr. Raja Muzaffar Bhat has moved a complaint before us on 6.4.2010 as follows:
"I believe the BSF's actions constitute a failure to adhere to the provisions and spirit of the Central RTI Act, 2005. I am, therefore, filing this complaint with CIC under sections 18 (1) © and 18 (1) (f) of the CRTI Act. I am also seeking that the original RTI application filed by Mr. Yatoo's family be finally fulfilled. I request that any responses be sent both to the family as well as to myself."
In his response to the complaint notice Shri M. Tripathi, DIG, Personnel, BSF Hqrs has in his letter of 16.6.2010 agreed that an application of 26.7.2007 had indeed been received from Dr. Raja Muzaffar Bhat. On the disposal of this case he has submitted as follows:-
"Since the case pertained to Srinagar (J &K), Dr. Bhat was informed vide HQ, DG, BSF letter No. BSF/Sec/W-1
47/2007/1404-05 dated 3rd August, 2010 to contact IG, BSF Srinagar in this regard. An Indian Postal Order No. 4JE 878002 dated 15th June, 2007 for Rs. 10/- which had been enclosed with his application was returned to him.
However in response to your fax message under reference Frontier HQ, BSF, Srinagar was asked to provide further information in this regard. Frontier HQ has informed that no record is available as to whether he visited Frontier HQ BSF Srinagar or met any concerned officer of Frontier HQ BSF Srinagar"
The appeal was heard through videoconference on 2-7-2010. The following are present.
Respondents at CIC chambers Shri M. Tripathi, DIG, BSF &CPIO.
Shri Eappen P. V. DIG, BSF.
Respondent at NIC Studio, Srinagar Shri Shabbir Ahmad Alvi, DIG Although arrangement had been made for videoconference at NIC Studio Budgam, because of curfew in Kashmir Valley Dr. Raja Muzaffar Bhat was unable to be present, but was heard on telephone at his number-01951-257199.
Complainant Dr. Raja Muzaffar Bhat submitted that on 13.12.1990 the 80 Battalion of BSF stationed in Pulwama arrived in Badipora District Budgam and arrested five persons of whom Mohammad Ashraf Yatoo was one. Three persons were released after fifteen days and one after one month. However, nothing further has been heard regarding Shri Yatoo who was working as a Storekeeper in the Food & Supply Department at the time of his detention thereafter. Dr. Raja Muzaffar Bhat submitted that all these details have been provided in his application of June.2007 to the CPIO BSF.
Shri Shabbir Ahmad Alvi, DIG & PSO, Frontier Headquarters, BSF Srinagar submitted that his unit received the application of Dr. Raja Muzaffar Bhat on 1st August 2007 through BSF Hqrs. On verification of the record it was found that although 80 battalion, BSF was indeed posted in Pulwama on 13.12.1990, the battalion was at the time of receipt of the application located in Punjab. The request of Dr. Raja Muzaffar Bhat was, therefore, faxed to the 80 battalion, BSF on 9th August to which a reply was also received within 2 three days indicating that the incident was stated to have occurred on 13.12.1990 but all records of that period had been weeded out by 11 th May, 2001. He also submitted that there was no record of any visit by Dr. Raja Muzaffar Bhat although from the record it appears that an appointment had been fixed with the Commandant. It was not known however whether such meeting took place. The Frontier Hqrs., BSF has also no record regarding the FIR which stated by complainant to have been lodged with the PS Chadoora in this case, or the progress in investigation.
Shri Eappen P. V. DIG, BSF, Hqrs also submitted that if the details of the FIR, which were not available with complainant during the hearing, are provided to the BSF, it may assist them in tracing any surviving records regarding Mohammad Ashraf Yatoo.
DECISION NOTICE The BSF is indeed an organisation listed at Sl. No. 9 of the Second Schedule of the RTI Act thus bringing it within the ambit of section 24 sub-section (1) of the Act. Nevertheless it is conceded by all parties that in the present case the request is an allegation of disappearance in custody of a civilian working in a government Department in the State of Jammu & Kashmir, and therefore amounts to an allegation of human rights violation, which makes the BSF answerable. This being the case, however it was not for BSF Hqrs to return the fee paid by complainant Dr. Raja Muzaffar Bhat and ask him to contact Frontier Hqrs, BSF which, allegedly not having been contacted has failed to provide any information to complainant. In the normal course the BSF Hqrs. should have taken recourse section 6 (3) (ii) of the RTI Act whereby the application should have been transferred within five days of receipt to the public authority to which the subject matter of information sought is more closely connected, in this case the Frontier Hqrs., BSF. Besides under the Central Information Commission (Appeal Procedure) Rules, 2005 there is no necessity for the personal presence of an appellant or complainant before even the Information Commission to obtain a decision on the information requested. Thus we might conclude that, with the fees having been paid the law does not demand the presence of an applicant before a CPIO and the CPIO is bound to provide the information which has been sought.
3Nevertheless, in the present case, we find that considerable information has in fact been obtained by the Frontier Hqrs., BSF, Srinagar, although nothing has been provided to complainant Dr. Raja Muzaffar Bhat.
In light of the above this Commission hereby decides that Complainant Dr. Raja Muzaffar Bhat will within one week of the date of receipt of this decision notice either send by mail or hand over personally to Shri Shabbir Ahmad Alvi, DIG, BSF, Hqrs details regarding the FIR filed in P. S. Chadoora by the family of Mohammad Ashraf Yatoo on his. Thereafter Shri Shabbir Ahmad Alvi will provide such information as is held by Frontier Hqrs., BSF on Mohammad Ashraf Yatoo to complainant Dr. Raja Muzaffar Bhat within fifteen working days of receipt of these details. Since this information was not provided within the time limit mandated under section 7 (1) this will be provided free of cost as per sub-section (6) of section 7.
The only remaining question is whether any other CPIO in this case has rendered himself liable to penalty under section 20 of the RTI Act. We find that although the CPIO, BSF, HQrs can be faulted for not having transferred the application within five days, DG, BSF, Hqrs had informed complainant Dr. Raja Muzaffar Bhat in time that the case pertained to IG, Frontier, BSF, Srinagar, through a letter which is acknowledged during the hearing by DIG, BSF, Srinagar to have been received on 1st August. CPIO, Hqrs. BSF is, therefore not liable for penalty. On the other hand Frontier Hqrs., BSF has no record of any response. The explanation of this in the hearing by Shri Shabbir Ahmad Alvi in saying that the Hq was never approached by complainant with regard to the information sought as advised by BSF, Hq, Delhi, the Frontier Hq. Is simply invalid. As explained above it is not necessary for an applicant to appear before the CPIO to obtain the information that he/she is seeking. It would have been appropriate for CPIO, office of the IG, Frontier, Hqrs, BSF to have sent applicant Dr. Raja Muzaffar Bhat the information collected from 80 battalion, BSF, then located in Punjab. Nevertheless because the Frontier Headquarter had taken the pains to collect this information in order to supply the same to the complainant, we do not hold the CPIO liable for penalty. Nevertheless as already directed the 4 information garnered will now be provided to complainant Dr. Raja Muzaffar Bhat free of cost. If not satisfied with the information received complainant Dr Bhat will be free to move a 1st appeal before the designated appellate authority, to be identified by name and address by CPIO in furnishing his response. The complaint is thus allowed. There will be no costs Announced in the hearing. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 2-7-2010 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.
(Pankaj K.P. Shreyaskar) Joint Registrar 2-7-2010 5