Central Information Commission
Shri S.C. Gogia vs Delhi Development Authority ( Dda) on 21 July, 2008
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2007/00606/00607 & 00624, all 14.5.'07
Right to Information Act 2005 - Section 19
Appellant: Shri S.C. Gogia
Respondent: Delhi Development Authority ( DDA)
FACTS
These are three appeals received from Shri S.C. Gogia of Janakpuri, New Delhi on applications addressed to DDA.
File No. CIC/WB/A/2007/00606 In his application of 11-10-06 assigned ID No. 3858 Shri S.C. Gogia sought the following information:
"Reply/ response to letters dated 6.4.06 (7.4.06) (one letter only) and 31.3.05 not received so far.
(Explanation, letter dated 6.4.07 addressed to Chief Legal Advisor was delivered on 7.4.06 at DDA, hence the dates mean the same)."
To this he received the following reply from Shri B.S. Jaglan, OSD (RL) dated 9-11-06:
"In this connection, it is to inform you that since you have already been gone to the Hon'ble High Court, therefore, your issue to sub-judice. As on date these representations dated 7.4.06 and other similar representations are yet to be examined."
Appellant then moved his first appeal before the Commissioner (LD) on 15-12-06 seeking the following:
"The points raised in 3858 were not replied by the PIO, DDA to me. No such replies were filled with the Hon'ble Delhi High Court Legal Services Committee either. I am totally blank.
Kindly help me receive the replies point wise, clear and forthright."
In response he received the following intimation from Shri Sanjiv Kumar, DD (LA) dated 20-2-07:
"As the matter was sub judice the same was not possible. Now, since the DHCLSC has closed the matter his 1 representation will be sent to legal Cell for detailed examination."
Aggrieved by this, appellant moved his second appeal before us with the following prayer:
"As 2 ½ months have since lapsed, DDA be asked to provide me notings of detailed examination of my rep dated 6.4.06 addressed to the Chief Legal Advisor. The examination must have been done by the Chief Legal Advisor and I want his reply.
As DDA took undue time from 15.12.06 to 21.2.07, action under RTI Act be taken for unnecessary delay in disposal."
File No. CIC/WB/A/2007/00607 In his application of 11-10-06 assigned ID No. 3857 Shri S.C. Gogia sought information on the following:
"2. Can DDA provide for/levy punishment/ penalty/ misuser charges in the Lease Deed in a manner and quantity different from/ more than/ violative of that provided under section 14 read with 29 (2) if DD Act 1957?
3. Will DDA deny that any punishment/ penalty/ misuser charge provided in lease deed or levied by DDA officials which is more or other than provided u/s 14 r/w 29 (2)of DD Act 1957 is illegal and ultra virus of the Act passed by Parliament?
4. Please refer enclosure of page 1 does DDA except that determination of lease of the applicant thereto on account of misuser of illegal and bad in law and such a threat to determine lease was illegal?
5. If the reply to (4) above is No, then on the support/ basis of which law, order, Act of Parliament does DDA justify its threat of determination of lease vis-à-vis provisions of section 14 r/w 29 (2) of DD Act 1957?
6. Please refer page 2 enclosure. Is it correct to believe that clause II (13) of Lease Deed does not mention the provision determination of lease on account of misuser default?
7. On what grounds/ law/order does DDA threaten determination of Lease under clause II(13) of Lease Deed, when no such words are contained in the said clause?2
8. Please refer to pages 1, 3 and 4 of enclosures. Why did DDA not initiate criminal proceedings against the applicant (me) in court u/s 14 r/w 29 (2) of DD Act as was done earlier as is evident from pages at no. 3and 4 enclosed?
9. Please ref. to page 5 reply/ action taken on my petition dated 20.7.2000 to Chairman DDA , Lt. Governor of Delhi.
10. Under what law/ provision/ orders DDA levied the punishment/ penalty/ misuser charges of Rs. 9,07,314/- on the applicant ignoring/ exceeding/ by passing the specific provisions of DDA Act dealing with misuser (ref. page 6 enclosure)?
11. Does DDA agree that misuser charges can be collected/ fixed through prior agreement between the Lessee and Lessor but in case of defiance/ default this has to be dealt with u/s 14 r/w 29 (2) of DD Act in the court?
12. Does DDA levy/ collect misuser charges from the property, which has been converted freehold? If yes, then the manner and method of collecting such misuser charges.
13. In case, the owner refuses to pay up the misuser charges than what is the action taken?
To this he received a point-wise reply from Shri B.S. Jaglan, OSD (RL) as follows:
"1. No information required.
2 to 8. Action under Section 14 read with 29 (2) is for violation of Master Plan while lease determination and misuse charges are levied as per terms and conditions of lease and various circulars/ policy guidelines issued from time to time.
9. Photocopy of note portion regarding action taken on the letter dated 20.7.2000 is attached herewith.
10. As per policy of conversion of lease-hold to free-hold issued by the Govt. of India as well as subsequent orders/ circulars issued in this regard from time to time.
11. This will amount to expression of opinion and the same is not part of information.3
12. As per policy of conversion of lease-hold to free-hold, after conversion the cases are transferred to MCD to taking action in the matter.
13. DDA may reject the conversion application, process the case for determination of lease, and thereafter eviction from the premises and recovery of dues etc."
Not satisfied, however, appellant moved his first appeal on 15-12-06 submitting that the reply given to him was evasive. Upon this he received a more detailed reply from Shri Sanjiv Kumar, DD (LA) on 15-2-07 as below:
"2-3. In reply to this Para, it is stated that Section 14 of DD Act is regarding user of Land & Building in contravention of plan and accordingly. After the coming into operation of any of the plans in a Zone, no person shall use or permit to be used any land or building in that zone otherwise than in conformity with such plan. Provided that it shall be lawful to continue to use upon such terms and conditions as may be prescribed by regulations made in this behalf any land or building for the purpose and to the extent for and to which it is being used upon the date on which such plan comes into force Section 29 (2) of DD Act, provides regarding penalty."
Besides the above, action is taken for violation of terms and conditions of lease deed. The violation of terms and conditions of lease deed is mentioned clause II (15) of lease deed. On receipt of the conversion application, the same was processed and examined as per the conversion policy as well as per the circulars and orders regarding conversion policy and accordingly the misuse charges were raised in your case to finalise your conversion case. In view of above, it is very clear that simultaneous action may be taken under Section 1(4), 29 (2) of DD Act and for violation of terms and conditions of lease deed as explained above.
4. Yes, violation of terms and conditions of lease deed leads to determination of lease but in your case lease deed has not so far been determined.
5. The terms and conditions of lease are self explanatory which clearly speaks that in case of violation of the same leads to determination of lease of any leased out property
6. The whole terms and conditions of lease deed are self explanatory and violations of the same leads to determination of lease as per the terms and conditions of lease deed.
47. in reply to this Para it is stated that perpetual lease deed signed by the lessee is itself an agreement between the lessee and the Lessor subject always to the exceptions, reservations, covenants and conditions herein after contained, that is to say as follows:
II(13) The lessee shall not without the written consent of the Lessor carry on, or permit to be carried on, on the residential plot or in any building thereon any trade or business whatsoever or use the same or permit the same to be used for any purpose other than that of private dwelling or do or suffer to be done therein any act or thing whatsoever which in the opinion of the Lessor may be a nuisance, annoyance or disturbance to the Lessor and persons living in the neighbourhood.
PROVIDED that, if the Lessee is desirous of using the said residential plot or the building thereon for a purpose other than that of private dwelling, the Lessor may allow such change of user on such terms and conditions, including payment of additional premium any additional rent, as the Lessor may in his absolute discretion determine.
II(14) The lessee shall at all reasonable times grant access to the residential plot to the Lieutenant Governor for being satisfied that the covenants and conditions contained herein have been and are being complied with.
II(15) The Lessee shall on the determination of this lease peaceably yield up the said residential plot and the buildings thereon unto the Lessor.
8. It pertain to Dy. Director (Enforcement) Lands.
In addition, he received some further details from Ms. Neelam Chadha, Dy. Director (Enforcement) Lands dated 1-3-07 as follows:
"It is to inform that action of this office is on the basis of routine inspection made by the field staffs and it is very difficult by this office to initiate action under 14 read with 29 (2) of DDA Act 1957 against every misusers. However from the disclosure at page 3 & 4. It is quite evident that action against misuser was already taken this section 14 read with 29 (2) of DD Act 1957."
In this case appellant's prayer before us is as follows:
1. "Information asked for in my submissions at points 1 to 7 be supplied by the DDA.
2. Suitable action under RTI Act be taken against erring officials.5
3. Hon'ble Central Information Commission may take suitable action to suggest to Hon'ble Courts of law to condone my delay in filling cases for justice in view of the abnormal time taken by DDA to give me information under RTI Applications."
File No. CIC/WB/A/2007/00624 In his application of 9-10-06 assigned ID No. 3819 Shri S.C. Gogia sought the following information from PIO, DDA:
"1. Copy of circular dated 11.8.2003.
2. Copy of addendum dated 18.12.2003.
3. Policy guidelines for t his amnesty scheme applicable from 11.8.2003.
4. Reasons why this amnesty to applicant denied as I filed conversion application on 16.12.1999."
To this he received a point-wise reply from Shri B.S. Jaglan, Director (RL) dated 8-11-06 as follows:
"1. Photocopy of circular dated 11.8.03 is attached.
2. Photocopy of addendum circular dated 18.12.03 is attached.
3 to 5. To since there is no policy of amnesty therefore, question of giving the grounds does not arise."
Upon this, appellant moved his first appeal before the Commissioner (LD) on 28-12-06 raising a number of new questions that, nevertheless, were also responded to as below by Shri Prahlad Singh, Director (LC):
Point Query Reply
No.
1. I want to have copy of the notings, a) In this connection, it is
observations and minutes of the initiated that the relevant
meetings leading to the decision as noting position of the file is in
stated in Para (a) of the circular 24 pages and as per the
dated 11.8.03 (copy enclosed provision of RTI Act, Rs. 48/-
herewith). Please refer to the first 5 @ Rs. 2/- per page may be lines of Para (a) only as have been deposited in the account of highlighted. I had paid the DDA so that photocopies can conversion charges in lump sum and be sent to you at the earliest. not in instalments. What were the So that photocopies can be basis of this decision. sent to you at the earliest.
b) As regards payment of conversion charges in lump 6 sum and not in instalment, necessary comments in this regard will be furnished by DD "("LA)/OSD (RL).
3. I want to have copy of the notings/ `as mentioned in the reply of remarks/ observations on the Para-I, a sum of RS. 48/- on relevant file leading to the issuance a/c of photocopy charges will of circular dated 18.12.2003 be sufficient to provide modifying the circular dated 11.8.03 photocopy of noting of the and in addition of following lines in relevant file. policy approach.
"In case in which application for conversion have been received prior to 11.8.03, the misuse charges will be levied till 11.8.03 or up to the date of actual closure of misuse, whichever is earlier" (Highlighted)
4. Were the decision contained in Circular dated 11.8.2003and circulars dated 11.8.03 and 18.12.03 18.12.2003 were issued with duly notified as these formed crucial the approval of Vice- changes in the Central govt. Chairman, DDA. Copies of Scheme of conversions? Please both these circulars are provide copies of such notification. attached.
5. Were these decisions as at 4 above Circulars dated 11.8.03 and appropriately published in New Delhi 18.12.03 were neither News Papers as these affected published in the News Papers thousands and lakhs of those who and nor the same were had applied for conversion into required to be published in freehold. Please provide dates and the News Papers. copies of those publications.
Appellant Shri Gogoi then moved his second appeal before us with the following prayer:
"1. Earliest supply of documents for which I have paid.
2. Penalties be imposed on erring officials who are torturing senior citizens. Time limit for appeal be waived.
3. ISD.DDA staff must mention RTI ID No. One letter from Director (LC), does not mention RTI No. and demands Rs. 48/- which is too much and an effort to punish me. This is a policy decision and should have been published. Now I be given a free copy and allowed to appeal after that.
4. What sense it makes for DDA to collect Rs. 2/- or 4/- and send a speed post letter for it. DDA uses it only as a delaying tactic. Kindly suitably instruct them."7
He has specifically submitted the following statement with the plea that the information although paid for, has not been supplied:
S. RTI Date Amt Date DDA letter Date
No. No. Paid Paid
1. 3819 9.10.06 48.00 22.5.07 F21(55)/71/LSBR/50 9.3.07
2. 4858 19.12.06 2.00 2.2.07 F21(55)/71/LSBR/1148 29.1.07
3. 4859 19.12.06 14.00 2.2.07 F21(55)/71/LSBR/1141 29.01.07
4. 4860 19.12.06 26.00 10.01.07 F21(55)/71/LSBR/64 4.1.07
5. 5078 28.12.06 4.00 2.2.07 F21(55)/71/LSBR/1108 29.1.07
6. 5080 28.12.06 12.00 -do- F21(55)/71/LSBR/1002 23.01.07
7. 5081 28.12.06 12.00 -do- F21(55)/71/LSBR/1032 24.07.07
The appeal was heard on 21-7-08. The following are present:
Appellant Shri S.C. Gogia Respondents:
Shri B. M. Sareen, DD, DDA.
Shri B.M. Sareen, Dy. Director, DDA submitted written arguments with the following status report:
"The Plot No. B-2/36 Janak Puri was leased out to Shri S. C. Gogia on 23.5.1972. Further as per survey report the premises was misused in the name and style of Sona Dyers and Dry Cleaners w.e.f. 9.12.79 to 23.8.84. Thereafter applicant has filed application for conversion into free hold on 16.12.99. The conversion was not allowed as applicant did not make the payment of misuse charges, which was worked out by the finance wing of Rs. 9,07,314/-. Further as per report of field staff dated 27.4.04 a tailoring shop is running in the premises. Applicant was asked to remove the misuse. Finally applicant has filed a case before Delhi High Court Legal Services Committee and it was informed to DHCSC that in the premises a boutique shop in the name and style of Suvidha Sansar Ladies suit and Garments and which was not tailoring unit and as such it can not be allowed to operate in a Resdl. Premises as per policy of DDA and petitioner can not escape from imposition of misuse charges for the relevant period. However, no settlement has been arrived and DHCSC has closed the case and stated that no settlement is possible in this case. Thereafter Dep't. has raised the demand of misuse charges of Rs. 9,07,314/-. But the same has not been made by the applicant so far. The same was also informed to the applicant with reference to his appeal No. 2935 and RTI ref. LC-19, LG-20, LG-21 vide letter dated 23.12.2007."8
Shri S.C. Gogia submitted that although replies have been given to his RTI applications, he has not obtained the information that he has sought and in the case of several IDs even though offered copies of documents on payment of fees, these have not been provided those documents even after such payment.
Respondent Shri B.M. Sareen submitted that these documents had, in fact, been sent to appellant and he was carrying the copies of the same, which he was willing to hand over to the appellant immediately after the hearing. The confusion seems to have arisen because appellant was abroad and he conceded that mail may have been misplaced during that period. However, appellant reiterated that he had informed the DDA about his visit abroad during this period and had requested that they send him the information subsequent to his return only.
DECISION NOTICE Having heard the parties and examined the record together with the parties we find that the information that has been sought, and is, in fact, held by the Public Authority, has been given to appellant Shri Gogoi in ID. Nos. 3858, 3857 and 3819. Appellant would like action taken on his various letters and requests but has been blandly told that no action has been taken. This then becomes a grievance, no longer a request for information. Although appellant has our fullest sympathies, this Commission is restricted by the application of the RTI which means that only such information as is held by the Public Authority is to be provided. In this case appellant has also been informed of such information sought as is not held by the public authority, no action having been taken on some of the applications of the appellant mentioned ID no 3858. Similarly, in ID No. 3857 it is not possible for the public authority to provide copies of a scheme that has not been formulated.
In File No. CIC/WB/A/2007/006, however, it appears that responses to various RTI applications cited in appellant's prayer in 2nd appeal have not been received by appellant Shri Gogia, even though fees was paid on time.
9Shri B.M. Sareen, Dy. Director, DDA will, therefore, hand over these documents to appellant Shri Gogia immediately after the hearing. Appellant was informed that if he was not satisfied with this he might represent to us forthwith, which he has not done. All the three appeals are, therefore, disposed of accordingly.
Announced in the hearing. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 21-7-2008 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
(Pankaj K.P. Shreyaskar) Joint Registrar 21-7-2008 10