Central Information Commission
Tarun Parashar 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/2018/620900-BJ +
CIC/DDATY/A/2018/620868-BJ +
CIC/DDATY/A/2018/139740-BJ
1. Mr. Dheeraj Parashar
2. Mr. Tarun Parashar
.... अपीलकता/Appellant
VERSUS
बनाम
CPIO and Asstt. Director (OSB),
Delhi Development Authority,
Old Scheme Branch, A-Block, 2nd Floor
Vikas Sadan, INA
New Delhi -110023
... ितवादीगण /Respondent
Date of Hearing : 05.12.2019
Date of Decision : 09.12.2019
ORDER
RTI 1: CIC/DDATY /A/2018/620900 Date of RTI application 20.03.2018 CPIO's response 28.03.2018/ 04.05.2018 Date of the First Appeal 29.03.2018 First Appellate Authority's response 27.04.2018 Date of diarised receipt of Appeal by the Commission Nil FACTS:
The Appellant vide his RTI application sought information on copy of FIR and FIR No. with relation to two meetings dated 16.08.2005 and 19.08.2005 held between Vice Chairman, DDA and Commissioner, MCD as per the directions of the Delhi HC in LPA No.58/2005.
The CPIO, vide his reply dated 28.03.2018 denied to provide the information for the reason that the matter was sub-judice. Dissatisfied by the CPIO's response, the Appellant approached the FAA. The FAA, vide later dated 27.04.2018 directed the PIO to furnish all the requisite information within a period of 7 days. In compliance with the order of the FAA, the CPIO vide Page 1 of 7 its letter dated 04.05.2018 provided the photocopy of the FIR. It was also stated that File 12 (3280)/05/HC/Legal Pt was with a panel lawyer which would be provided after obtaining the same from the lawyer on the next date of hearing on 12.07.2018.
RTI 2: CIC/DDATY /A/2018/620868 Date of RTI application 29.03.2018 CPIO's response 11.04.2018 and 14.05.2018 Date of the First Appeal 12.04.2018 First Appellate Authority's response 07.05.2018 Date of diarised receipt of Appeal by the Commission Nil FACTS:
The Appellant vide his RTI application sought information on copy of FIR and FIR No. with relation to two meetings dated 16.08.2005 and 19.08.2005 held between Vice Chairman, DDA and Commissioner, MCD as per the directions of the Delhi HC in LPA No.58/2005; system of in-house inquiry in DDA to investigate into forgery of DDA/ DIT documents committed by DDA employee or outsider, etc. The CPIO, vide his reply dated 11.04.2018 denied to provide the information for the reason that the matter was sub-judice. Dissatisfied by the CPIO's response, the Appellant approached the FAA. The FAA, vide its order dated 07.05.2018 directed the PIO to furnish all the requisite information within a period of 7 days. In compliance with the order of the FAA, the CPIO vide its letter dated 14.05.2018 provided the photocopy of the FIR. It was also stated that the Vigilance Department of DDA investigated such cases where any complaint was received. The file in question was a P/L hence it cannot be replied whether any inquiry had been done in the case or not. Furthermore, the information would be provided as and when the same was received and that the next date of hearing was 12.07.2018.
RTI 3: CIC/DDATY/A/2018/139740 Date of RTI application 01.04.2018 CPIO's response 11.04.2018 Date of the First Appeal 12.04.2018 First Appellate Authority's response 27.04.2018 Date of diarised receipt of Appeal by the Commission 22.06.2018 FACTS:
The Appellant vide his RTI application sought information on 03 points regarding the certified copy of the rules and other documents under which the mutation of property (plot no. 17, Block No. 27, Roshanara Ext. Scheme, now Shakti Nagar, Delhi 110007) was done by the DDA especially when the area was not under the jurisdiction of DDA; copy of succession certificate/ documents available with the DDA by considering that the persons mentioned in the letter considered the Legal Heirs of Bali Ram and the property was mutated in their name and certified copy of complete file including their office notes, letters, approvals, sanctions, etc related to the aforementioned reference letter, etc. Page 2 of 7 The CPIO vide its letter dated 11.04.2018 denied disclosure of information on the ground that the matter was sub-judice at that stage. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its order dated 27.04.2018 directed the CPIO to provide the information within 07 days. In compliance with the order of the FAA, the PIO (Old Scheme Branch) vide its letter dated 04.05.2018 stated that the subject file was with the panel lawyer and the documents sought would be provided at the next date of hearing i.e., 12.07.2018.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Dheeraj Parashar and Mr. Tarun Parashar arrived late; Respondent: Mr. Rakesh Kumar, AD/ OSB, arrived late The Appellants reiterated the contents of the RTI application and stated that the information sought pertaining to the FIRs filed against them and their family members were not disclosed by the Respondent. While acknowledging the receipt of the written submission from the Respondent dated 04.12.2019, the Appellant stated that a contradictory response was provided in the written submission vis a vis' the response provided by the CPIO since the CPIO had mentioned about enclosing a copy of the FIR with the reply which was not found to be enclosed with the response whereas in the written submission it was mentioned that the information was not available with their office. Thus, the Appellants re-iterated that the information pertaining to the FIRs filed against them and their family members ought to be disclosed by the Respondent. In its reply, the Respondent stated that the information held and available with them was disclosed to the Appellant. As regards the FIR, the Respondent stated that in the year 2005, a complaint was made to the PS Shaktinagar to register an FIR against the Appellant and his family members. However no FIR Number or Copy was provided by the Shaktinagar Police Station hence a suitable response was provided to the Appellant at this stage by way of the written submission dated 04.12.2019. As regards the remaining information pertaining to inquiry report to investigate the forgery of DDA/ DIT documents by the Appellant, no satisfactory response was offered by the Respondent. On being queried, if the concerned note-sheets and the preceding processes leading to forwarding a communication to the concerned Police Station was available on record, the Respondent feigned ignorance and desired more time to re-examine the records. To a question from the Commission if an affidavit regarding the unavailability of the records pertaining to the FIRs filed against the Appellants could be provided, the Respondent replied in the affirmative but desired more time to examine all the necessary records once again.
The Commission was in receipt of a written submission from the Respondent dated 03.12.2019 (Appeal No. CIC/DDATY /A/2018/620900-BJ) wherein it was stated that the complete information could not be provided as the same was not available with their office and the Appellant had been requested to obtain the same from SHO Police Station, Shakti Nagar, New Delhi vide letter dated 03.12.2019.
The Commission was in receipt of a written submission from the Respondent dated 04.12.2019 (Appeal No. CIC/DDATY /A/2018/620868) wherein it was stated that the matter between the Appellant and the owner of the plot No. 17/27, Shakti Nagar went upto the Hon'ble Supreme Court of India and was decided against the mother of the Appellant on 20.04.2017. Further, the owners of the aforesaid plot went to the High Court for handing over of physical possession of the plot which was decided on 12.07.2018 and the said file further remained held up in the Page 3 of 7 processing to comply with the directions of the Hon'ble High Court to issue possession to the LRs of Late Sh. Beliram.
Having heard both the parties and on perusal of the available records, the Commission observed that a clear and cogent response ought to have been provided to the Appellant by the CPIO/ FAA. 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."
The Commission also observed that as per the provisions of Section 19 (5) of the RTI Act, 2005, in an Appeal proceeding, the onus to prove that a denial of a request was justified shall be on the CPIO. Neither the Respondent present during the hearing nor the CPIO responding to the RTI application, could justify their position as to how the disclosure of information would be in contravention to any of the provisions enshrined under Section 8 of the RTI Act, 2005 While observing that in order to deny information under any of the exemption mentioned under Section 8 (1) of the RTI Act, 2005, the Respondent is required to provide justification or establish the reason why such exemption was claimed, the Commission referred to the decision of the Hon'ble High Court of Delhi in the matter of Dy. Commissioner of Police v. D.K. Sharma, WP (C) No. 12428 of 2009 dated 15.12.2010, wherein it was held as under:
"6. This Court is inclined to concur with the view expressed by the CIC that in order to deny the information under the RTI Act the authority concerned would have to show a justification with reference to one of the specific clauses under Section 8 (1) of the RTI Act. In the instant case, the Petitioner has been unable to discharge that burden. The mere fact that a criminal case is pending may not by itself be sufficient unless there is a specific power to deny disclosure of the information concerning such case."
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:
Page 4 of 7"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 also referred to the decision of the Hon'ble High Court of Delhi in Sudhiranjan Senapati vs. Union of India decided by the Hon'ble High Court of Delhi in W.P. (C) 7048/2011 dated 05.03.2013 wherein it was observed that the Appellant required the information to defend himself in criminal proceedings before the concerned authority and that disclosure of information may facilitate the exercise of this right. The Hon'ble High Court of Delhi in its decision in Sudhiranjan Senapati had held as under:-
"12.1 It appears in that case the petitioner, who was being criminally prosecuted for having fraudulently reduced the quantum of excise duty to be paid by an assessee, while passing an adjudication order, had sought information with regard to: note sheets; correspondence obtaining qua the material in the file of the CBI; correspondence in the file of the CVC pertaining to the matter; and correspondence in the file of the Department of Vigilance, CBES.
12.2 A close perusal of the nature of information sought seems to suggests that much of it may have been material collected during the course of investigation, the disclosure of which could have perhaps hampered the prosecution of the petitioner.
13. Therefore, in my view, in such like cases when, the State takes a stand the information cannot be disclosed; while dilating on its stand in that behalf, the State would necessarily have to, deal with the aspect as to how the information sought, is of such a nature, that it could impede prosecution. Much would thus depend, on the nature of information sought, in respect of which, a clear stand needs to be taken by the State, while declining the information. The burden in this regard is on the State [see B.S. Mathur Vs. Public Information Officer of Delhi High Court, 180 (2011) DLT 303]
14. With the aforesaid observations in place, the writ petition is allowed. The order of the CIC is set aside. The respondents will supply the information sought for by the petitioner within three Page 5 of 7 weeks from today, after redacting names of officers who wrote the notes or made entries in the concerned files."
The Hon'ble High Court of Delhi in the matter of Union of India vs. D.N. Kar in W.P. (C) 4056 of 2008 and CM Nos. 7869 and 10885 of 2008 dated 14.09.2010, had held as under:
"11. In the considered view of this Court, the above submissions are misconceived. The Respondent is seeking information only about himself being included in the Agreed List. There is no question of the Department invoking the right to privacy of the Respondent to deny him information concerning him which is held by them. The apprehension that such information may tarnish the reputation of the Respondent is also misconceived. It is also the Respondent himself who is asking the information on the material on the basis of which his name was included in the "Agreed List". Moreover, the period during which the Respondent's name was included in the "Agreed List" has long come to an end. The period during which he was kept under surveillance is over. By disclosing to the Respondent the material on the basis of which his name was included in the Agreed List, there is no danger of, the purpose of placing him under surveillance, being defeated.
12. As regard inputs that might have been given to the Department by certain persons in a fiduciary capacity, this Court finds that the CIC has, in its impugned order dated 3rd April 2008, adequately accounted for such contingency. It has been directed by the CIC that the CPIO is free to withhold the names of the officials who might have provided critical inputs and recommended the inclusion of the Respondent's name in the Agreed List. Further, the CPIO has also been permitted by the CIC to withhold the name of the complainant, if any, in the matter.
13. This Court concurs with the view expressed by the CIC that if the Respondent feels that his name was wrongly included in the Agreed List for three years continuously and that such inclusion is indeed a stigma on his career and, therefore, he wishes to prove his innocence, he cannot be deprived of such an opportunity by withholding the material on the basis of which his name was so included. Adequate safeguards have already been provided for by the CIC in its impugned order. In the circumstances, there can be no justification for the Petitioner to deny the Respondent the information sought by him."
In the context of issuance of affidavit, if the information sought was not available with the Respondent, the Commission also referred to the decision of the Hon'ble High Court of Delhi in Ajay Kumar Gulati v/s Pushpender Nath Pandey and anr. W.P.(C)3381/2011 dated 30/10/2013 wherein it was inter-alia observed as under: -
"9. When the writ petition came for hearing on 28.01.2013, the following direction was issued to respondent No. 2:
"In view of the above, respondent no. 2 shall file an affidavit stating therein clearly as to whether relevant record has been destroyed and if that is so, whether information with regard to the same has been entered in the Records Destroyed Register. If such a register is maintained, the relevant extract from the said Registrar will accompany the affidavit."
10. In order to bring the whole controversy to an end, the respondent, vide order dated 01.07.2013 was directed to file affidavit of the concerned General Manager Page 6 of 7 responding to the information sought by the petitioner vide application dated 30.10.2008 in respect of items No.2 to 16. In compliance of the aforesaid order, the respondent bank has filed an affidavit of its General Manager stating therein that the information sought by the petitioner filed vide application dated 30.10.2008 could not be provided to him as the same was not traceable and is still not traceable in the bank, despite best efforts to trace the said information. In view of the categorical affidavit filed by none other than the General Manager of the Bank, it is quite clear that the information to the extent it is not supplied to the petitioner is not available with the bank in any form. Since the information is not available with the bank, there can be no question of granting any direction to the bank to provide the same to the petitioner.
11. In the facts and circumstances of the case, no further relief can be granted to the petitioner."
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission directs the Respondent to re-examine the matter and provide the information pertaining to the FIR filed against the Appellants. In the event of unavailability of information, the Respondent is directed to issue an Affidavit to that effect to the Appellant 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: 09.12.2019
Copy to:
1. Vice Chairman, DDA, A-Block, 1st Floor, Vikas Sadan, INA, New Delhi - 110023
2. The Pr. Commissioner cum Secretary, DDA, B-Block, 4th Floor, Vikas Sadan, INA, New Delhi.
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