Central Information Commission
Rajan Gupta vs Delhi Development Authority on 24 January, 2020
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/2019/116221-BJ
Mr. Rajan Gupta
....अपीलकता/Appellant
VERSUS
बनाम
1. CPIO
Asst. Director (OSB)
Delhi Development Authority
Old Scheme Branch, Room No. 214
A Block, 2nd Floor, Vikas Sadan
New Delhi - 110023
2. CPIO
Asstt. Director (RTI)
Delhi Development Authority (RTI Implementation and Co-ordination Branch)
C - Block, 3rd Floor, Vikas Sadan, INA
New Delhi - 110023
... ितवादीगण /Respondent
Date of Hearing : 22.01.2020
Date of Decision : 24.01.2020
Date of RTI application 14.11.2018
CPIO's response 01.02.2019
Date of the First Appeal 24.12.2018
First Appellate Authority's response Not on Record
Date of diarised receipt of Appeal by the Commission 08.04.2019
ORDER
FACTS:
The Appellant vide his RTI application sought information on 03 points with regard to the name of allottees and addresses of all properties allotted free of premium by the DDA; name and addresses of all properties initially allotted free of premium that had been converted from Lease hold to Freehold by the DDA and issues related thereto.Page 1 of 8
Dissatisfied due to non-receipt of any response from the CPIO, the Appellant approached the FAA. The CPIO subsequently replied, vide its letter dated 01.02.2019, stated that the information sought pertained to a third party and was exempted u/s 8(1) (j) of the Act. The order of the FAA, if any, is not on record of the Commission.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Rajan Gupta along with Ms. Iti Sharma;
Respondent: Mr. Ramesh Kumar Gupta, SSA / OSB;
The Appellant reiterated the contents of the RTI application and stated that the information was incorrectly denied by the Respondent u/s 8 (1) (j) of the RTI Act, 2005 since it pertained to properties allotted, free of premium. Thus, the Appellant submitted that the information should have been disclosed in the larger public interest as it involved benefits provided out of the Public Exchequer funds. The Respondent present during the hearing stated that since the concerned CPIO was engaged in election duty, he was deputed to appear on behalf of the Department before the Commission. However, on being queried by the Commission regarding the facts of the instant matter and their submissions in response to the contentions of the Appellant, the Respondent appeared totally clueless and was unable to answer any of the queries. The Commission expressed concern over the unpreparedness of the Respondent during the hearing resulting in colossal wastage of time of the Commission in such hearings.
The Commission was in receipt of a written submission from the Respondent (Dy. Director, OSB) dated 20.01.2020 wherein it was stated that the RTI application was replied by the PIO (OSB) vide letter dated 01.02.2019 and 05.02.2019. Vide letter dated 05.02.2019 it was informed to the Appellant that the information was not available in a compiled manner hence the same was denied. In view of the above, it was submitted that since the applicant did not share any information therefore no information was provided to the Appellant. Thus, it was prayed to withdraw the notice issued by the Commission.
The Commission referred to the recent decision of the Hon'ble Supreme Court in the matter of Ferani Hotels Private Limited vs. the State Information Commissioner, Greater Mumbai & Others in Civil Appeal Nos. 9064-9065 of 2018 (Arising out of SLP (C) Nos. 32073-32074/ 2015) dated 27.09.2018, wherein the Hon'ble Court has directed to disclose the building plans, sanctioned plans, and details of commercial establishments in the public domain. The relevant observations made in the decision are mentioned hereunder:
"34. In the end, we would like to say that keeping in mind the provisions of RERA and their objective, the developer should mandatorily display at the site the sanction plan. The provision of sub-section (3) of Section 11 of the RERA require the sanction plan/layout plans along with specifications, approved by the competent authority, to be displayed at the site or such other places, as may be specified by the Regulations made by the Authority. In our view, keeping in mind the ground reality of rampant violations and the consequences thereof, it is advisable to issue directions for display of such sanction plan/layout plans at the site, apart from any other manner provided by the Regulations made by the Authority. This aspect should be given appropriate publicity as part of enforcement of RERA."
Furthermore, the Commission observed that the issues raised in the RTI application pertained to the larger public interest and hence the same should be answered in accordance with the provisions of Page 2 of 8 the Act. Moreover, since the allotment of land on lease was made long back by the Respondent Public Authority there appears no justification to keep it secret at this stage. The Commission finds that the decision of the Hon'ble High Court of Delhi in Jamia Millia Islamia v. Ikramuddin WP (C) No. 5677/2011 dated 22.11.2011, is pertinent in this matter wherein it was observed that:
"The act of entering into an agreement with any other person/entity by a public authority would be a public activity, and as it would involve giving or taking of consideration, which would entail involvement of public funds, the agreement would also involve public interest. Every citizen is entitled to know on what terms the Agreement/settlement has been reached by the petitioner public authority with any other entity or individual."
The Commission also draws reference to the judgment of the Division bench of Jharkhand High Court, in State of Jharkhand v. Navin Kumar SInhga and Anr., AIR 2008 Jharkhand 19 dated 08/08/2007, wherein it was held as under:
"26........The question therefore that falls for consideration is as to whether disclosure of various documents submitted by the bidders is a trade secret or commercial confidence or intellectual property. Prima facie, we are of the view that once a decision is taken in the matter of grant of tender, there is no justification to keep it secret. People have a right to know the basis on which the decision has been taken. If tenders are invited by the public authority and on the basis of tender documents, the eligibility of a tenderor or a bidder is decided, then those tender documents cannot be secret, that too, after the tender is decided and work order is issued on the ground that it will amount to disclosure of trade secret or commercial confidence. If the authorities of Government refuse to disclose the document, the very purpose of the Act will be frustrated. Moreover, disclosure of information, sought for by the petitioner, cannot and shall not be a trade secret or commercial confidence; rather disclosure of such information shall be in public interest, inasmuch as it will show the transparency in the activities of the Government.
27. ......... Since the tender process is completed and contract has been awarded, it will not influence the contract. Besides the above, a citizen has a right to know the genuineness of a document submitted by the tenderer in the matter of grant of tender for consultancy work or for any other work. As noticed above, the tender process is completed and the contract has been awarded, therefore, it will not influence the contract. In any view of the matter, the document in question cannot be treated as trade secret or commercial confidence. In our considered opinion a contract entered into by the public authority with a private person cannot be treated as confidential after completion of contract."
Furthermore, in the instant matter, it cannot be said that the documents sought were in the exclusive custody of the Third Party since it pertained to transfer of property through Lease by way of a contractual arrangement wherein the Respondent Public Authority was also an equal stakeholder being Lessor thereby having access to records. A reference can also be made to the order of the Hon'ble High Court of Nagpur in Sunflag Iron & Steel Company Ltd. V. State Information Commission Writ Petition No. 863/ 2012 dated 14.11.2014 wherein it was allowed to disclose the Memorandum of Understanding to which the Government of Maharashtra was party on the ground that the information was not exclusively related to the third party. The relevant observations of the Court are as under:
"10. After hearing the learned advocates for the respective parties and considering the judgments referred above, in my view, it cannot be said that in each and every case the notice under Section 19(4) of the Act of 2005 is required to be issued to third party and hearing is to be afforded to the third party before any directions for supplying the Page 3 of 8 information are given. The Division Bench of Delhi High Court has considered the scope of Section 11(1) of the Act of 2005 and has laid down that the notice is required to be given to third party in case information prima facie is considered as confidential and if it affects the rights of privacy of the third party.
12. If the impugned order is examined in the light of the above referred judgments, it has to be held that the directions given by the Commission to provide the information as sought vide Item no.5 of the application given by the respondent no.1 cannot be said to be an information which can be considered as confidential and in the exclusive possession of the petitioner, it being a Memorandum of Understanding to which the Government of Maharashtra is a party. However, the information sought by the respondent no.4 vide Item No.4 of his application, cannot be provided to the respondent no.4 without hearing the petitioner and considering its objections. The information sought by the respondent no.4 vide Item no.4 of his application, does not specify the documents in respect of which the information is sought and the directions to provide the information on such vague request may prejudice the petitioner.
13. The reliance placed on behalf of the petitioner on the judgment given in the case of R.K. Jain V/s. Union of India & Anr. (cited supra) is misdirected inasmuch as in this case, the information sought related to the annual confidential reports of the third party which objected to the providing of the information. In the judgment given in the case of Surupsingh Hrya Naik V/s. State of Maharashtra & Ors. (cited supra) again the issue was about giving of information relating to the hospital records. In the judgment given in the case of SKIL Infrastructure Private Limited & Anr. V/s. State Information Commissioner & Ors. (cited supra) the issue about supplying the information which was not exclusively in the custody of the third party and which related to the transactions of the State Government, did not fall for consideration.
The judgments relied on behalf of the petitioner do not assist the petitioner. As far as the facts of the present case are concerned, information sought by the respondent no.4 vide item no.5 of his application is concerning the Memorandum of Understanding to which the Government of Maharashtra is party and it cannot be said that the information is exclusively related to the petitioner. The directions issued by the Commission to provide the information to the respondent no.4 sought vide Item no.5 of his application cannot be faulted with."
The Commission also places reliance on the decision of the Hon'ble High Court of Madras in V.V. Mineral v. Director of Geology and Mining, Writ Petition (MD) No.5427/2007 dated 25/06/2007 wherein the following was held:
"11.Therefore, the principal contention that a right accrues to the petitioner to object may be correct in the context if a document is exclusively submitted by any person to the Government authorities such as property statements, income tax returns etc., but in a case of lease deeds and transport permits which emanate from the statutory authorities and where the petitioner cannot be said to be in exclusive possession, he cannot have a right to object to its being divulged as a third party. The lease deeds pertaining to minerals as well as transport permits are not documents prepared or to be kept by a prospecting mine operator but prospecting a mine or mineral is a privilege conferred by the State to the individuals, who accepts the norms prescribed under Mines and Minerals Act 1957 and the rules framed thereunder.
12. In the present case, when the third respondent as an Information Officer, ordering notice to the petitioner and taking their objection and refusing to furnish the documents sought for by a citizen is clearly beyond the scope of the RTI Act. If the information is Page 4 of 8 available with the State and such information is in exclusive custody of the State, the question of seeking any opinion from the third party on such issues may not arise especially, when they are public documents. By disclosure of such information, no privilege or business interests of the petitioner are affected. On the other hand, such a disclosure may help any party to act upon those documents and take appropriate steps."
Furthermore, the Commission observed that a voluntary disclosure of all information such as lists of allotments, terms & conditions of the lease, complete procedure relating to grant of lease starting from the submission of application till allotment of properties, details of monitoring authority etc that ought to be displayed in the public domain should be the rule and members of public who having to seek information should be an exception. An open government, which is the cherished objective of the RTI Act, can be realised only if all public offices comply with proactive disclosure norms. Section 4(2) of the RTI Act mandates every public authority to provide as much information suo- motu to the public at regular intervals through various means of communications, including the Internet, so that the public need not resort to the use of RTI Act. Thus, information relating to allotment of alternative plots should be disclosed suo motu in the public domain for the ease and convenience of the public at large.
The Hon'ble Supreme Court of India in the matter of CBSE and Anr. Vs. Aditya Bandopadhyay and Ors 2011 (8) SCC 497 held as under:
"37. The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under Clause (b) of Section 4(1) of the Act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption."
The Commission also observes the Hon'ble Delhi High Court ruling in WP (C) 12714/2009 Delhi Development Authority v. Central Information Commission and Another (delivered on: 21.05.2010), wherein it was held as under:
"16.It also provides that the information should be easily accessible and to the extent possible should be in electronic format with the Central Public Information Officer or the State Public Information Officer, as the case may be. The word disseminate has also been defined in the explanation to mean - making the information known or communicating the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet, etc. It is, therefore, clear from a plain reading of Section 4 of the RTI Act that the information, which a public authority is obliged to publish under the said section should be made available to the public and specifically through the internet. There is no denying that the petitioner is duty bound by virtue of the provisions of Section 4 of the RTI Act to publish the information indicated in Section 4(1)(b) and 4(1)(c) on its website so that the public have minimum resort to the use of the RTI Act to obtain the information."
Furthermore, High Court of Delhi in the decision of General Manager Finance Air India Ltd & Anr v. Virender Singh, LPA No. 205/2012, Decided On: 16.07.2012 had held as under:
"8. The RTI Act, as per its preamble was enacted to enable the citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. An informed citizenry and transparency of information have been spelled out as vital to democracy and to contain corruption and to hold Governments and their instrumentalities accountable to the governed.Page 5 of 8
The said legislation is undoubtedly one of the most significant enactments of independent India and a landmark in governance. The spirit of the legislation is further evident from various provisions thereof which require public authorities to:
A. Publish inter alia:
i) the procedure followed in the decision making process;
ii) the norms for the discharge of its functions;
iii) rules, regulations, instructions manuals and records used by its employees in discharging of its functions;
iv) the manner and execution of subsidy programmes including the amounts allocated and the details of beneficiaries of such programmes;
v) the particulars of recipients of concessions, permits or authorizations granted. [see Section 4(1) (b), (iii), (iv), (v); (xii) & (xiii)].
B. Suo moto provide to the public at regular intervals as much information as possible [see Section 4(2)]."
With regard to larger public interest involved in the instant matter, the Commission referred to the decision of the Hon'ble Supreme Court in the matter of Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi: (2012) 13 SCC 61 while explaining the term "Public Interest" held:
"22. The expression "public interest" has to be understood in its true connotation so as to give complete meaning to the relevant provisions of the Act. The expression "public interest"
must be viewed in its strict sense with all its exceptions so as to justify denial of a statutory exemption in terms of the Act. In its common parlance, the expression "public interest", like "public purpose", is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs (State of Bihar v. Kameshwar Singh([AIR 1952 SC 252]). It also means the general welfare of the public that warrants recognition and protection; something in which the public as a whole has a stake [Black's Law Dictionary (8th Edn.)]."
The Hon'ble Supreme Court in the matter of Ashok Kumar Pandey vs The State Of West Bengal (decided on 18 November, 2003Writ Petition (crl.) 199 of 2003) had made reference to the following texts for defining the meaning of "public interest', which is stated as under:
"Strouds Judicial Dictionary, Volume 4 (IV Edition),'Public Interest' is defined thus:
"Public Interest (1) a matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected."
In Black's Law Dictionary (Sixth Edition), "public interest" is defined as follows :
Public Interest something in which the public, or some interest by which their legal rights or liabilities are affected. It does not mean anything the particular localities, which may be affected by the matters in question. Interest shared by national government...."
In Mardia Chemical Limited v. Union of India (2004) 4 SCC 311, the Hon'ble Supreme Court of India while considering the validity of SARFAESI Act and recovery of non-performing assets by Page 6 of 8 banks and financial institutions in India, recognised the significance of Public Interest and had held as under :
".............Public interest has always been considered to be above the private interest. Interest of an individual may, to some extent, be affected but it cannot have the potential of taking over the public interest having an impact in the socio-economic drive of the country..........."
Moreover, similar issues were heard and adjudicated by the Commission in Appeal No. CIC/DOURD/A/2017/148703-BJ dated 07.03.2019 and CIC/LADOF/A/2018/115445-BJ dated 12.09.2019 DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and respecting the spirit of the aforesaid decisions by various Superior Courts as also the larger public interest in disclosure of such information, the Commission instructs the Commissioner (LD) to depute an officer of an appropriate seniority to provide information on all the points of the RTI application to the Appellant as also suo moto disclose the same on their website in accordance with the provisions of the RTI Act, 2005, within a period of 15 days from the date of receipt of this order.
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 accordingly.
(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: 24.01.2020
Page 7 of 8
Copy to:
1. The Lieutenant Governor, Delhi, 6, Raj Niwas Marg, Ludlow Castle, Civil Lines, Delhi 110054 (for information)
2. Vice Chairman, DDA, A-Block, 1st Floor, Vikas Sadan, INA, New Delhi - 110023
3. Mr. Subu R., Commissioner (Land Disposal), DDA, "A" Block, 1st Floor, Vikas Sadan, INA, New Delhi 110023 Page 8 of 8