Central Information Commission
Kunal Kashyap vs Archaeological Survey Of India on 31 May, 2024
Author: Heeralal Samariya
Bench: Heeralal Samariya
केन्द्रीयसूचनाआयोग
Central Information Commission
बाबागंगनाथमागग,मुननरका
Baba Gangnath Marg, Munirka
नईनिल्ली, New Delhi - 110067
शिकायत संख्या / Complaint No. CIC/ALSOI/C/2023/627378
शिकायत संख्या / Complaint No. CIC/ALSOI/C/2023/636298
शिकायत संख्या / Complaint No. CIC/ALSOI/C/2023/648373
शिकायत संख्या / Complaint No. CIC/ALSOI/C/2023/642099
Shri Kunal Kashyap शिकायतकताा /Complainant
VERSUS/बनाम
PIO ...प्रशतवादीगण /Respondent
Archaeological Survey of India
Date of Hearing : 29.05.2024
Date of Decision : 29.05.2024
Chief Information Commissioner : Shri Heeralal Samariya
Since all the parties are same the aforementioned cases are clubbed
together for final hearing and disposal.
शिकायत संख्या / Complaint No. CIC/ALSOI/C/2023/627378
Relevant facts emerging from complaint:
RTI application filed on : 24.09.2022
PIO replied on : 27.10.2022
First Appeal filed on : 19.06.2023
First Appellate Order on : NA
2ndAppeal/complaint received on : 06.06.2023
शिकायत संख्या / Complaint No. CIC/ALSOI/C/2023/636298
Relevant facts emerging from complaint:
RTI application filed on : 30.08.2022
PIO replied on : 30.09.2022
First Appeal filed on : 12.10.2022
First Appellate Order on : 12.11.2022
2ndAppeal/complaint received on : 27.07.2023
Page 1
शिकायत संख्या / Complaint No. CIC/ALSOI/C/2023/648373
Relevant facts emerging from complaint:
RTI application filed on : 30.05.2022
PIO replied on : NA
First Appeal filed on : 27.07.2022
First Appellate Order on : 28.11.2022
2ndAppeal/complaint received on : 12.12.2023
शिकायत संख्या / Complaint No. CIC/ALSOI/C/2023/642099
Relevant facts emerging from complaint:
RTI application filed on : 17.06.2023
PIO replied on : 17.07.2023
First Appeal filed on : 17.07.2023
First Appellate Order on : NA
2ndAppeal/complaint received on : 30.08.2023
(1) शिकायत संख्या / Complaint No. CIC/ALSOI/C/2023/627378
Information soughtand background of the case:
The Complainant filed an RTI application dated 24.09.2022 seeking information on following points:-
"All paperwork, correspondence, plans, and other documents/emails submitted/received by the sperintending archaeologist (mumbai circle) from either Applicant or the ASI or the NMA with reference to the permission granted in October 2017 to Mr. Hemraj Mundada (Proprietor of M/s Atul Enterprises) under section 20C of the AMASR Act for construction in the regulated zone at the address: Survey No. 208, final plot 79, subplots 4+5a+5b+6, Yerawada, Pune.
If any application for new permission, or a revalidated permission by NMA/ASI, has been made by Mr. Hemraj Mundada, or anyone on his behalf, or anyone else, &/or consequently approved by ASI/NMA. If yes, copies of the same, including if any permission/NOC has been granted. If no, please reply in the negative for point number 2 explicitly stating the same."
The CPIO vide letter dated 27.10.2022 replied as under:-
Page 2 "With reference to your online RTI application registration number ALSOI/R/E/22/00561 received by this office on dated 24.09.2022 on the subject cited above, It is to inform you that, the information sought by you is pertains to third party. Hence, the requisite information will be provided only on consent of the concerned. We have sent a letter seeking consent from third party on date 30.09.2022 but no response has been received yet. You will be informed as soon as the information is received from the third party."
Dissatisfied with the response received from the CPIO, the Complainant filed a First Appeal dated 24.10.2022. In response, CPIO, Archaeological survey of India, Mumbai Circle, dated 14.07.2023 stated as follows:-
"In continuation of the above cited subject and references, It is to inform you that, the information sought by you is pertains to third party. Hence, the third party does not desired to disclose the information. Accordingly, the application is disposed off."
Aggrieved and dissatisfied, the Complainant approached the Commission with the instant Complaint.
Written submission dated 20.05.2024 has been received from the CPIO, ASI, Mumbai Circle and same has been taken on record for perusal.
(2) शिकायत संख्या / Complaint No. CIC/ALSOI/C/2023/636298 Information sought and background of the case:
The Complainant filed an RTI application dated 30.08.2022 seeking information on following points:-
"Copies of Orders given by competent authority/authorities to file FIRs against person(s) who constructed in regulated area, as defined in AMASR Act, without permission, or with falsely obtained permission, or expired permission.
Copies of Details of cases that are in appeal by ASI or the accused person(s) in matter stated above."
The CPIO, Mumbai Circle, ASI vide letter dated 30.09.2022 replied as under:-
"With reference to your online RTI application registration number ALSOI/R/E/22/00478/24 received by this office on dated 26.09.2022 on the subject cited above, It is to inform you that, No such instruction received from the Competent Authority to file FIR against persons in violation of the provision of the AMASR Act."
Dissatisfied with the response received from the CPIO, the Complainant filed a First Appeal dated 12.10.2022. The FAA/ vide order dated 12.11.2022 stated as under:-
Page 3 "Reply: Information sought by you is pertains to Third Party, hence the requisite information will be provided on consent of the concerned."
Aggrieved and dissatisfied, the Complainant approached the Commission with the instant Complaint.
Written submission dated 22.05.2024 has been received from the CPIO, Monuments Section and same has been taken on record for perusal.
Written submission dated 20.05.2024 has been received from the CPIO, ASI, Mumbai Circle and same has been taken on record for perusal.
(3) शिकायत संख्या / Complaint No. CIC/ALSOI/C/2023/648373 Information sought and background of the case:
The Complainant filed an RTI application dated 30.05.2022 seeking information on following points:-
"Archeological Survey of India gives permission NOC for construction in and around protected monuments. ExAga Khan Palace, in Pune. For construction at. No 208, Final plot 79, sub plots 4 plus Sa5b6, Yerawada, Pune, a NOCpermission was issued in Oct 2017.
In the light of above mentioned background, please provide the following information under section 2(f) and 2(j) of the RTI act:
1) A certified copy of the fresh/revalidation permissions granted to M/s Atul Enterprises post October 2020 for construction near Aga Khan Palace (Pune Old permission (2017) attached for reference of party, rule(s), and property address.
2) A certified copy of the rules related to grant of permission in vicinity of Aga Khan in Oct 2017, and in Oct 2021.
3) As per the records, whether there has been any change in the rules or law regarding the requirement to obtain such NOC/permission, since Oct 2017.
Please provide a copy of the same."
Aggrieved by non-receipt of any reply from the CPIO within time limit, the Complainant filed a First Appeal dated 27.07.2022. The FAA vide order dated 28.11.2022 stated as under:-
"1. Information not available.
2. Information not available
3. Information not available"
Aggrieved and dissatisfied, the Complainant approached the Commission with the instant Complaint.
Page 4 Written submission dated 18.05.2024 has been received from the Complainant and same has been taken on record.
Written submission dated 20.05.2024 has been received from the CPIO, ASI, Mumbai Circle and same has been taken on record for perusal.
(4) शिकायत संख्या / Complaint No. CIC/ALSOI/C/2023/642099 Information sought and background of the case:
The Complainant filed an RTI application dated 17.06.2023 seeking information on following points:-
"O/o Superintending Archaeologist (Mumbai Circle). RTI query attached. Please Ignore ALSOI/R/E/23/00362 (or merge with this RTI) as it was inadvertently raised in my fathers name by mistake."
1. Copy of letter/correspondence issued to the builder u/s 11 of the RTI Act for RTI query reference ALSOI/R/E/22/00561
2. Copy of the Reply by the builder refusing consent for processing said information for RTI query reference ALSOI/R/E/22/00561
3. Copy of the Notice of hearing given to me for appeal referenced ALSOI/A/E/22/00267 (if any)
4. Copy of the Reply/replies by concerned 3rd party/parties refusing consent for information sought under ALSOI/R/E/22/00478/24 and it's appeal ALSOI/A/E/22/00209
5. Copy of the Notice of hearing given to me for appeal referenced ALSOI/A/E/22/00209 (if any) The CPIO vide letter dated 17.07.2023 replied as under:-
"With reference to your Online RTI Application no. ALSOI/R/E/23/00363 received by this office on dtd- 20/06/2023 on the subject cited above, it is to inform you that, this office furnishing here the information as under:
Ans.1- Letter issued to concerned 3rd party for ALSOI/R/E/22/00561 is enclosed. (Annexure-1) Ans. 2- Reply by the builder refusing consent is enclosed. (Annexure-II) Ans.3- The First Appellate Authority directed to CPIO to provide requisite information under appeal reference ALSOI/A/E/22/00267. (Copy enclosed annexure-III) Ans.4- Reply by the concerned 3rd party refusing consent under ALSOI/R/E/22/00478/24 is enclosed. (Annexure-iv) Page 5 Ans.5- The First Appellate Authority directed to CPIO to provide requisite information under appeal reference ALSOI/A/E/22/00209. (Copy enclosed annexure-v)"
Dissatisfied with the response received from the CPIO, the Complainant filed a First Appeal dated 17.07.2023 which was not adjudicated by the FAA.
Aggrieved and dissatisfied, the Complainant approached the Commission with the instant Complaint.
Written submission dated 20.05.2024 has been received from the CPIO, ASI, Mumbai Circle and same has been taken on record for perusal.
Facts emerging in Course of Hearing:
Complainant: Mr. Dhruv Goel, Advocate- Authorise Representative of the Appellant/complainant- participated in the hearing.
Respondent: Mr. Manish Rai, Regional Director (W), Competent Authority, Maharashtra, Mr. Vikas Kumar Das, Mumbai Circle, Mr. Shubho Majumdar, FAA, Mumbai Circle, ASI- participated in the hearing through video conferencing.
Mr. Akshat Kaushik, ASI, CPIO and Mr. Aby P. Vaglese, Legal Consultant, National Monuments Authority- participated in the hearing.
Adv. Dhruv Goel submitted that the relevant information in the instant RTI Application has not been furnished to Complainant till date. He further stated that the RTI Application has been transferred from one CPIO to another without any application of mind which thereby has resulted into obstruction in flow of information. He placed on record previous decision of this Commission on similar issue. He requested to direct the PIO to furnish information as sought. He stated that the PIO while following the procedure under Section 11 of the RTI Act failed to redact the personal information of the Complainant. He insisted to impose penalty upon the PIO for violation of provision of the RTI Act.
The Respondent reiterated the averments made in their written submission and stated that the relevant information from their official record has been duly furnished to the Appellant. The Respondent stated that the Regional Director (WR)), ASI Mumbai has been designated as Competent Authority for Maharashtra for receiving and processing the NOC applications in respect of centrally protected monuments in Maharashtra including Mumbai Circle. Mr. Manish Rai, CPIO Regional Director (W), Competent Authority stated that the relevant information from their official record has been duly furnished to the Page 6 Complainant. He stated that as regards the allegation of the Complainant with respect to false affidavit submitted by the Mr. Hemraj Shankarlal Mundada, the NOC issued by the Competent Authority has already lapsed and he has not yet started the construction work. Furthermore, the applicant has again applied for issuance of fresh NOC which has not been considered on account of pendency of Writ Petition No. 12680/2022. He further stated that Complainant has filed various RTI Applications raising same queries/issues and complete information has been provided to the Appellant/Complainant in this regard. He offered inspection of records to the Appellant/Complainant.
Decision:
Since all the parties are same, the aforementioned cases are clubbed together for final hearing and disposal.
Commission has gone through the case records and on the basis of proceedings during hearing observes that appropriate reply has been provided to the Complainant by the CPIO as per the provisions of the RTI Act . Therefore, no malafide intention can be ascribed over the conduct of the CPIO and thus, no penal action is warranted in the matter.
Further the complainant has preferred complaint u/s 18 of the RTI Act and if the complainant is aggrieved with the reply provided by the respondent then the Complainant could have approached the Commission by filing an appeal. The Commission therefore is unable to adjudicate the adequacy of information to be disclosed under section 18 of the RTI Act. In view of the foregoing, this Commission now refers to Section 18 of the RTI Act while examining the complaints and in this regard the Commission refers to the judgment of the Hon'ble Supreme Court of India in Chief Information Commissioner and Another v. State of Manipur and Anr. in Civil Appeal Nos. 10787-10788 of 2011 dated 12-12-2011. The relevant extract of the said decision is set down below:-
"...28. The question which falls for decision in this case is the jurisdiction, if any, of the Information Commissioner under Section 18 in directing disclosure of information. In the impugned judgment of the Division Bench, the High Court held that the Chief Information Commissioner acted beyond his jurisdiction by passing the impugned decision dated 30th May, 2007 and 14th August, 2007. The Division Bench also held that under Section 18 of the Act the State Information Page 7 Commissioner is not empowered to pass a direction to the State Information Officer for furnishing the information sought for by the complainant."
xxx "30. It has been contended before us by the Respondent that under Section 18 of the Act the Central Information Commission or the State Information Commission has no power to provide access to the information which has been requested for by any person but which has been denied to him. The only order which can be passed by the Central Information Commission or the State Information Commission, as the case may be, under Section 18 is an order of penalty provided under Section 20. However, before such order is passed the Commissioner must be satisfied that the conduct of the Information Officer was not bona fide."
31. We uphold the said contention and do not find any error in the impugned judgment of the High court whereby it has been held that the Commissioner while entertaining a complaint under Section 18 of the said Act has no jurisdiction to pass an order providing for access to the information."
xxx "37. We are of the view that Sections 18 and 19 of the Act serve two different purposes and lay down two different procedures and they provide two different remedies. One cannot be a Substitute for the other...."
Thus, the limited point to be adjudicated in aforementioned complaints u/s 18 of RTI Act is whether the information was denied intentionally.
In the light of the above observations, the Commission is of the view that there is no malafide denial of information on the part of the concerned CPIO and hence no action is warranted under section 18 and 20 of the Act.
No further action lies.
Matters are disposed of accordingly.
Heeralal Samariya (हीरालाल सामररया) Chief Information Commissioner (मुख्य सूचना आयुक्त) Page 8 Authenticated true copy (अशिप्रमाशणत सत्याशित प्रशत) S. K. Chitkara (एस. के. शिटकारा) Dy. Registrar (उि-िंजीयक) 011-26186535 Page 9 Recomendation(s) to PA under section 25(5) of the RTI Act, 2005:-
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