Central Information Commission
Subrata Lahiri vs Delhi Development Authority on 24 May, 2019
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.:- CIC/DDATY/A/2017/170187-BJ
Mr. Subrata Lahiri
....अपीलकता /Appellant
VERSUS
बनाम
CPIO
Dy. Director (Bldg.), L & I
Delhi Development Authority
C - 1/104, 1st Floor, Vikas Sadan
New Delhi - 110023
... ितवादीगण /Respondent
Date of Hearing : 22.05.2019
Date of Decision : 24.05.2019
Date of RTI application 20.06.2017
CPIO's response Not on Record
Date of the First Appeal 11.08.2017
First Appellate Authority's response Not on Record
Date of diarised receipt of Appeal by the Commission 09.10.2017
ORDER
FACTS:
The Appellant vide his RTI application sought information on 11 points regarding whether the DDA had issued any letter(s) to the Rajat Jain Cooperative Group Housing Society Limited from 08.12.2016 onwards in the course of processing of the application dated 08.12.2016 submitted by the Secretary of the CGHS, if yes, the certified copies of the letter(s) written (or e-mail sent) by DDA to the above said society and issues related thereto.
Dissatisfied due to non-receipt of any response from the CPIO, the Appellant approached the FAA. The reply of the CPIO/ order of the FAA, if any, is not on the record of the Commission.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Subrata Lahiri;
Respondent: Mr. Mahipal Singh, AE (Bldg.);
The Appellant reiterated the contents of the RTI application and stated that no satisfactory response had been received by him, till date. He further submitted that his RTI application was returned with Page 1 of 6 the Indian Postal Order stating that it was wrongly issued in favour of 'Accounts Officer' DDA with an advice to submit a fresh IPO in favour of DDA. It was further informed that his earlier RTI application dated 30.03.2017 submitted by him addressed to the CPIO, DDA with an IPO in favour of 'Accounts Officer, DDA' was duly accepted by the Respondent Public Authority and therefore he prayed for imposition of penalty on the erring official for returning his RTI application, malafidely. In support of his contention, the Appellant referred to the DoP&T OM dated 05.12.2008 wherein it was categorically stated that "Refusal to accept an application on the ground that the demand draft/banker's cheque/IPO submitted by the applicant has been drawn in the name of the Accounts Officer may amount to refusal to accept the application. It may result into imposition of penalty by the Central Information Commission on the concerned Central Public Information Officer under Section 20 of the Act. All the public authorities should, therefore, ensure that payment of fee by demand draft / banker's cheque/IPO made payable to the Accounts Officer of the public authority is not denied". In its reply, the Respondent submitted that as the IPO issued in favour of Accounts Officer, DDA was not in order, the Appellant was requested to either submit the IPO in favour of 'DDA' or to deposit the receipt fee at cash counter of DDA. Moreover, an inspection was also offered to the Appellant vide their letter dated 27.11.2017 on any working Monday, Tuesday and Thursday between 2:30 to 5 PM. The Respondent further submitted that they were willing to offer an inspection of the documents/records to the Appellant again. The Appellant contested the above averments of the Respondent and submitted that inspite of the queries raised in the RTI application, which were specific and clear, no information was provided. On being queried by the Commission whether he had approached any other higher authority in this regard, the Appellant submitted that he only followed the procedure laid down in the RTI Act, 2005. The Commission however noted that no response had been given to the Appellant in this matter despite sending a fresh IPO on 16.12.2017.
The Commission was in receipt of a written submission from the Appellant dated 15.05.2019 wherein the chronological sequences of the replies were reiterated. He further prayed to the Commission to provide him the desired information as sought in the RTI application and to impose penalty on the CPIO as per the provisions of the RTI Act, 2005 on account of returning the IPO even though it was correctly issued in favour of 'Accounts Officer', DDA and for not providing information within the stipulated time frame.
The Commission referred to the OM issued by the DoP&T, File No. 10/9/2008-IR dated 05.12.2008 specifically addresses the issues raised in the instant matter. The relevant extract of the OM is as under:
"Refusal to accept an application on the ground that the demand draft/ banker's cheque/ IPO submitted by the applicant has been drawn in the name of the Accounts Officer may amount to refusal to accept the application. It may result into imposition of penalty by the Central Information Commission on the concerned Central Public Information Officer under Section 20 of the Act. All the public authorities should therefore ensure that payment of fee by demand draft/ banker's cheque/ IPO made payable to the Accounts Officer of the public authority is not denied."
Furthermore, the Commission also referred to Rule 6 of the Right to Information Rules, 2012, which is narrated as under:-
6. Mode of Payment of fee-
Fees under these rules may be paid in any of the following manner, namely:--
(a) in cash, to the public authority or to the Central Assistant Public Information Officer of the public authority, as the case may be, against a proper receipt; or Page 2 of 6
(b) by demand draft or bankers cheque or Indian Postal Order payable to the Accounts Officer of the public authority; or
(c) by electronic means to the Accounts Officer of the public authority, if facility for receiving fees through electronic means is available with the public authority.
The Commission felt that correct and timely response is the essence of the RTI mechanism enacted to ensure transparency and accountability in the working of Public Authorities. In this context, the Commission referred to the decision of the Hon'ble Delhi High Court in Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April, 2009) wherein it had been held as under:
"14.......The court cannot be unmindful of the circumstances under which the Act was framed, and brought into force. It seeks to foster an "openness culture" among state agencies, and a wider section of "public authorities" whose actions have a significant or lasting impact on the people and their lives. Information seekers are to be furnished what they ask for, unless the Act prohibits disclosure; they are not to be driven away through sheer inaction or filibustering tactics of the public authorities or their officers. It is to ensure these ends that time limits have been prescribed, in absolute terms, as well as penalty provisions. These are meant to ensure a culture of information disclosure so necessary for a robust and functioning democracy."
Furthermore, the Hon'ble Delhi High Court decision in J P Aggarwal v. Union of India (WP (C) no. 7232/2009 it has held that:
"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."
A reference was drawn to the decision of the Hon'ble Delhi High Court in the case of J.P Agrawal v. Union of India-2013(287) ELT25(Del.) wherein it was held as under:
7."it is the PIO to whom the application is submitted and it is who is responsible for ensuring that the information as sought is provided to the applicant within the statutory requirements of the Act. Section 5(4) is simply to strengthen the authority of the PIO within the department; if the PIO finds a default by those from whom he has sought information. The PIO is expected to recommend a remedial action to be taken". The RTI Act makes the PIO the pivot for enforcing the implementation of the Act."
Furthermore, in OM No. 20/10/23/2007-IR dated 09.07.2009, while elaborating on the duties and responsibilities of the FAA, it was stated that:
"3. Deciding appeals under the RTI Act is a quasi judicial function. It is, therefore, necessary that the appellate authority should see that the justice is not only done but it should also appear to have been done. In order to do so, the order passed by the appellate authority should be a speaking order giving justification for the decision arrived at.
Furthermore, the Hon'ble High Court of Delhi in the matter of R.K. Jain vs Union of India, LPA No. 369/2018, dated 29.08.2018, held as under:Page 3 of 6
"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.
Moreover, as regards the plea taken by the Respondent regarding non-submission of fees in the prescribed mode, the Commission referred to the judgment of the Hon'ble Delhi High Court in the matter of Union of India vs. Vansh Sharad Gupta in W.P(C) 4761/2016 wherein it was held that the technical approach undertaken by the Public Authorities for not filing the RTI application in a prescribed form and with the RTI fees could not be allowed in the way of substantial justice. The relevant observations made in the judgment are as under:
"3. In the present writ petition, it has been averred that the respondent never filed an RTI application in the prescribed form and the requisite fee. It is also stated that the respondent did not file the first appeal and hence the second appeal could not have been entertained by the CIC.
4. This Court is not an appellate Court of the CIC. Technical and procedural arguments cannot be allowed to come in the way of substantial justice. The directions given by the CIC in the impugned order are not only fair and reasonable but also promote the concept of rule of law. It is unfortunate that the petitioner did not take the initiative on its own to upload the latest amended bare Acts"
With regard to the 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."Page 4 of 6
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.
......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 Commission also observed that the Hon'ble High Court of Delhi in the matter of R.K. Jain v. V.P. Pandey, CPIO, CESTAT, New Delhi in W.P. (C) No. 4785/ 2017 dated 10.10.2017 adjudicated the correctness of an order of the Commission dated 17.04.2017 whereby the Respondent was cautioned to exercise due care in future and to ensure that correct and complete information is furnished to the RTI applicants. It was decided that:
"2. The grievance of the petitioner is that although the CIC had accepted that there was a delay in providing the necessary information to the petitioner, the CIC had not imposed the penalty as required under Section 20(1) of the Right to Information Act, 2005. It is well settled that imposing of the penalty is a discretionary measure. In Anand Bhushan v. R.A. Haritash: ILR (2012) 4 Delhi 657 a division bench of this Court had considered the question whether the levy of penalty was discretionary and held as under..........
3. In this case it is apparent that the CIC had in its discretion considered that a order cautioning the CPIO would be sufficient. This Court is not inclined to interfere with such exercise of discretion."
Furthermore, the Hon'ble High Court in the matter of R.K. Jain v. CIC and Anr. in W.P.(C) 4152/2017 dated 10.10.2017 had held as under:
"5. The question whether the CIC had the discretion to restrict the penalty or whether penalty as provided under Section 20 of the Act is mandatory, is no longer res integra. The said question was considered by a Division Bench of this Court in Anand Bhushan v. R.A. Haritash: ILR (2012) 4 Delhi 657 and the relevant extract of the said decision is set out below....Page 5 of 6
6. In view of the above, this Court finds no reason to interfere with the discretion exercised by the CIC. The petition is, accordingly, dismissed."
The Commission observed that there is complete negligence and laxity in the public authority in dealing with the RTI applications. It is abundantly clear that such matters are being ignored and set aside without application of mind which reflects disrespect towards the RTI Act, 2005 itself. The Commission expressed its displeasure on the casual and callous approach adopted by the Respondent in responding to the RTI application. It was felt that the conduct of respondent was against the spirit of the RTI Act, 2005 which was enacted to ensure greater transparency and effective access to the information.
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission expressing its displeasure to the CPIO over the casual manner in dealing with the RTI application directs the First Appellate Authority, DDA to enquire into the matter and furnish information to the Appellant as per the provisions of the RTI Act, 2005 within a period of 15 days from the date of receipt of this order besides fixing responsibility and accountability on the concerned CPIO for the errant behavior in disrespecting the provisions of the RTI Act, 2005.
The Commission also instructs the Respondent Public Authority to convene periodic conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities.
The 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: 24.05.2019
Copy to:-
1. Mr. Tarun Kapoor, Vice Chairman, DDA, A-Block, 1st Floor, Vikas Sadan, INA, New Delhi
- 110023 (with the instruction to urgently initiate suitable mechanism to ensure robust and efficacious handling of the RTI applications as per the provisions stipulated in the RTI Act, 2005).
2. Mr. Surajit Jaradhra, Dir. (Bld. ) & FAA, C-1/112, 1st Floor, INA, New Delhi 110023 Page 6 of 6