Central Information Commission
Sapna Kalra vs Delhi Development Authority on 20 May, 2020
के न्द्रीय सचू ना आयोग
Central Information Commission
बाबा गंगनाथ मागग, मनु नरका
Baba Gangnath Marg, Munirka
नई निल्ली, New Delhi - 110067
नितीय अपील सख्ं या / Second Appeal No.:- CIC/DDATY/A/2018/161514-BJ
Ms. Sapna Kalra
....अपीलकताग/Appellant
VERSUS
बनाम
CPIO & Dy. Financial Advisor (H)-II
Delhi Development Authority
O/o the Dy. Financial Advisor (H)-I/PIO
C-3/3rd Floor, Vikas Sadan
New Delhi 110023
...प्रनतवािीगण /Respondent
Date of Hearing : 19.05.2020
Date of Decision : 20.05.2020
Date of RTI application 17.07.2018
CPIO's response 02.08.2018
Date of the First Appeal 06.09.2018
First Appellate Authority's response 18.09.2018
Date of diarised receipt of Appeal by the Commission 09.10.2018
ORDER
FACTS:
The Appellant vide her RTI application sought information on 12 points regarding the extract/facts as per which it was found similar /same between her case & the file No M-36 (75) 93/NPRS/ JM placed at correspondence page 672 &673 referred by the FA (H) in the file mentioned in RTI application; ground for treating the case as falling/ coming under the category of DDA Fault; ground taken by the FA (H) at the time of giving of approval for charging the simple interest @ 7% in the aforementioned file no and issues related thereto.
The CPIO, vide its letter dated 02.08.2018 enclosed a reply sent by the AD/EZ/NP dated 31.07.2018 wherein a point wise response was provided. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 14/ 18.09.2018 directed the PIO/ Dy. FA (H) - II to furnish copy of relevant note/ correspondence as sought by the Appellant under point no. 03 of her application which relates to specific file within 15 days.Page 1 of 5
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Adhir Kalra Appellant's representative, through TC; Respondent: Mr. Sushil Kumar Sharma Dy. FA (H)-II/ PIO, Mr. S. C. Gandhi, Dy. FAH, Mr. Virender Arora, Accounts Officer (East Zone) and Mr. Pradeep Wadhwa, AO/ H/C through TC;
The Appellant's representative reiterated the contents of the RTI application and stated that neither was the information sought provided by the CPIO nor was the order of the FAA complied with, till date. He specifically referred to point no 01 of the RTI application and submitted that the extract of the facts whereby similarity was found in their case vis a vis' file No M-36 (75) 93/NPRS/ JM was not provided by the Respondent. Similarly he referred to point 02, 03 and 04 of the RTI application and stated that the ground for treating the case as falling/ coming under the category of DDA Fault; ground taken by the FA (H) at the time of giving of approval for charging the simple interest @ 7% on the aforementioned file no was not provided. In its reply, the Respondent stated that in compliance with the order of the FAA, a reply was provided to the Appellant on point no 03. During the hearing, the Respondent also stated that the Appellant had only deposited 25 % of the cost of the flat whereas full payment was made for the other flat pertaining to which information was sought in the RTI application. It was argued that each case was dealt with on its merits. The Appellant vehemently contested the submission of the Respondent and stated that in the instant matter the issue did not pertain to the payment of cost of flat and that the Respondent was digressing the issues raised in the RTI application.
The Commission referred to the definition of information u/s 2(f) of the RTI Act, 2005 which is reproduced below:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
"(j) right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........"
In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE and Anr. Vs. Aditya Bandopadhyay and Ors), wherein it was held as under:
35..... "It is also not required to provide 'advice' or 'opinion' to an applicant, nor required to obtain and furnish any 'opinion' or 'advice' to an applicant. The reference to 'opinion' or 'advice' in the definition of 'information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act."Page 2 of 5
Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. "....Under the RTI Act "information" is defined under Section 2(f) which provides:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."
7. "....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him."
Having heard both the parties and on perusal of the available records, the Commission at the outset observed that the CPIO/ FAA did not provide a satisfactory response to the Appellant. The provisions of the RTI Act, 2005 and various judgements on the subject matter clearly establishes that it is the duty of the CPIO to provide clear, cogent and precise response to the information seekers. Section 7 (8) (i) of the RTI Act, 2005 also states that where a request for disclosure of information is rejected, the CPIO shall communicate the reasons for such rejection. The Hon'ble Delhi High Court in the matter of J P Aggarwal v. Union of India (WP (C) no. 7232/2009 clearly stated that the PIO acts as the Pivot for enforcing the implementation of the Act. The relevant extracts of the decision are 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."
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 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, Page 3 of 5 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 While observing that in order to deny information under any of the exemption mentioned under Section 8 (1) of the RTI Act, 2005, the Respondent is required to provide justification or establish the reason why such exemption was claimed, 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."
Furthermore, 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 ".....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."
The Commission also noted that it should be the endeavour of the CPIO to ensure that maximum assistance should be provided to the RTI applicants to ensure the flow of information. In this context, the Commission referred to the OM No.4/9/2008-IR dated 24.06.2008 issued by the DoP&T on the Subject "Courteous behavior with the persons seeking information under the RTI Act, 2005" wherein it was stated as under:
"The undersigned is directed to say that the responsibility of a public authority and its public information officers (PIO) is not confined to furnish information but also to provide necessary help to the information seeker, wherever necessary."Page 4 of 5
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission instructs the FAA to re-examine the RTI application/ Appeal as also ensure the compliance of its order dated 18.09.2018 within a period of 30 days from the date of receipt of this order depending upon the condition for containment of the Corona Virus Pandemic in the Country or through email.
The Appeal stands disposed accordingly.
(The Order will be posted on the website of the Commission).
(Bimal Julka) (बिमल जुल्का) (Chief Information Commissioner) (मुख्य सूचना आयुक्त( Authenticated true copy (अनिप्रमानणत सत्यानपत प्रनत) (K.L. Das) (के .एल.िास) (Dy. Registrar) (उप-पंजीयक) 011-26186535/ [email protected] निनांक / Date: 20.05.2020 Page 5 of 5