Central Information Commission
Kunchandy Raju vs North Delhi Municipal Corporation ... on 21 August, 2019
Central Information Commission
बाबागंगनाथमागग ,मुननरका
Baba Gangnath Marg, Munirka
नईददल्ली, New Delhi - 110067
नितीय अपील संख्या / Second Appeal No. CIC/NDMCK/A/2018/103271
Shri Kunchandy Raju ... अपीलकताग/Appellant
VERSUS
बनाम
PIO/Ex. Engineer (M-I), KBZ, ...प्रनतवादीगण /Respondent
NDMC, Karol Bagh, Moti Nagar,
New Delhi
Through: Tejvir Singh/ EE(M)I, KBZ
Date of Hearing : 19.08.2019
Date of Decision : 21.08.2019
Information Commissioner : Shri Y. K. Sinha
Relevant facts emerging from appeal:
RTI application filed on : 16.08.2017
PIO replied on : 22.09.2017
First Appeal filed on : 25.10.2017
First Appellate Order on : 23.11.2017
2ndAppeal/complaint received on : 11.01.2018
Information soughtand background of the case:
Appellant filed RTI application dated 16.08.2017 seeking information on 7 points;
1. What action under the MCD Act has been initiated by NDMC with respect to the illegal construction on the Public Land in FRONT and BACK SIDE of D-95, Karampura, New Delhi-110015 (ground floor). As the said illegal encroachment on the Public Land has been admitted by N.D.M.C. during the Court proceedings in a case title Kunchandy Raju Vs. Mr. Gurcharan Singh and NDMC.
2. Whether any responsibility has been fixed upon the staff of NDMC for the said illegal encroachment on the public land as mentioned above.
3. What damages has been sought/proposed upon the person i.e. Shri Gurcharan Singh who has encroached upon the public land as admitted by NDMC.
4. How much specific time NDMC will take to discharge its duties in removing the illegal encroachment in the front and back side. Etc Page 1 of 3 PIO/Exe. Engineer (M)-I/KBZ, vide letter dated 22.09.2017 forwarded the reply to the Appellant as received by the concerned PIO. 6 out of 7 responses read, "No such record available in this office."
Dissatisfied with the reply received from the PIO, appellant filed First Appeal dated 25.10.2017. FAA vide order dated 23.11.2017 upheld the reply of PIO.
Feeling aggrieved as dissatisfied, appellant approached the Commission with the instant Second Appeal.
In the Second Appeal, Appellant has relied strongly on para 4 of the preliminary objections in the written statement as `submitted by the Respondent wherein it is admitted by the NDMC that "encroachment in the front and rear of the property was noticed."
Facts emerging in Course of Hearing:
None present on behalf of the Appellant despite advance service of notice for the hearing. An Advocate, Sh. Jitender Kumar Kranti, appearing on behalf of the Appellant, arrived after the hearing was over, to file his Vakalatnama and a written submission dated 19.08.2019 to allow the present RTI application in the interest of justice.
A submission dated 16.08.2019 as received from the Respondent reads, "...that no record in this regard found on the record of this office/division as reply appears to be submitted by the concerned A.E. to the court directly on the field observations hence no comment may be made on this,"
Respondent reiterates the contents of the above-mentioned submission and states that the document which is the subject matter of the information as sought by the Appellant is neither in their possession nor is traceable by them. It is the argument of the Respondent that during the proceedings of Kunchandy Raju Vs. Mr. Gurcharan Singh and NDMC, since it was Sh. S.Alijah H. Khan/ AE(Bldg.) KBZ, NDMC (now retired) who was handling the case, the document has since been untraceable by the Department. Respondent requests for extension of time so he can trace the document in the department and with the concerned Advocate in that case.
Interim Decision It is astonishing that the defence taken by Respondent during the hearing for not furnishing a timely reply to the Appellant is that there is no record in the possession of the Respondent, as per his submission dated 16.08.2019. It is all the more surprising that the FAA has not applied himself regarding the facts of the case and upheld the reply of the PIO in conveniently denying the information to the Appellant without reasonable cause. In the foregoing, as the copy of the submission made by the Respondent before the Hon'ble Tees Hazari Courts is not traceable, the Commission hereby directs Registry of this Bench to issue SHOW CAUSE NOTICE upon the then PIO/Sh. K.K.Dhiran, E.E(KBZ-I), presently posted at E.E (M)(Civil Lines Zone) for (i) providing an evasive reply to the Appellant and (ii) not transferring the RTI application u/s6(3) of the RTI Act to the appropriate custodian of the information, thereby, causing obstruction in the flow of information and violating provisions of the RTI Act. Noticee must provide a reasonable response explaining the omissions on his part, and why no penal action should be initiated against him for the same. This response from PIO/Sh. K.K.Dhiran must Page 2 of 3 reach the Commission at least one week prior to the date of hearing of the Show Cause case with a copy to the Appellant.
Without going into the factual controversy, the Commission finds that non traceability of public record is no ground to deny information. The PIO has sought some time to trace the relevant records. In such circumstances, the Commission deems it fit to summon the complete records. In addition to this, a revised effort should be made to trace the file by the concerned PIO of the Respondent Department not only in his office but also in other wings of the NDMC to identify as to who is the actual custodian of the information, as sought by the Appellant. The present PIO/ Sh. Tejvir Singh/ EE(m)I, KBZ is directed to remain present before the Commission on the date of hearing of the Show Cause case with the records summoned. In the event, if any record is missing, the PIO shall file a duly sworn affidavit before the Commission explaining the factual position regarding the missing records and the action taken to restore records, one week before the date of hearing with a copy to the Appellant.
Y. K. Sinha (वाई. के . नसन्हा) Information Commissioner (सूचना आयुक्त ) Authenticated true copy (अभिप्रमाणितसत्यापितप्रतत) Ram Parkash Grover (राम प्रकाश ग्रोवर) Dy. Registrar (उप-पंजीयक) 011-26180514 Page 3 of 3