Central Information Commission
Mr.Anil Dutt Sharam vs Mcd, Gnct Delhi on 11 June, 2012
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26161796
Decision No. CIC/SG/A/2012/000290, 000291, 000292, 000294, 000295, 000296/18637Penalty
Appeal No. CIC/SG/A/2012/000290, 000291, 000292, 000294, 000295, 000296
Relevant Facts emerging from the Appeal
Appellant : Mr. Mr. Anil Dutt Sharma,
D-129 New Seelampur,
Delhi.
Respondent : Mr. Faizan Raza,
JE & Deemed PIO Municipal Corporation of Delhi Office of Superintending Engineer-I, Shahadra South Zone, Karkarduma, Shahdara, Delhi.
RTI application filed on : 31/07/2011 PIO replied : 10/10/2011 First appeal filed on : 23/010/2011 First Appellate Authority order : 15/12/2011 Second Appeal received on : 24/01/2012
Construction is being carried out at following properties or nearby these properties.
S:No Property Photo No 1. C-237 Jhilmil Colony 1537 2. C-219 Jhilmil Colony 1543 3. C-186 or adjoin plot Jhilmil Colony 1541
Construction is being carried out at following properties or nearby these properties.
S:No Property Photo No
1. A-91 Phase 2 Vivek Vihar 1531
2. 121 Partap Khand Vishkarma Nagar 1532
3. B-128 Jhilmil Colony 1534
S:No Property Photo No
1. C-150 Jhilmil Colony 1540
2. Plot in front of C block Triveni Enclave( 1539
Opposite C-150 Jhilmil Colony)
Construction is being carried out at following properties or nearby these properties.
S:No Property Photo No
1. 2304 Gali no 5 Bihari Colony 1500
2. Abutting Plot of 81A Gali No 1 Bihari Colony 1502
3. Plot in Gali No 17 opposite Idgah, Bihari Colony 1503
Sl. Information Sought Reply of the PIO
1. Provide the copy of notice which had been received from above mentioned plot No such information
owners at the time of sanctioning of building plan for construction and the available in the records of
documents stating that the building had been constructed according to the building EE sanctioned plan. a) Sought information not
a) Certificate of JE in compliance of High Court directions in Kalyan Sanstha in records.
Page 1 of 7Social Welfare Organization v. Union of India & ors b) As per para no 1(a).
b) Building plan register and register for watching construction. c) As per para no 1(a).
c) Inspection report which was conducted by JE(7 days), AE (15 days), EE(30 d) As per para no 1(a).
days). e) As per para no 1(a)
d) Reviewed inspection reports of Sup. Engineer which was prepared in two f) As per para no 1(a).
months and Dy Commissioner in three months. g) As per para no 1(a)
e) Copy of notice which had been received from the constructor before 7 days, h) As per para no 1(a)
for commencement of work
f) Fee receipt of Rs 15 that ensure construction work completed up to plinth level.
g) Inspection report of JE conducted ensuring that the construction up to the plinth level is as per sanctioned map.
h) Stacking Charge receipt.
2. If above mentioned documents is not on record then mention under which Sought information is not direction of law their maintenance is exempted. Provide with the names of the available in the shape officers who have failed to discharge official duties and what action can be taken desired by the Appellant. against them.
3. Mention the name of the errant MCD official assigned with the task of As per para no (2) maintenance of the above mentioned documents.
4. Name of the MCD official with the knowledge of the above constructions and Area JE is designated to name of the official with the duty to stop unauthorized construction/contravention stop unauthorized of the sanctioned plan. construction in the area
5. What action had been taken on the E-mail dated 31st July sent by the Appellant As per para no (2) informing about unauthorized construction?
6. Inform when the MCD officials got to know about the above constructions and Sought information is a also the exact plot no if there are any other plots under construction. clarification
7. Exact number of above mentioned references of plots. If the Plot had not been As per para no 4 detected or the office does not deal with the confirmation of address then provide with the name of the office whose duty is to confirm the address and empowered to take action against unauthorized construction.
8. If map had been issued for construction of above mentioned plot the provide me As per para no 1 with the copy of notice under section 6(1) of Delhi Master Plan 2020 or otherwise with the action taking report under section 377(4) of MCD act.
9. Provide with the name of the errant official if the action had not been taken under As per para no 2 Section 377(4) of MCD act.
10. Provide with the name of the official empowered to take action against the plot As per para no 2 constructors and what action is due against those officials.
11. Provide with the name of the JE (ph no) Architect( ph no and address) and AE S Faijan Raza JE, Sh DK who pertain to the above mentioned plots and the exact plot nos. Gupta -9717787756
12. Whether the responsible MCD staff was satisfied under the assigned obligatory No such information duty that the construction at the above mentioned building was being carried out available in the record. as per the Hon'le High Court judgment
13. If the request for construction had not been received from the constructor then As per para no 6 whether the procedure of detection of unauthorized construction and action initiated as per Hon'ble High Court judgment as per available law
14. If not followed provide the name of the officers responsible for non compliance As per para no 6 with the High Court order
15. Whether the construction at above said plots was in the knowledge of DC, SE, FE, No such information and AE. available in the record.
Grounds for the First Appeal:
Incomplete and unsatisfactory information provided by the PIO.
Order of the First Appellate Authority (FAA):
PIO is directed to supply the specific available information, as per RTI application, complaints received of specific date(s) from Delhi police East District with r/o to Appeal No 1238 & 1249 (ID Nos 4169 & 3993).Page 2 of 7
In appeal no 1239, 1240,1241,1242, 1243, 1244, 1245, 1246, 1247, 1248, 1250, 1251, 1252, 1253, PIO is directed to give suitable date and time so that appellant may check and inspect the record, as Appellant requested in his written submission (02 pages) enclosed herewith.
Appeal disposed.
Grounds for the Second Appeal:
Incomplete and unsatisfactory information provided by the PIO. Impose penalty under section 20 for not providing information within the prescribed period.
Relevant Facts emerging during Hearing on 27 April 2012:
The following were present Appellant: Mr. Anil Dutt Sharma;
Respondent: Mr. O. P. Ojha and Mr. D. K. Gupta, AE on behalf of Mr. Sushil Kumar, PIO & SE-I;
"The PIO has stated that the Appellant has primarily sought information about the sanction of plan for a building being constructed and the PIO has stated that there is no information regarding this. The appellant shows that he had given a complaint about this unauthorized construction in July 2011 and the Police has also sent complaint about the same unauthorized construction to MCD. The Appellant argues that since his complaint was with MCD and the police complaint about unauthorized construction was also with MCD the claim that there was no record of any construction was false. The appellant also mentions that he has informed the Area Councilor about this unauthorized construction and he states that the Area Councilor is duty bound to take action and inform the MCD staff about this as per the laws.
It appears that there is great collusive corruption because of which no cognizance is being taken about illegal an unauthorized construction. The Respondents have no explanation to offer why they gave false information to the Appellant that there was no record of any unauthorized construction. The appellant has also produced photographs of illegal construction. The Respondent states that the JE Mr. Faizan Raza was responsible for providing the false information.
The Appellant would like to inspect the relevant records at a time and date which he will fix with the PIO."
Commission's Decision dated 27/04/2012:
The Appeal was allowed.
"The Commission directs Mr. D. K. Gupta, AE to provide the information as per available records to the Appellant before 15 May 2012.
The PIO will facilitate an inspection of relevant records by the Appellant.
The issue before the Commission is of not supplying the complete, required information by the deemed PIO JE Mr. Faizan Raza within 30 days as required by the law. From the facts before the Commission it appears that the PIO is guilty of not furnishing complete information within the time specified under sub-section (1) of Section 7 as per the requirement of the RTI Act. It appears that the PIO's actions attract the penal provisions of Section 20 (1). A showcause notice is being issued to him, and he is directed give his reasons to the Commission to show cause why penalty should not be levied on him.
Mr. Faizan Raza, JE will present himself before the Commission at the above address on 28 May 2012 at 4.00pm alongwith his written submissions showing cause why penalty should not be imposed on him as mandated under Section 20 (1). He will also submit proof of having given the information to the appellant."Page 3 of 7
Relevant Facts emerging during the showcause hearing on 28 May 2012: The following were present Respondent: Mr. D. K. Gupta, AE; Mr. Faizan Raza, JE & Deemed PIO;
The Respondent has not provided any reasonable explanation and has given a letter to the Commission which he claims represents the information which he has provided to the Appellant, The Commission notes that this letter has no letter no. or date . The Respondent has also given to the commission a reply to the show cause notice which does not really explain the position. The Respondent is claiming that the appellant is misleading the Commission. Despite the fact that the appellant has produced the evidence that he the police department has given complaints to the MCD about the illegal construction the deemed PIO Mr. Faizan Raza is claiming that there is no information that is available. When the Commission pointed this out to him he apologizes and states that he will provide the correct and complete information to the Appellant before 30 May 2012. The Commission directs Mr. Raza to come for the showcause hearing on 11 June 2012 at 05.00PM to show cause whey partly under Section 20(1) should not be levied on him. The Commission also notes that he is persistently not giving information and hence the Commission is also thinking of recommending disciplinary action under Section 20(2) of the RTI Act against this.
Relevant Facts emerging during the showcause hearing on 11 June 2012: The following were present:
Appellant: Mr. Anil Dutt Sharma;
Respondent: Mr. D. K. Gupta, AE; Mr. Faizan Raza, JE & Deemed PIO; and Mr. D. K. Gupta, AE;
The PIO has not given complete information which is available on the records even on 31/05/2012. The Appellant also has a number of queries which seek the decision of the PIO about people responsible and whether certain things have been done as per law or not. The appellant states that he wants to submit as follows:
"1. That the Commission had directed to D.K. Gupta, A.E. to provide the information as per the available record and will facilitate an inspection of relevant records to the appellant but neither inspection allowed nor information provided to the appellant.
2. That the J.E. Faizan Raza has furnished new created information on the direction of Commission to the appellant vide letter No.EE/B/I/APIO/SH/S/D/143 dated 31/5/12 that the subject properties of RTI application is booked under DMC Act except regarding properties bearing No.'s121 Partap Khand, vishwkarma Nagar and B-128 Jhilmil Colony.
3. That the PIO has not provided information of the entire RTI application which is available on record.
It is therefore, in view of above and as the directions issued to Mr. D.K. Gupta, A.E. building to provide the information as per the available record to the appellant before 15thMay 2012 but Mr. D.K. Gupta has not provided information till today. It is contempt to us disobedience of CIC order and directions even CIC had given extension of time for providing information. Reference is invited section 23 of RTI Act "No court shall entertain any suit, application or other proceeding in respect of any order made under this Act and no such order shall be called in question other wise than by way of an appeal under this Act" The Commission may issue show cause notice to A.E. D.k.Gupta and may ensure disciplinary action is initiated against the delinquent officers J.E. Faizan Raza and A.E. D.k. Gupta.
Rejoinder of written statement filed by the J.E. Faizan Raza on 28th May 2012.
1. That the reply of the O.P. is evasive to reduce the serious impact on account of his dereliction of his duty. The appellant had mentioned the following properties in the RTI applications where on the Hon'ble Commission issued show cause notice to the J.E. Faizan Raza, addresses Properties as under.
I. C-237 Jhilmil Colony
II. C-219 Jhilmil Colony
III. C-186 or adjoin plot JhilmilColony
IV. A-91 Phase 2 Vivek Vihar
Page 4 of 7
V. B-121 Partap Khand VishkarmaNagar
VI. B-128 Jhilmil Colony
VII. C-150 Jhilmil Colony
VIII. Plot in front of C block TriveniEnclave( Opposite C-150 Jhilmil Colony)
IX. 2304 Gali no 5 Bihari Colony
X. Abutting Plot of 81A Gali No 1Bihari Colony
XI. Plot in Gali No 17 oppositeIdgah, Bihari Colony
It is abundantly clear that all properties address are exact No. of plots except VIII and Xtherefore claim of J.E. Faizan Raza is not considerable.
2. That the reply of point no. 2 is a simple excuse. It cannot reduce the responsibilities of the O.P. to give correct and timely reply. It is again and attempt to ignore and side track the requisite information to frustrate the appellant. The J.E. Faizan Raza has not provided information within timeframe under RTI Act as Mr. Faizan Raza submitted that no information is available did not mean for non availability of record rather this means that "record is not available in the format which is requisitioned by the applicant". The appellant had sought information simply. However J.E. Faizan Raza did not informed to the appellant in which format the information was available with J.E. Faizan Raza. It appears J.E. Faizan Raza has not provided information despite of that information was on record.
3. That it is an afterthought of Faizan Raza and clever way of reflect his responsibilities that requisite information is available on web site whereas he is well aware that this information is not available on the web site.The appellant had logged on web site of M.C.D. but sought information is not available on the web site of M.C.D. J.E. Faizan Raza is misleading to the Commission as stated that the appellant may inspect the record. It is surprised that the J.E. himself did not know his name to whom complaint of appellant was transferred for disposal.
4. That the office of M.C.D. had received exact No.'s of plots of constructions from the police and from the complaints except some cases but J.E. Faizan Raza suppressed the fact from the appellant and replied that no information is on record, even he had not disclosed his name whose duty is to take action against the unauthorized construction.
5. That the J.E. had not provided information within the prescribed time of RTI Act.
6. That the J.E. Faizan Raza has furnished information on the direction of Commission to the appellant vide letter No. EE/B/I/APIO/SH/S/D/143dated 31/5/12 that the subject properties of RTI application is booked under DMCAct now the fact is on record of Commission that Faizan Raza had provided wrong information. However regarding the properties bearing No.'s 121 Partap Khand, vishwkarma Nagar and B-128 Jhilmil Colony has provided wrong information again, for verification of the fact the Commission may investigate the facts or may form a joint inspection team.
7. That the action of the J.E. attracts the penal provisions of Sec. 20(1) and it is fit case to impose the penalty upon the J.E. Fazan Raza."
The Appellant is seeking various points in which there is no information available on the record and it would require the PIO to determine various matters which is not authorized to do nor expected under RTI.
The Commission however directs the Respondent Mr. D. K. Gupta, AE to provide the information point-wise before 30 June 2012.
The Commission asked Mr. Faizan Raza, JE & Deemed PIO to explain why he has not given the information earlier. He states that unauthorized construction has been booked but he has not provided the information. This is not completely true and from the way he has been evading giving the information it appears that there is collusion to ensure that unauthorized construction can be completed and afterwards it can be claimed that the construction are old and occupied. He has given written submissions without explaining why he did not provide the information earlier. The information provided by him on Page 5 of 7 31/05/2012 gives some of the information regarding the properties which shows that some of the properties have been booked for unauthorized construction on 31/05/2012.
Section 20 (1) of the RTI Act states, "Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty five thousand rupees;
Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him:
Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be."
A plain reading of Section 20 reveals that there are three circumstances where the Commission must impose penalty:
1) Refusal to receive an application for information. 2) Not furnishing information within the time specified under sub-section (1) of section 7 - 30 days. 3) Malafidely denying the request for information or knowingly giving incorrect, incomplete or
misleading information or destroying information which was the subject of the request
4) Obstructing in any manner in furnishing the information.
All the above are prefaced by the infraction, ' without reasonable cause'.
Section 19 (5) of the RTI Act has also stated that "In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request."
Thus if without reasonable cause, information is not furnished within the time specified under sub-section (1) of section 7, the Commission is dutybound to levy a penalty at the rate of rupees two hundred and fifty each day till the information is furnished. Once the Commission decides that there was no reasonable cause for delay, it has to impose the penalty at the rate specified in Section 20 (1) of the RTI Act and the law gives no discretion in the matter. The burden of proving that denial of information by the PIO was justified and reasonable is clearly on the PIO as per Section 19(5) of the RTI Act.
The RTI application had been filed on 31/07/2011 and some meaningful information has been provided only on 31/05/2012 to the appellant. The Commission feels that the information was not given earlier to safeguard the unauthorized construction being done. Mr. Faizan Raza, JE & Deemed PIO has been able to offer no reasonable explanation for not providing information available on the records to the Appellant. Since the delay in providing the information has been for over 100 days the Commission is imposing the maximum penalty of `25000/- under Section 20(1) of the RTI Act on Mr. Faizan Raza, JE & Deemed PIO.
Page 6 of 7Decision:
As per the provisions of Section 20 (1) of the RTI Act 2005, the Commission finds this a fit case for levying penalty on Mr. Faizan Raza, JE & Deemed PIO. Since the delay in providing the complete information has been over 100 days, the Commission is passing an order penalizing Mr. Faizan Raza `25000/ which is the maximum penalty under the Act.
The Commissioner, Municipal Corporation of Delhi is directed to recover the amount of `25000/- from the salary of Mr. Faizan Raza and remit the same by a demand draft or a Banker's Cheque in the name of the Pay & Accounts Officer, CAT, payable 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 Delhi - 110066. The amount may be deducted at the rate of `5000/ per month every month from the salary of Mr. Faizan Raza and remitted by the 10th of every month starting from July 2012. The total amount of `25000 /- will be remitted by 10th of November, 2012.
Shailesh Gandhi Information Commissioner 11 June 2012 (In any correspondence on this decision, mention the complete decision number.) (AD) Copies to:
1- The Municipal Commissioner
Municipal Corporation of Delhi
04th Floor, Dr. SPM Civic Center,
New Delhi
2. Mr. Pankaj K.P. Shreyaskar,
Joint Registrar and Deputy Secretary
Central Information Commission,
2nd Floor, August Kranti Bhawan,
New Delhi - 110066
3- Mr. Sushil Kumar
PIO & SE-I
Municipal Corporation of Delhi
Office of Superintending Engineer-I,
Shahadra South Zone, Karkarduma,
Shahdara, Delhi.
Page 7 of 7