Central Information Commission
Sh. Kayumars F Mehta vs Board Of Management Of Bombay ... on 30 March, 2011
1
Central Information Commission
Room No.296, II Floor, B Wing, August Kranti Bhawan, Bhikaji Cama
Place, New Delhi110066
Telefax:01126180532 & 01126107254 websitecic.gov.in
Adjunct to Appeal : No. CIC/SG/C/2009/001346DS
Complainant : Sh. Kayumars F Mehta
No. 1 Ashley House, Opposite
Colaba
PO - Colaba, Mumbai400005.
Respondent : Board of Management of
Bombay
Properties of the Indian
Institute of
Science, Mumbai
RTI application filed on : 24.09.2007
PIO replied : 28.11.2007
First Appeal filed on : 03.12.2007
Complaint filed on : 05.10.2009
Complaint notice issued on : 08.10.2009
Hearing Notice issued on : 04.12.2009
Hearing notice issued on : 15.02.2010
Date of Decision : 30.03.2011
Facts:
The Complainant had sought information regarding 2 flats situated in Hamton Court and 1 flat on Jenkins House and also information regarding IISc Bangalore as they are the owners of the flats. The details of the information sought from the PIO, IISc are as under:
a) The names of present tenants since there was a proposal to transfer the flats to the defence forces.
b) Whether Edwart Investment was authorized by IISc to negotiate on their behalf.
c) Whether IISc is a charitable trust and does it fall under charitable commissioner or UGC.
d) Whether permission had been taken to allot flats to the defence forces.
e) The total transaction since the market vale of the flats were estimated to be around Rs 5 crores.
Adjunct to Appeal : No. CIC/SG/C/2009/001346DS 2
f) The benefits to IISc in the transfer of the flats.
g) Whether Edwart Investment control IISc, Bangalore.
h) Act or legislation under which Edwart Investment has control over IISc Bangalore.
i) The person responsible for the loss of revenue.
j) Whether any bids/offers were invited to determine market value of the flats.
k) All the correspondence regarding between IISc and Edwart Investment.
Reply of the PIO (the PIO gave answer to query no 3):
3) IISc Bangalore is a central autonomous Body under the Ministry of HRD, Govt of India. IISc is also a deemed university under UGC.
To the other queries, PIO replied that property named "Bombay Property" was offered by Late Shri JN Tata to Govt of India to help the Govt establish IISc, by order dated 27/05/1908 under Charitable Endowments Act. The Govt then appointed a treasurer. A Board of Management had been constituted to manage the property. PIO, IISc forwarded the RTI Application on 01/11/2007 and the Board replied that it was not covered by the provisions of RTI Act. Even if it was covered by the provisions of the RTI Act, the information cannot be provided as it is exempt under the provisions of the RTI Act.
The Complainant filed three other RTI Applications with the PIO, IISc requesting for information relating to the Bombay properties. He was informed by the PIO, IISc that the information sought was not available with them.
Grounds for First Appeal:
Information has been wrongly denied.
Adjunct to Appeal : No. CIC/SG/C/2009/001346DS 3 Order of the First Appellate Authority:
The First Appellate Authority stated the Board of Management handled matters relating to the Bombay Property. The Institute had no authority over such matters. Internal correspondence within the Board of Management was not available with the Institute.
The Complainant then filed a Second Appeal with the Commission and the Commission gave the following order on 18 November 2008 in Decision No. CIC/OK/A/2008/01040/SG/0627:
"The respondent has stated that the other points in the RTI query were referred to the 'Board of Management of Bombay Properties of Indian Institute of Science' (referred to as Board). The said board has all the information on the other points and this is not with the Indian Institute of Science. The Board has replied that they would not give the information without assigning any reasons. From the information provided by the respondent and the appellant, it appears that the Board consists of four members, out of whom two are Government of India nominees and one more member is a nominee of the Indian Institute of Science.
If this information is correct, the Board is a Public authority and is covered by the provisions of the Right to Information Act.
The right course in this case would be for the PIO to transfer the RTI application to the PIO of the Board under Section 6 (3) of the Act.
Decision:
The appeal is disposed.
Adjunct to Appeal : No. CIC/SG/C/2009/001346DS 4 The PIO is directed to transfer the RTI application to the 'Board of Management of Bombay properties of Indian Institute of Science' before 22 December, 2008.
The Board will reply to this application as per the provisions of the RTI act. If they wish to deny the information they will give the reasons for denial as per the provisions of the Act."
The Complainant received a letter dated 16/01/2009 from the Secretary of the Board of Management in response Commission's order in which he was informed that the Board was not given an opportunity for hearing by the Commission. Furthermore, the letter explained the constitution of the Board to support the contention that it is not a public authority. It further stated that even if it was assumed that the Board is a public authority, information sought by the Complainant was personal in nature and therefore its disclosure would cause unwarranted invasion of privacy.
The Complainant then filed Appeals on 21/02/2009 and 23/03/2009 with the Board against this refusal of information by the Secretary of the Board. He was informed that the Board was not a public authority under Section 2(h) of the RTI Act vide letters dated 19/03/2009 and 09/04/2009.
Grounds for Complaint:
The Complainant then approached the Commission as he had not received information from the Board of Management.
The Commission registered Complaint No. CIC/SG/C/2009/001346 and issued a notice dated 08/10/2009 to the Board of Management directing them Adjunct to Appeal : No. CIC/SG/C/2009/001346DS 5 to respond to the Complainant's RTI Application before 03/11/2009.
The Commission received a letter dated 29/10/2009 from the Secretary, Board of Management reiterating that the Board was not a public authority. It was further requested that an opportunity for hearing be granted to the Board to present its views before the Commission.
The Complainant through a letter dated 10 November 2009 informed the Commission that till date he had not received any response from the Board.
The Commission decided to schedule a hearing in this matter and notice of hearing dated 04/12/2009 was sent to both parties directing them to appear before the Commission on 05/01/2010 at 2.30 p.m. Relevant Facts emerging during Hearing held on 05 January 2010:
"The following were present Complainant: Mr. Kayumars F Mehta; Mr. Arvind Kumar & Mr. Neeraj Kumar, Advocates;
Respondent: Mr. Pallav Sishodia instructed by Mr. Shiv Suri advocate for the Board of Management; Mr. H.D. Malesra, Consultant The advocate on behalf of the Complainant submitted that the Board of Management had not challenged the previous order of the Commission dated 18/11/2008 and therefore it should comply with it. Furthermore the Board of Management is constituted by a scheme which is a notification and therefore the Board should be considered to be a public authority under Section Adjunct to Appeal : No. CIC/SG/C/2009/001346DS 6 2(h) of the RTI Act. The Board of Management is carrying out a public function. If the information relating to the properties is not with the Board it should be with IISc which should be directed to give the information. The advocate on behalf of the Complainant also contended that the Board of Management was controlled by the Government as out of the three Members on the Board of Management 3 were Government nominees.
The advocate on behalf of the Respondent claimed that the Commission had not passed a judicial order. It had passed a quasijudicial order which could be rectified subsequently. He stated that in accordance with Section 4 of the Charitable Endowments Act 1890 (CE Act hereinafter), a vesting order had been issued by which the Bombay property was donated by Mr. JN Tata in early 1904 for the benefit of IISc and it vested with the Treasurer. The Treasurer in accordance with Section 4(4) of the CE Act was not under an obligation to administer the property. Under Section 5 of the CE Act a different body was constituted under a Scheme to administer the property. This Scheme has to be 'settled' by the appropriate government and a notification or order is not issued by the Government to constitute the Board. Clause 12 of the Scheme is the part relevant to the present case as it constitutes the Board of Management. The Scheme is not a notification or an order. The Board of Management is not answerable to the Institute.
The Board of Management has four Members the Collector of Mumbai, a resident of Mumbai nominated by the Government of India; one representative of the Sir Dorabji Tata Trust and the Director of the IISc. The advocate further contended that just because the Board of Management has three nominees of the Government out of four members, it does not mean that the government exercises any form of control. The Government cannot issue any directive to the Board to Adjunct to Appeal : No. CIC/SG/C/2009/001346DS 7 manage the property in any particular manner. The Government cannot remove the private trustee. It was further contended that control over the trust was different from control over the trustee and that in this case the Government did not have any control over the trust. The advocate also drew distinction between the controlling trustee and managing trustee.
In the end the advocate for the Respondent submitted that the Commission should only decide on the issue of whether the Board of Management should be considered a public authority and not decide on whether exemptions under Section 8 of the RTI Act apply to the information sought by the Complainant in his various RTI Applications.
The Commission reserved its decision after the hearing."
Decision announced on 12 January 2010:
"The issues that need to be decided in this case are as follows:
• Whether the Board of Management of the Bombay Properties of the Indian Institute of Science is a "public authority"?
• If, so whether the information sought by the Complainant can be provided under the RTI?
Before deciding the above issues it is necessary to first look at how the properties that are referred to as "Bombay Properties" and regarding which information has been sought by the Complainant came to be vested with the Board of Management of the Bombay Properties of the Indian Institute of Science (henceforth "the Board").
Adjunct to Appeal : No. CIC/SG/C/2009/001346DS 8 The PIO in his reply had stated that the property named "Bombay Property" was offered by Late Shri J.N. Tata to the Government of India to help the Government establish the IISc. In pursuance of the powers under Sections 4 and 5 of the Charitable Endowments Act, 1890 the Government of India by Notification No. 433 dated 27 May, 1909 vested the above said properties with the Treasurer of the Charitable Endowments.
The Board in its letter dated 16 January, 2009 has contended that it is not a "public authority" as defined under section 2(h) of the RTI Act. It has stated in the above mentioned letter that by a Power of Attorney dated 6 March, 1986 the Treasurer of Charitable Endowments for India had constituted the members of the Board as Constituted Attorneys and hence the members of the Board, which have changed from time to time, are constituted attorneys of the Treasurer of Charitable Endowments.
We will examine the contention of the Board that the members of the Board are the constituted attorneys of the Treasurer of Charitable Endowments. The above mentioned vesting order has been substituted by a revised scheme called the "Scheme for the Administration and Management of the Properties and Funds of the Indian Institute of Science, Bangalore" (henceforth "the Scheme"). The above vesting order no. 433 dated 27 May, 1909 has been replaced by a notification of the Central Government No.820164T.6 dated 22 May 1967. The said notification clearly states that it is meant to be a revised scheme with effect from 22 May 1967 which has been issued by the Central Government under Section 5 of the CE Act, 1890. It is pertinent to reproduce Section 5 of the CE Act, 1890.
Adjunct to Appeal : No. CIC/SG/C/2009/001346DS 9 "5. Scheme for the administration of property vested in the Treasurer (1) On application made as hereinafter mentioned, and with the concurrence of the person or persons making the application the appropriate government, if it thinks fit, may settle a scheme for the administration of any property which has been or is to be vested in the Treasurer of Charitable Endowments, and may in such scheme appoint by name or office, a person or persons, not being or including such Treasurer, to administer the property" (emphasis supplied).
The Scheme for the Board of Management has been formulated according to the provisions of Section 5(2) of the CE Act, 1890. Section 5(2) states "5 (2) on application made as hereinafter mentioned, and with the concurrence of the person or persons making the application, the appropriate Government may, if it thinks fit, modify any scheme settled under this section or substitute another scheme in its stead." (emphasis supplied).
This Scheme establishes a Board of Management as defined in Para 12.1 of the Scheme. Therefore, the Board has been constituted in pursuance of a Scheme framed by the appropriate government according to the provisions of Section 5, Charitable Endowments Act, 1890. Thus the contention of the Respondent that the members of the Board are the constituted attorneys of the Treasurer of Charitable Endowments cannot be accepted as it is clear that the Board owes its existence to the Scheme notified by the Central Government in accordance with the provisions of Section 5 of the Charitable Endowments Act, 1890.
Section 2(h) of the RTI Act lays down the definition of public authority. The relevant subsection (d) of section 2(h) is reproduced below:
Adjunct to Appeal : No. CIC/SG/C/2009/001346DS 10 "public authority" means any authority or body or institution of selfgovernment established or constituted--
(d) by notification issued or order made by the appropriate Government, and includes any--
(i) body owned, controlled or substantially financed;
(ii) nonGovernment organization substantially financed, directly or indirectly by funds provided by the appropriate Government"
Hence, the conditions that need to be satisfied to constitute a public authority, in this case, are two fold. Firstly, the public authority should be any "authority" or "body" or "institution of self government". Secondly, the above such public authority should be established or constituted by a notification issued or order made by the appropriate government to satisfy condition (d). If the body is controlled by the Government also, it would be construed as a Public authority.
The words "authority" or "body" have not been defined in the Act. Hence, in the absence of any statutory definition or judicial interpretation to the contrary, the normal etymological meaning of the expression has to be accepted as the true and correct meaning. This position has been held and followed in number of decisions of the Commission like P.K. Dalmia v. CPIO, Supreme Court of India, Appeal No.CIC/WB/A/2009/000184, and by the High Court of Delhi in CPIO, Supreme Court v. Subhash Chandra Agarwal, 162(2009) DLT 135.
A "body" is defined to mean a number of individuals spoken of collectively, usually associated for a common purpose. (P. Ramanatha Iyer, The Law Lexicon, 2nd edn., Wadhwa and Company Nagpur). The Oxford English Dictionary defines a body as "an organized group of people with a common function." In this case the Respondent Board has been constituted to look after and manage all immovable properties along with other functions defined in para 12.2 of the Scheme. Therefore the Board, by the fact that it has been constituted through a Scheme which came into effect through a Central Government Notification, is a public authority as defined in Section 2(h)(d) of the RTI Act.
Adjunct to Appeal : No. CIC/SG/C/2009/001346DS 11 According to the Scheme, out of the three members of the Board, one member who is a resident of Bombay is nominated by the Government of India while the other is the Collector of Bombay or such other officer as the Government of India may appoint.
From the information provided by the Appellant and the Respondent it appears that the Board consists of four members, out of whom two are Government of India nominees and one is a nominee of the Indian Institute of Science. This information has not been refuted by either of the parties. In either case, relying on the Scheme or the information provided by the parties, it appears that two of the members are nominees of the Government of India.
The Collector who is a member of the Board functions in an exofficio capacity and the nominee of the Indian Institute of Science are both Government officers, hence it can be said that the government exercises control over the Board. Furthermore, the resident of Mumbai is also nominated by the Government of India. Thus two of the four members of the board are Government officers and one is nominated by the Government of India; therefore three of the four members of the Board owe their positions on the board due to their nomination by the Government. The two Government officers are expected to represent the Government. If 50% or more of the board is made up of Government officers who are nominated by the Government, they are so nominated to represent the views of the Government and it is not necessary for the Government to issue daily directions to such nominees. A Government officer, once nominated by the Government to perform certain functions, is expected to act in accordance with the government's position. The nominee discharges his duties not in a private capacity but as a representative of the Government. Like any other Government officer, he does not require directions from the government to carry out each of his duties - as a Government officer he is assumed to be acting on behalf of the Government. Thus it can certainly be stated that the Government is in control of the Board of Management through its nominees. The contention of the Respondent Board that the members of the Board are constituted attorneys and the Government does not exercise any functional control hence cannot be accepted.
Adjunct to Appeal : No. CIC/SG/C/2009/001346DS 12 The Commission comes to the conclusion that the Board is controlled by the Government, and thus the Board of Management of Bombay Properties of the Indian Institute of Science is a Public authority as defined by Section 2 (h)(i) of the RTI Act.
Hence the complaint is allowed.
Thus for the reasons stated above, the Board is a public authority according to the definition given in section 2(h)(d) and (i) of the RTI Act. The Board is directed to appoint a PIO and First Appellate Authority before 31 January 2010.
The Commission will hear the arguments of parties on the issue of whether the information should be disclosed under the provisions of the RTI Act on 12 February 2010 at 3.30 p.m."
Submissions received before hearing on 12/02/2010:
The Commission received a letter dated 08/02/2010 through fax on 09/02/2010 from the Secretary of the Board. He informed the Commission through this letter that the Board has decided to challenge the afore mentioned decision of the Commission through Writ Petition. He also requested the Commission not to proceed with the hearing on 12/02/2010.
He was informed vide letter dated 09/02/2010 that as he had not moved a Writ Petition till date and there is no stay order issued by a Court on the order of the Commission, the order of the Commission remains in force and has to be complied with. The Supreme Court has held in Ghaziabad Development Authority v. Balbir Singh AIR 2004 SC 2141 that "...unless there is stay obtained from a higher forum, the mere fact of filing of an appeal/revision will not entitle the authority to not comply with the order of the Forum. Even though the authority may have filed an appeal/revision, if no stay Adjunct to Appeal : No. CIC/SG/C/2009/001346DS 13 is obtained or if stay is refused, the order must be complied with."
Noncompliance of the Commission's order which is still in force, may lead to initiation of penalty proceedings in accordance with the Right to Information Act, 2005. The Commission will hold a hearing on 12/02/2010 and the Commission may pass appropriate orders on that date.
Relevant Facts emerging during Hearing on 12 February 2010:
The following were present:
Complainant: Mr. Kayumars F Mehta; Mr. Arvind Kumar & Mr. Neeraj Kumar, Advocates;
Respondent: Mr. Shiv Suri advocate for the Board of Management;
The Complainant has sought information to four RTI applications from the Board of Management of Bombay Properties (referred to as Board). At the Commission's request he has listed the queries for which he wants the information now by reducing the number of queries.
The minimum information required out of the original applications as stated by the Appellant during the hearing are as follows:
a. The names of present tenants of flat no. 1 and 20 in Hampton Court and No. 9 in Jenkins House.
b. Whether Edwart Investment was authorized by Board to negotiate on their behalf.
c. Whether permission had been taken from Charity Commissioner to allot flats to the defence forces.
Adjunct to Appeal : No. CIC/SG/C/2009/001346DS 14 d. What are the terms for allotment of these flats?
e. Whether any competitive bids were called.
f. List of tenants from 1991 till date for flat no. 26 in Hampton Court.
g. Whether any flat was occupied by Mr. J.N. Tata or by Mr. Mohini Datta during the period 1991 to till date.
h. List of immovable properties managed by management of Bombay Properties.
i. Whether any transfer of tenancy right in Hampton Court or Jenkins House Flats starting form 1980 till date.
The Respondent states that he was not aware that the Board is public authority. The Respondent states that the Commission gave a decision on 12/01/2010 deciding that the Board is a public authority and the decision reached them on 18/01/2010 directing it to appoint a Public Information Officer and First Appellate authority before 31 January 2010. When the law was enacted Section 5(1) gave all public authorities 100 days to appoint public information officer in all administrative units. The Respondent therefore believes that he should have been given 100 days to appoint a public information officer. The Commission wishes to point out that the Board was a public authority when the RTI Act received the Presidential assent. The Board has not acted as per the law and not appointed a PIO though it was a public authority. Hence the Commission cannot accept that every public authority can go around claiming that firstly, they will not act as per the law, and then only after the Commission decides that they are a public authority take a further 100 days to appoint a PIO and First Appellate authority.
The Respondent also states that they were not present when the decision was announced hence they did not Adjunct to Appeal : No. CIC/SG/C/2009/001346DS 15 have the opportunity of asking the Commission to stay its order. The Respondent also states that since the information has not been provided since 2007 the Commission should give the Respondent enough time to approach courts and that no harm could come if further time was allowed to them. The Respondent further prays that in the back drop of above three respectful submissions the Respondent submits that they are not at this stage making any submission on the question whether any information should be disclosed under the RTI Act and Respondent accordingly submits that they may kindly be permitted to reserve the right to do so if the need arises at a later date.
The Commission deplores this attitude of delaying matters by using judicial and quasijudicial processes to prolong decisions. It is revealing that whereas the RTI Act expects information to be provided to the citizens in 30 days the Respondent feels that a delay of nearly 900 days is of no great consequence. Everyone is certainly entitled to use all the remedies available in law, but to use these to delay matters and to claim the right to delay as superior to the fundamental rights of Citizens, appears to be making a mockery of the law. It was explained to the Respondent that he certainly has the remedy of going in a writ to the Court but it has to be exercised before the expiry of the time given in the statutory order. This has been stated in the Supreme Court's order of Justice Variava. It is significant that the respondent does not even appear to have approached a Court so far. The Respondent states that the observation made by Hon'ble Supreme Court in the case of Ghaziabad Development Authority Vs Balbir Singh (2004) 5 SCC 65 is an obiter dicta and hence not binding. The respondent states that if the Commission does not accede to his demand he is not in a position to make submission on the issue of whether the information should be disclosed under the provisions of the RTI Act.
The Appellant states that they had not received any request for adjournment as the respondent has not Adjunct to Appeal : No. CIC/SG/C/2009/001346DS 16 made any submissions on the merits of the questions asked in RTI application and have not claimed any exemption during the hearing, it is requested that the Respondent be directed to provide the information as per law.
Decision announced on 15 February, 2010.
The Commission has noticed that the RTI application has been filed in 2007 and inspite of a lapse of over two years information has not been provided. Sequentially the information has been blocked first by IISc saying that the Board was a separate entity and the information was held by it and subsequently by the Board of Management claiming that it was not a public authority.
In the hearing held at the Commission on 5.01.2010 the Respondent's advocate requested the Commission to first only decide the matter of whether the Board was a public authority and subsequently decide on the matter of whether the information can be disclosed under the RTI Act. The Commission agreed to this and subsequently pronounced its decision on 12.01.2010 holding that the Board is a public authority. The RTI Act mandated that within 100 days of the Act being notified all public authorities had to appoint Public Information Officers. The definition of public authorities was given in the Act in sections 2 (h) of the RTI Act and hence all bodies and organizations which fell in the ambit of the definition were public authorities and were mandated by law to discharge all the duties cast by law on such public authorities. The Commission had declared the Board to be a Public authority by its order on 12 January 2010 and even if we accept the plea of the respondents that the order was received on 18 January 2010, the Board could have challenged the Commission's decision through a writ in the intervening period. If by 31 January 2010 the Board did not appoint a Public Information Officer and First Appellate authority, it chose to defy an order given by the Central Information Commission which is a Statutory authority. Section 19(7) of the RTI Act unequivocally declares that the "decision of Adjunct to Appeal : No. CIC/SG/C/2009/001346DS 17 the Central Information Commission, or State Information Commission, as the case may be, shall be binding".
From the deposition of the advocate of the respondent it appears that the Board continues its defiance of an order issued by a statutory authority. His plea that the Supreme Court judgement quoted by the Information Commission is an obiter dicta, implies that he does not believe that the time limits given in a legally binding order must be obeyed. This is a very dangerous doctrine since it would imply that all orders given by law may not be obeyed within the time specified if a party wishes to challenge them at any time later. An interpretation of this kind challenges the very fundamental premise on which the rule of law prevails. It seeks to establish a doctrine that the time within which a legally delivered order is implemented is elastic, so long as there is an intention to challenge the order. If the advocate of the respondent makes such a plea, this is indeed dangerous, since it means that all legal orders can be defied! Section 7(1) of the Right to Information Act, 2005 clearly stipulates that information has to be provided within 30 days of the receipt of the request. It also further states that if information is not provided to the citizen within the time specified under the Act a personal penalty will be imposed on the defaulting public information officer. Thus Parliament has made a clear promise to the citizen of delivering her fundamental right in a time bound manner. This promise made by Parliament cannot be allowed to be diluted by public authorities' tactics to delay judicial and quasijudicial processes. It is significant that the first draft of the Bill presented to Parliament in December 2004 had stipulated that Information Commissions would also have to dispose second appeals within 30 days. This provision was subsequently dropped in the final bill but is an indicator of the intention of Parliament. These mandatory provisions of providing information within a timebound manner and imposition of penalty Adjunct to Appeal : No. CIC/SG/C/2009/001346DS 18 on the defaulting officer unequivocally indicate the intention of the RTI Act: that not only should information be provided, but it should be provided within a time bound manner. The relationship between obtaining information and doing so within a stipulated time frame is crucial to serve the purposes of the RTI Act, not only for the citizen but also the public authority. Delay in providing information may lead to the information losing its relevance and hence defeating the purpose of the Act. Only when information is provided in a time bound manner would it serve the purpose of providing transparency and accountability. Without the time perspective the RTI Act would not fulfill its promise in its preamble of promoting transparency and accountability.
This Commission which is a creation of the RTI Act is very conscious of the fact that its job is to ensure information to citizens within a time bound manner. This Commission is conscious that the poorest man in India, who does not even get enough to eat and may be dying of hunger, is paying for every minute of this Commission's time. Hence it believes its duty is to ensure that Respondents or Appellants are not able to take disproportionate amount of its time to delay matters through the device of adjournments or multiple hearings. A Citizen has a right to expect that delivery of every service which the State must provide to him, whether a ration card, passport, or a decision by this Commission, must be done within a reasonable time. Hence the Commission is giving its decision in the matter, though the respondent has refused to give any reasons for denial of information. The Commission deplores the acts of Public authorities in unnecessarily wasting public money by delaying supplying information to the public by using public money.
The Respondent has given no valid reason for refusing to give his objections, if any, to disclosing the information. Denial of information under the RTI can only be based on the exemptions provided under section 8(1) of the RTI Act and the onus to prove Adjunct to Appeal : No. CIC/SG/C/2009/001346DS 19 that denial of information was justified has been placed on the PIO as per section 19(4) of the RTI Act. However, since the respondent has refused to give any reasons, the Commission has applied its mind to the information sought by the appellant and finds that prima facie none of the exemptions of section 8(1) apply to the information sought by the Appellant. The Respondent has chosen not to give any reasons for denial of information. Hence it is appears that he does not have any valid reasons to invoke the provisions of section 8(1) of the RTI Act.
As per decision of the Commission, the Appeal was allowed and the PIO of the Board of Management of the Bombay Properties of the Indian Institute of Science was directed to provide the complete information to the Appellant before 5 March, 2010.
This decision is announced in open chamber.
Notice of this decision be given free of cost to the parties.
Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act.
Shailesh Gandhi Information Commissioner 15 February 2010 _______
1. Appellant has approached the Commission vide his complaint dated 25 October 2010 against non compliance by the respondent namely The Board of Management of the Bombay Properties of the Indian Institute of Science of the Commission's order of 15 February 2010 in which it is observed that the respondent has not furnished any valid reasons for not furnishing information to the appellant and had been directed to provide the complete information to the appellant before 5 March 2010.
Adjunct to Appeal : No. CIC/SG/C/2009/001346DS 20
2. Vide Notice dated 14 February 2011 both parties were directed to appear before the Commission.
3. Respondent meanwhile moved Bombay High Court in Writ Petition no 1887 of 2010 challenging the order dated 15 February 2010 passed by the Central information Commissioner wherein it was held that the respondent is a public authority as defined under section 2 (h) (d) of the RTI Act, 2005. This Writ Petition was dismissed vide the Court's order dated 11 October 2010. The order states that the Court had not granted stay to the impugned order and has upheld the Commission's order and the petition was rejected.
4. The matter was listed today. Representatives of the appellant were present in person. Appellant was heard through videoconferencing from Mumbai. Respondent did not appear.
5. Appellant drew the attention of the Commission to the fact that his original RTI application was made in November 2007 and it is now over three years that the respondent has used every possible excuse to deny disclosure of information which is not exempted under the provisions of RTI Act, 2005. He highlighted that the Commission has already concluded that the Board of Management of Bombay Properties of the Indian Institute of Science is a public authority as defined under section 2 (h) (i) of the Act and they had been directed to appoint a PIO and first appellate authority before 31 January 2010. Appellant also cited judgment of the Supreme Court who has held in Ghaziabad Development Authority vs Balbir Singh AIR 2004 SC 2141 that -
"... Unless there is a stay obtained from a higher forum, the mere fact of filing of an appeal/revision will not entitle the authority to not comply with the order of the Forum. Even though the authority may have filed an appeal/revision, if no stay is obtained or a stay is refused, the order must be complied with."
6. Appellant pleaded that suitable penalty should be imposed upon the respondent for not having complied with the Commissions orders in spite of there not being any stay by any higher court on the decision of the Commission. He emphasized that the RTI Act prescribes that information should be provided to the citizens within 30 days that the Adjunct to Appeal : No. CIC/SG/C/2009/001346DS 21 respondent has held back information for nearly 900 days on the grounds that he has filed writ petition in the High Court against the orders of the Commission and did not appoint a Public Information Officer and First Appellate Authority in flagrant defiance of the order of the Commission. He averred that this argument of the respondent fails in the light of the Supreme Court decision quoted above.
7. Appellant submitted that he had received information from the respondents vide their letter dated 28 February 2011 in response to their RTI application but that it is vague and false. And importantly the covering letter is not signed by the CPIO but by the Secretary to the Board. Appellant showed documents to buttress his averments that false information had been provided to him particularly in respect of point 5 where appellant stated that the correct position was that this was a tripartite agreement.
8. Meanwhile Commission has received a fax letter dated 28 February 2011 from the respondent after the conclusion of the hearing today in which it is stated that the Writ Petition no 1887 of 2010 filed by them in the High Court at Bombay was dismissed in terms of the Order dated 11 October 2010 following which they had applied for a certified copy of the said Order which was received by them on in January 2011. Respondent has further gone on to state that as per the provisions of the Limitation Act 1963, respondent had 90 days from the date of the Order to file Special Leave Petition in the Supreme Court as per section 12 of this Act, after excluding the time taken for receiving a certified copy of the Order. Therefore as per respondent's own calculation he had up to 10 January 2011 for filing SLP. Respondent further goes on to state that the Board had since taken the decision not to file any SLP against the Order dated 11 October 2010 of the honourable Bombay High Court. Finally, respondent states that once this decision was taken, "the Board also decided to provide the information sought for by Mr Mehta in his RTI application dated 24 September 2007 and thereupon steps were taken to gather the information and furnish it to him." Accordingly respondent has provided information to the appellant under cover of their letter dated 28 February 2011. Respondent has submitted that in view of the above facts, "if the Commission is of the view that any delay has been Adjunct to Appeal : No. CIC/SG/C/2009/001346DS 22 caused, the same may please be condoned in view of the compliance with the Order."
Decision Notice
9. After hearing the appellant and taking cognizance of the letter dated 28 February 2011 which was received by fax at 1: 50 pm on 30 March 2011 after conclusion of the hearing, the Commission makes the following observations:
(1) The respondent has stated in their letter of 28 February 2011 (received by fax on 30 April 2011 after the hearing was closed) that information has been provided to the appellant following decision taken by the Board. This statement is fallacious and based on incorrect understanding of the RTI Act. All public authorities are required under this Act to furnish information sought under valid application made as per the RTI Act and such action does not require the prior approval of any Board/Higher Management. Therefore it was improper on the part of the respondent to have waited to hold a meeting of the Board to obtain their prior approval before furnishing information to the appellant as per the provisions of the RTI Act and as specifically directed by the Commission vide orders dated 12 January 2010 and 15 February 2010.
(2) Commission observes that in spite of having been declared a public authority by the Commission and which order was upheld by the honourable High Court of Bombay, the Board of Management of the Bombay Properties Of the Indian Institute of Science has not appointed a CPIO or First Appellate Authority as is mandated under the RTI Act, 2005. Also that information has been furnished to the appellant vide letter dated 28 February 2011 which is signed by the Secretary of the Board and not by the CPIO.
Furthermore the particulars of the first appellate authority have not been furnished to the appellant in this letter thereby informing him of his right with respect to review the Adjunct to Appeal : No. CIC/SG/C/2009/001346DS 23 decision in case he is not satisfied. ( Section 7 (3) b) of the Act).
(3) The letter from the respondent dated 28 February 2011 addressed to the Commission in response to the show cause notice dated 14 February 2011 is also signed by the Secretary of the Board and not by the CPIO who was directed to present himself before the Commission whereby he was given opportunity of personal hearing before imposition of penalty.
(4) The respondent has voluntarily chosen not to avail of this opportunity - a right granted to him under the provisions of section 20 (1) of the Act. He has instead chosen to justify the inordinate delay in furnishing information in compliance with the directions of the Commission through his letter of 28 February 2011 in which delay is attributed to the filing of writ petition in the High Court (even though no stay was granted), time gap in receiving certified copy of the Order of the High Court dismissing the petition and time period of 90 days available to him thereafter for filing SLP before the Supreme Court (which option they finally decided not to exercise). On this issue the ruling of the Apex Court is clear as quoted in Para 5 above and therefore cannot be accepted as valid ground for delay/nonfurnishing of information.
10. For the reasons recorded above, the Commission deems it fit to impose maximum penalty of Rs. 25,000 on the CPIO in pursuance of the provisions set out under section 20 (1) of the Act. The CPIO has chosen not to present himself before the Commission today and prove that he acted reasonably and diligently in carrying out his responsibilities as mandated under the Act. The reasons submitted by him in his letter dated 28 February 2011 (received today after the hearing was closed) are not tenable and valid reasons and are therefore not accepted as credible. There is no doubt in the commissions mind that the delay has been deliberate and in flagrant violation of the directions of the Commission. The Head of the Organization is directed to recover the amount of Rs. 25,000/ from the salary of the CPIO and remit the same by a demand draft or a Banker's cheque in the name of the Pay & Accounts Officer, CAT, payable Adjunct to Appeal : No. CIC/SG/C/2009/001346DS 24 at New Delhi and send the same to Shri Pankaj K.P. Shreyaskar, Joint Registrar and Deputy Secretary of the Central Information Commission, 2nd. Floor, August Kranti Bhawan, New Delhi110066. The amount may be deducted at the rate of Rs. 5000/ per month every month from the salary of the CPIO and remitted by the 10th of every month starting from May, 2011. The total amount of Rs. 25,000/ will be remitted by 10 th of September,2010.
11. Respondent is directed to appoint a CPIO and First Appellate Authority within one week of receipt of the order under intimation to the Commission.
12. Commission has also noted the dissatisfaction of the appellant with the information furnished to him. Respondent is directed to provide full and complete information as sought by the appellant as per the provisions of the RTI act within two weeks of receipt of the order. Respondent will also give opportunity of inspection of the concerned files to the appellant within two weeks thereafter at a mutually convenient date and time in case appellant makes such request.
(Smt. Deepak Sandhu) Information Commissioner (DS) Authenticated true copy:
(T. K. Mohapatra) Under Secretary & Dy. Registrar Tel No. 01126105027 Copy to:
1. Shri Kayumars F Mehta No. 1, Ashley House, Opposite Colaba PO - Coplaba, Mumbai400005
2. The CPIO The Board of Management of Bombay Properties of The Indian Institute of Science, Cardy House, Flat No. 3, 1st. Floor Mandlik Road, Colaba Mumbai400001.
3. The Secretary The Board of Management of Bombay Properties of The Indian Institute of Science, Adjunct to Appeal : No. CIC/SG/C/2009/001346DS 25 Cardy House, Flat No. 3, 1st. Floor Mandlik Road, Colaba Mumbai400001.
4. The Director The Indian Institute of Science Bangalore560012
5. Shri Pankaj K.P. Shreyaskar, Joint Registrar and Deputy Secretary of the Central Information Commission, 2nd. Floor, August Kranti Bhawan, New Delhi110066.
Adjunct to Appeal : No. CIC/SG/C/2009/001346DS