Central Information Commission
Gopal Prasad vs Department Of Urban Development on 7 March, 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/DOURD/A/2017/148703-BJ
Mr. Gopal Prasad
....अपीलकता/Appellant
VERSUS
बनाम
CPIO
Dy. Land & Development Officer
Ministry of Urban Development
Land and Development Office
Nirman Bhavan, New Delhi - 110011
... ितवादीगण /Respondent
Date of Hearing : 28.02.2019
Date of Decision : 07.03.2019
Date of RTI application 07.04.2017
CPIO's response 04.05.2017
Date of the First Appeal 31.05.2017
First Appellate Authority's response 12.06.2017
Date of diarised receipt of Appeal by the Commission 14.07.2017
ORDER
FACTS:
The Appellant vide his RTI application sought information on 08 points regarding allotment of land to United India Periodicals Private Limited, Link Road, 3 Bahadur Shah Zafar Marg, Press Area, ITO, ND-2, on lease vide Order dated 29.08.1959,etc. The CPIO, vide its letter dated 04.05.2017 denied disclosure of information being "Third Party"
information after taking consent from the concerned third party. Dissatisfied with the response, the Appellant approached the FAA. The FAA, vide its order dated 12.06.2017 while referring to Section 11(1) of the RTI Act, 2005, upheld the CPIOs response.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Gopal Prasad along with Adv. M. Mishra;Page 1 of 10
Respondent: Mr. Sujit Kumar Mishra, SO;
The Appellant reiterated the contents of the RTI application and stated that information sought had been wrongly denied being third party information by the Respondent Public Authority. It was further alleged that the Respondent had blatantly violated the provisions of the RTI Act, 2005 by not furnishing the desired information which was in the larger public interest. The Respondent present during the hearing while reiterating the response of the CPIO/FAA, submitted that the third party vide their letter dated 06.04.2017 had objected to the disclosure of information while citing Section 8(1) (d) of the RTI Act, 2005. The Appellant while contesting the above averments of the Respondent, submitted that the Respondent Public Authority had also not complied with the provisions of Section 4 (1) of the RTI Act, 2005 and further requested the Commission to direct them to suo motu disclose the information relating to lists of allotments, terms & conditions of the lease and complete procedure relating to grant of lease starting from the submission of application till allotment of properties, details of monitoring authority etc. The Appellant in support of his contention further cited the decision of the Delhi High Court in the case of "The Associated Journals Limited and Another's Vs. Land and Development Office"
commonly known as "National Herald Case" pronounced on 28.02.2019 wherein the division bench comprising the Hon'ble Chief Justice Rajendra Menon and Justice V K Rao while confirming the single bench decision dated 21.12.2018, upheld the eviction order passed against National Herald Publisher Associated Journals Limited to vacate ITO premises where Herald House is situated. It was further articulated that the above referred case was applicable in the instant matter since the land was transferred by way of lease to United India Periodicals Ltd., vide Order dated 29.08.1959 and the same was retransferred/let out to "Central Bank of India"
and "JK Tyre" which shows the clandestine and surreptitious transfer for the lucrative interest in the said allotted premises, and flouted the modus operandi of the allotment. Moreover the Respondent also verbally informed that the license issued to the United India Periodicals Private Limited, was cancelled by the Respondent Public Authority.
Attention of the attendees was drawn towards the recent decision of the Hon'ble Supreme Court in the matter of Ferani Hotels Private Limited vs. the State Information Commissioner, Greater Mumbai & Others in Civil Appeal Nos. 9064-9065 of 2018 (Arising out of SLP (C) Nos. 32073- 32074/ 2015) dated 27.09.2018, wherein the Hon'ble Court has directed to disclose the building plans, sanctioned plans, and details of commercial establishments in the public domain. The relevant observations made in the decision are mentioned hereunder:
"34. In the end, we would like to say that keeping in mind the provisions of RERA and their objective, the developer should mandatorily display at the site the sanction plan. The provision of sub-section (3) of Section 11 of the RERA require the sanction plan/layout plans along with specifications, approved by the competent authority, to be displayed at the site or such other places, as may be specified by the Regulations made by the Authority. In our view, keeping in mind the ground reality of rampant violations and the consequences thereof, it is advisable to issue directions for display of such sanction plan/layout plans at the site, apart from any other manner provided by the Regulations made by the Authority. This aspect should be given appropriate publicity as part of enforcement of RERA."
Having heard both the parties and on perusal of the available records, the Commission observed that in its reply, the CPIO did not expressly specify the provision under Section 8 (1) claimed to deny the information. Moreover, even the Third Party in its letter dated 06.04.2017 conveying Page 2 of 10 their objection to disclose the information only cited Section 8 (1) (d) of the RTI Act, 2005 without giving justifications/ reasons for claiming the exemption. It is a settled principle of law that disclosure of information is the only established Rule for promoting transparency and accountability in the working of every public authority and exemption can only be claimed when the information sought falls within the gamut of exemptions provided under Section 8 (1) of the RTI Act, 2005. Mere claim of the Respondent that the third party had denied the disclosure of information cannot be a ground for denial of information under the RTI Act, 2005. 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. In this context, 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."
Moreover, as per the provisions of Section 7 (8) (i) of the RTI Act, 2005, where a request for disclosure of information is rejected, the CPIO shall communicate the reasons for such rejection. Furthermore, in the instant matter, it cannot be said that the documents sought were in the exclusive custody of the Third Party since it pertained to transfer of property through Lease by way of a contractual arrangement wherein the Respondent Public Authority was also an equal stakeholder being Lessor thereby having access to records. A reference can also be made to the order of the Hon'ble High Court of Nagpur in Sunflag Iron & Steel Company Ltd. V. State Information Commission Writ Petition No. 863/ 2012 dated 14.11.2014 wherein it was allowed to disclose the Memorandum of Understanding to which the Government of Maharashtra was party on the ground that the information was not exclusively related to the third party. The relevant observations of the Court are as under:
"10. After hearing the learned advocates for the respective parties and considering the judgments referred above, in my view, it cannot be said that in each and every case the notice under Section 19(4) of the Act of 2005 is required to be issued to third party and hearing is to be afforded to the third party before any directions for supplying the information are given. The Division Bench of Delhi High Court has considered the scope of Section 11(1) of the Act of 2005 and has laid down that the notice is required to be given to third party in case information prima facie is considered as confidential and if it affects the rights of privacy of the third party.
12. If the impugned order is examined in the light of the above referred judgments, it has to be held that the directions given by the Commission to provide the information as sought vide Item no.5 of the application given by the respondent no.1 cannot be said to be an information which can be considered as confidential and in the exclusive possession Page 3 of 10 of the petitioner, it being a Memorandum of Understanding to which the Government of Maharashtra is a party. However, the information sought by the respondent no.4 vide Item No.4 of his application, cannot be provided to the respondent no.4 without hearing the petitioner and considering its objections. The information sought by the respondent no.4 vide Item no.4 of his application, does not specify the documents in respect of which the information is sought and the directions to provide the information on such vague request may prejudice the petitioner.
13. The reliance placed on behalf of the petitioner on the judgment given in the case of R.K. Jain V/s. Union of India & Anr. (cited supra) is misdirected inasmuch as in this case, the information sought related to the annual confidential reports of the third party which objected to the providing of the information. In the judgment given in the case of Surupsingh Hrya Naik V/s. State of Maharashtra & Ors. (cited supra) again the issue was about giving of information relating to the hospital records. In the judgment given in the case of SKIL Infrastructure Private Limited & Anr. V/s. State Information Commissioner & Ors. (cited supra) the issue about supplying the information which was not exclusively in the custody of the third party and which related to the transactions of the State Government, did not fall for consideration.
The judgments relied on behalf of the petitioner do not assist the petitioner. As far as the facts of the present case are concerned, information sought by the respondent no.4 vide item no.5 of his application is concerning the Memorandum of Understanding to which the Government of Maharashtra is party and it cannot be said that the information is exclusively related to the petitioner. The directions issued by the Commission to provide the information to the respondent no.4 sought vide Item no.5 of his application cannot be faulted with."
The Commission also places reliance on the decision of the Hon'ble High Court of Madras in V.V. Mineral v. Director of Geology and Mining, Writ Petition (MD) No.5427/2007 dated 25/06/2007 wherein the following was held:
"11.Therefore, the principal contention that a right accrues to the petitioner to object may be correct in the context if a document is exclusively submitted by any person to the Government authorities such as property statements, income tax returns etc., but in a case of lease deeds and transport permits which emanate from the statutory authorities and where the petitioner cannot be said to be in exclusive possession, he cannot have a right to object to its being divulged as a third party. The lease deeds pertaining to minerals as well as transport permits are not documents prepared or to be kept by a prospecting mine operator but prospecting a mine or mineral is a privilege conferred by the State to the individuals, who accepts the norms prescribed under Mines and Minerals Act 1957 and the rules framed thereunder.
12. In the present case, when the third respondent as an Information Officer, ordering notice to the petitioner and taking their objection and refusing to furnish the documents sought for by a citizen is clearly beyond the scope of the RTI Act. If the information is available with the State and such information is in exclusive custody of the State, the question of seeking any opinion from the third party on such issues may not arise especially, when they are public documents. By disclosure of such information, no privilege or business interests of the petitioner are affected. On the other hand, such a disclosure may help any party to act upon those documents and take appropriate steps."Page 4 of 10
The Commission was appalled to learn that the information pertaining to the lists of allotments, terms & conditions of the lease, complete procedure relating to grant of lease starting from the submission of application till allotment of properties, details of monitoring authority etc. was not available with the Respondent whereas the same should have been uploaded on its website under Section 4 (1) (b) of the RTI Act, 2005.
The Commission however observed that a voluntary disclosure of all information that ought to be displayed in the public domain should be the rule and members of public who having to seek information should be an exception. An open government, which is the cherished objective of the RTI Act, can be realised only if all public offices comply with proactive disclosure norms. Section 4(2) of the RTI Act mandates every public authority to provide as much information suo- motu to the public at regular intervals through various means of communications, including the Internet, so that the public need not resort to the use of RTI Act. Thus, information relating to allotment of alternative plots should be disclosed suo motu in the public domain for the ease and convenience of the public at large.
The Hon'ble Supreme Court of India in the matter of CBSE and Anr. Vs. Aditya Bandopadhyay and Ors 2011 (8) SCC 497 held as under:
"37. The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under Clause (b) of Section 4(1) of the Act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption."
The Commission also observes the Hon'ble Delhi High Court ruling in WP (C) 12714/2009 Delhi Development Authority v. Central Information Commission and Another (delivered on:
21.05.2010), wherein it was held as under:
"16.It also provides that the information should be easily accessible and to the extent possible should be in electronic format with the Central Public Information Officer or the State Public Information Officer, as the case may be. The word disseminate has also been defined in the explanation to mean - making the information known or communicating the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet, etc. It is, therefore, clear from a plain reading of Section 4 of the RTI Act that the information, which a public authority is obliged to publish under the said section should be made available to the public and specifically through the internet. There is no denying that the petitioner is duty bound by virtue of the provisions of Section 4 of the RTI Act to publish the information indicated in Section 4(1)(b) and 4(1)(c) on its website so that the public have minimum resort to the use of the RTI Act to obtain the information."
Furthermore, High Court of Delhi in the decision of General Manager Finance Air India Ltd & Anr v. Virender Singh, LPA No. 205/2012, Decided On: 16.07.2012 had held as under:
"8. The RTI Act, as per its preamble was enacted to enable the citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. An informed citizenry and transparency of information have been spelled out as vital to democracy and to contain Page 5 of 10 corruption and to hold Governments and their instrumentalities accountable to the governed. The said legislation is undoubtedly one of the most significant enactments of independent India and a landmark in governance. The spirit of the legislation is further evident from various provisions thereof which require public authorities to:
A. Publish inter alia:
i) the procedure followed in the decision making process;
ii) the norms for the discharge of its functions;
iii) rules, regulations, instructions manuals and records used by its employees in discharging of its functions;
iv) the manner and execution of subsidy programmes including the amounts allocated and the details of beneficiaries of such programmes;
v) the particulars of recipients of concessions, permits or authorizations granted. [see Section 4(1) (b), (iii), (iv), (v); (xii) & (xiii)].
B. Suo moto provide to the public at regular intervals as much information as possible [see Section 4(2)]."
A reference can also be made to the above referred decision of the Apex Court in the matter of Ferani Hotels Private Ltd. vs. the State Information Commissioner, Greater Mumbai & Ors. in Civil Appeal Nos. 9064-9065 of 2018 (Arising out of SLP (C) Nos. 32073-32074/ 2015) dated 27.09.2018, wherein it was decided that:
15.............In terms of sub-section (2) of Section 6 of the said Act, there is no mandate on an applicant to give any reason for requesting the information, i.e., anybody should be able to obtain the information as long as it is part of the public record of a public authority. Thus, even private documents submitted to public authorities may, under certain situations, form part of public record. In this behalf, we may usefully refer to Section 74 of the Indian Evidence Act, 1872, defining 'public documents' as under:
74. Public documents - The following documents are public documents:-
(1) Documents forming the acts, or records of the acts--
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, [of any part of India or of the Commonwealth], or of a foreign country; [of any part of India or of the Commonwealth], or of a foreign country;"
(2) Public records kept [in any State] of private documents.
16. The only exemption from disclosure of information, of whatever nature, with the public authority is as per Sections 8 & 9 of the said Act. Thus, unless the information sought for falls under these provisions, it would be mandatory for the public authorities to disclose the information to an applicant."
Page 6 of 10The Commission also observed that the issues raised in the RTI application pertained to the larger public interest and hence should be answered in accordance with the provisions of the Act. Moreover, since the allotment of land on lease was made long back by the Respondent Public Authority there appears no justification to keep it secret at this stage. The Commission finds that the decision of the Hon'ble High Court of Delhi in Jamia Millia Islamia v. Ikramuddin WP (C) No. 5677/2011 dated 22.11.2011, is pertinent in this matter wherein it was observed that:
"The act of entering into an agreement with any other person/entity by a public authority would be a public activity, and as it would involve giving or taking of consideration, which would entail involvement of public funds, the agreement would also involve public interest. Every citizen is entitled to know on what terms the Agreement/settlement has been reached by the petitioner public authority with any other entity or individual."
The Commission also draws reference to the judgment of the Division bench of Jharkhand High Court, in State of Jharkhand v. Navin Kumar SInhga and Anr., AIR 2008 Jharkhand 19 dated 08/08/2007, wherein it was held as under:
"26........The question therefore that falls for consideration is as to whether disclosure of various documents submitted by the bidders is a trade secret or commercial confidence or intellectual property. Prima facie, we are of the view that once a decision is taken in the matter of grant of tender, there is no justification to keep it secret. People have a right to know the basis on which the decision has been taken. If tenders are invited by the public authority and on the basis of tender documents, the eligibility of a tenderor or a bidder is decided, then those tender documents cannot be secret, that too, after the tender is decided and work order is issued on the ground that it will amount to disclosure of trade secret or commercial confidence. If the authorities of Government refuse to disclose the document, the very purpose of the Act will be frustrated. Moreover, disclosure of information, sought for by the petitioner, cannot and shall not be a trade secret or commercial confidence; rather disclosure of such information shall be in public interest, inasmuch as it will show the transparency in the activities of the Government.
27. ......... Since the tender process is completed and contract has been awarded, it will not influence the contract. Besides the above, a citizen has a right to know the genuineness of a document submitted by the tenderer in the matter of grant of tender for consultancy work or for any other work. As noticed above, the tender process is completed and the contract has been awarded, therefore, it will not influence the contract. In any view of the matter, the document in question cannot be treated as trade secret or commercial confidence. In our considered opinion a contract entered into by the public authority with a private person cannot be treated as confidential after completion of contract."
Moreover, the observation of the Division Bench of the Hon'ble High Court of Delhi in the matter of Associated Journals Ltd and Anr. vs. Land and Development Office, LPA 10/2019 & CM Nos. 566/2019 & 649/2019 dated 28.02.2019 wherein while confirming the single bench decision dated 21.12.2018, the Division Bench upheld the eviction order passed against National Herald Publisher Associated Journals Limited to vacate ITO premises where Herald House is situated with the following observations:
Page 7 of 10"53......The principles of law canvassed by the learned Senior Counsel appearing for the appellant and laid down in the case of S.Sundaram Pillai (Supra) and Shrikrishna Oil Mill vs. Radhakrishan Ramchandra, (2002) 2 SCC 23 pertaining to tenancy law cannot be applied in a case like this where the lease of government properties is granted to an organization or an establishment to carry out a specific act or purpose and if for a long period of time, the said purpose is not carried out and when there is a breach which even though to some extent may have been rectified when the proceedings for breach were going on, in our considered view, cannot be a ground for holding that the breach has been rectified in full and, therefore, there cannot be determination. It is the case where admittedly printing activities and publication of the newspaper were not being carried out in the premises when the inspection took place initially on 26th September, 2016 and even when the second inspection took place on 9th April, 2018 what was found was that the basement was lying more or less vacant and the fourth floor was being used for lessee for its office."
With regard to providing a clear and cogent response to the Appellant, the Commission referred to the decision 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."
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 a CPIO cannot escape his obligations and duties by stating that persons appointed under him had failed to collect documents and information. 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."
Page 8 of 10However, regarding the issue of 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 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.Page 9 of 10
......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 for imposition of penalty. Nonetheless, it was observed by the Commission that the allotment of government land by MOUD on concessional terms and conditions to anybody / organization was a matter of concern for the public at large and that there should be no denial of information on this account.
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the aforementioned judgments, the Commission directs the Respondent to furnish all the details sought by the Appellant in his RTI application within a period of 15 days from the date of receipt of this order. The Commission also advises the Respondent Public Authority (L&DO) to examine the RTI application and suo motu place the details of all leased properties in accordance with the provisions of Section 4 of the RTI Act, 2005 on its website taking into consideration the larger public interest involved in the matter.
The Appeal stands disposed with the above direction.
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: 07.03.2019
Copy to:
1. Shri Durga Shankar Mishra, Secretary, Ministry of Urban Development, Room No. 122-
C, Nirman Bhawan, Maulana Azad Road, New Delhi-110011 Page 10 of 10