Central Information Commission
Shri Ravinder Kumar Mirg vs Ministry Of Home Affairs (Mha) on 30 April, 2009
CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2007/00496 dated 12.4.2007
Right to Information Act 2005 - Section 19
Appellant - Shri Ravinder Kumar Mirg
Respondent - Ministry of Home Affairs (MHA)
Facts:
By an application of 29.11.05 Shri Ravinder Kumar Mirg of Narela, Delhi applied to the Director cum CPIO Rehabilitation Wing, Ministry of Home Affairs, seeking the following information:
"I request for certified copies of the following documents under the Right to Information Act, 2005: -
OUT OF CORRESPODNENCE PORTION: -
1. Pages 37-40 (Letter dated 19.10.05 from your Division to States).
2. Pages 104-106, pages 776-777 (gist of suggestions), pages 735 to 751, pages 822 to 838 (approved draft presentation), pages 917-928.
3. Reference from M/o Law & Justice dated 25.3.2003 page
490.
4. Cabinet Note English dated 17.3.2004 starting at page 529.
5. Cabinet Note dated 5th August. 2005 English Starting at Page 582 Running into 24 pages.
6. DO dated 25.8.2004 from your office to M/o Law & Justice pages 605-606 with 'Statement of Objects and Reasons'.
7. Fresh Statement of Objects and Reasons pages 614-616 dated 19.11.2004.
8. Brief note regarding repeal pages 623-625.
9. Duty Roster message of SO Budget -II dated 7.12.04 page
682.
10. OM dated 31.1.2005 background note pages 716-717/51.
11. OM with 114th Report, 2004 of the Department Related Parliamentary Standing Committee on Home Affairs pages 946-956.
OUT OF NOTING PORTION; -
Pages 11-16, 27-28, 92, 96-104, 111-112, 117-118, 122-127 and 163-190.
1A sum of Rs. 466/- is being deposited in cash through Cash Receipt No. 154 as advance fee."
Following this Shri Mirg issued a reminder on 23.12.05 but on not having received the information sought, moved his first appeal on 17.1.06 before Shri Dinesh Singh, Jt. Secretary (FFR), MHA. In this he has pleaded "that despite lapse of the time stipulated u/s 7 (1) of the RTI Act and a complaint-cum- request-Annexure A-2 the Respondent have not furnished the sought information/certified copies and thereby-within the meaning of Section 7 (2) of the RTI Act are deemed to have refused the request for furnishing the sought information/ certified copies." and prayed as follows:
"1. The Respondent be directed to furnish the information/ certified copies sought vide request dated 24.11.2005 Annexure A-1.
2. The Respondent be directed to strict to the provisions of the RTI Act 2005 while disposing a request under this Act.
3. The Respondent be directed to inform the relevant provisions of the Right to Information Act, 2005 for withholding information, if any.
4. the Respondent be directed to inform the reasons for withholding information so far, if any.
5. The erring officials of the office of the Respondent be appropriately penalized."
Whereupon Shri Dinesh Singh Jt. Secretary, on 16.2.'06 has ordered as follows:
"The file in question is under reference to Ministry of Law since 4.1.2006 (Para 3 refers) and the position was explained to the appellant by the CPIO (Para 9 refers).
Hence, the appeal merits dismissal, with a direction to the Director- cum-CPIO to provide information to the appellant as soon as the file in question is received back from Ministry of Law, within the purview of 'record' and 'right to information' as defined in the act, while strictly following the provisions of the Act and rules/ guidelines framed there under/therefor and while also ensuring that Government work, as per law and under rules, on the file in question, is not held up in any manner whatsoever."
This was followed by a representation of 16.3.2006 by Shri Mirg addressed to CPIO specifically referring to the following:
2"I wrote to your good self on 23.2.2006 for supply of certified copies and inspection of the available portions/ volumes/ parts of the captioned files. Despite lapse of nearly 25 days since then I am yet to receive even a single certified copy or inspection of any portion/ volume/ part of the captioned file(s)."
In response he received another order of 16.5.06 from JS Shri Dinesh Singh, as below:
"2. The appellant Shri R. K. Mirg has been provided certified copies of 181 pages on 21.3.2006 record (Para 5 on page 7/n refers).
3. Certified copies of the notes po9rtion were not provided to hi min view of instructions contained in MHA's OM dated 25.11.2005, wherein it has inter alias been stated that "Information............does not include 'file notings'. (Para 5 & 6 on p.7/n refer).
4. Hence, the appeal merits dismissal, with a direction to the Director-cum-CPIO to provide information to the appellant, if and as requested for in future, within the purview of 'record' and 'right to information' as defined in the Act, while strictly following the provisions of the Act and the rules/ guidelines/ instructions framed there under / therefore, and while also ensuring that Government work, as per law and under rules, on the file in question, is not held by in any manner whatsoever.' It seems that in the meantime, appellant had moved appeals before this Commission, which issued orders in File No. AT/A/2006/00060 dated 6.7.06 ordering a disclosure of file noting. We have on file a letter dated 20.9.'06 from Addl. Registrar, CIC Ms. Nisha Singh seeking a compliance report from Shri Dinesh Singh, Jt. Secretary, MHA. In his letter of 23.10.06 appellant Shri Mirg has complained to CPIO of non-compliance as below:
"Shri J. C. Kataria, Under Secretary, in a sworn writ petition filed before Hon'ble High court of Delhi has averred at page D in the List of Dates And Events against the marked dated 24.11.2005 that the appellate authority has directed the PIO to furnish the extracts of the copies of the documents of the desired file as ought by the Respondent (undersigned) when the said file is received back by the Petitioner Department/ Your office.3
As per information received by the undersigned vide No. 35 (23) 2006-R&SO dated 23.5.2006 under the RTI Act, 2005 the file in question had been received back in the Division on 9.3.2006.
It is submitted that since expiry of time allowed under RTI Act, 2005 w.r.t my request for certified copies dated 24.11.2005 a number of appeals u/s 19 (1) and 19 (3) have been made for supply of thee sought certified copies but till date I have not been supplied certified copies of the noting portion of the file in question. It is strange that your office has failed to act in accordance with the order of the appellate authority ibid. It has resulted in not only a number of avoidable appeals u/s 19 (1) & (3) of the RTI Act, 2005 but also tantamount to defiance of the order of the appellate authority i.e. Joint Secretary (FFR) M/o Home Affairs, Govt. of India, New Delhi.
It is requested that in view of the above submissions the sought copies may kindly be supplied without any further delay."
This is followed by another representation of 2.2.07 pleading as below:
"It is politely submit that now it is over a year since the appellate authority had made the order, your office has failed to supply the sought extracts of the copies of the documents against my request dated 24.11.2005. This tantamount not only to the following provisions of the RTI Act, 2005 on time limit to be respected for supplying the requested documents, but also defiance of the orders of the appellate authority, as referred to in page 'D' or '1' of the copy of your petition in List of Dates and Events against the date 24.11.2005 authenticated by Shri J. C. Kataria, Under Secretary."
Finally appellant has moved a second appeal before us with the following prayer:
"a) Delay in filing this appeal u/s 19 (3) may kindly be condoned.
b) The Respondent may be directed to furnish the balance of information sought by the appellant as per request dated 24.11.2005 (Annexure A-1).
c) The fee amounting to RS. 466/- submitted by the appellant for certified copies on 24.11.2005 may kindly be ordered to be refunded.
d) The erring officials may be appropriately penalized u/s 20 (1) and/ or 20 (2) of the RTI Act, 2005.
e) This appeal may kindly be heard at an early date."4
In response to our appeal notice Shri R. C. Nayak, Dy. Secy. MHA through his letter of 24.2.2007 has requested that the appeal not be condoned as follows:
"The appellant is making applications and appeals one after the another despite the fact that he has been clearly informed by the CPIO and by the appellate authority also that the noting portion cannot be provided to him. Despite knowing the provisions of the RTI Act and instructions of the Government of India on the subject, he is coercing the Government to part with the protected documents. This aspect may kindly be taken note of while condoning the delay in filing the appeal."
He has, however, agreed to the refund of any excess amount of fee charged from appellant Shri Mirg as below:
"181 pages of correspondence portion have already been supplied to the appellant. The remaining amount, after deducting the charges for the 181 pages, can be refunded to him."
However, on the substance of the appeal, which is perusal of file, noting CPIO has taken the following plea:
"The file which the appellate wants to peruse or/ have extracts of the notings from, is a policy file on the enactment of the Displaced Persons Claims and Other Laws repeal Act, 2005. It contains all matters relating to Cabinet Note, Communications with State Governments, proceedings of the Department Group and proceedings of the Parliamentary Standing Committee i.e. (all Cabinet Parliamentary Committee and Parliamentary matters). The said information are exempted from Section 8 of the Right to Information Act, 2005 the operative part which inter alia envisages as under:-
1. Notwithstanding anything contain in this act, there shall be no obligation to give any citizen,---
(c) information disclosure of which would cause a breach of privilege of Parliament or the State Legislature.
(i) Cabinet papers including records or deliberations of the Council of Ministers, Secretaries and other officers;
"Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete or over.5
Provided further that those matters which come under the exemption specified in the section shall not be disclosed."
Therefore, the Respondent No. 1 has failed to appreciate and consider that the said information, which come within the purview of exempted information as, stated in the Section 8 of the Act.
In this connection, copies of the instructions issued by the MHA on 25th November, 2005 and 19th July, 2006, which explain the Government position in regard to supply of copies of file notings are annexed at Annexure 'A'.
It may also be added that the orders dated 30.6.2006 and 6.7.2006 of the Hon'ble CIC have been challenged by the answering Respondent in Delhi High Court, which has granted stay of operation of these orders. A copy of the order passed by the Court in this regard is annexed at Annexure 'B'. The case is now listed for hearing on 20.7.2009."
The appeal was heard on 23.4.2009. The following are present:
Appellant Shri Ravinder Kr. Mirg Respondents Shri A. K. Goyal, Jt. Secy. MHA Shri K. B. Singh, U.S., MHA Shri S. C. Dewan, S.O., MHA Shri Goyal Jt. Secretary invited our attention to the order of the High Court of 4.10.2006, which reads as follows:WP (C) No. 15379/2006
The petitioner has impugned the directions of the Central Information Commission regarding the entitlement of the petitioner to have the copies of the notings. The petitioner has also impugned the other matter regarding the entitlement of the petitioner for the information sought by him.
Issue show cause notice to the respondents as to why rule not issued on petitioner taking steps within three days, returnable on 15.12.2006.CM No. 12333/2006
Issue notice to the respondents on petitioner taking steps within three days, returnable on 15.12.2006.
6Considering the facts and circumstances the operation of the impugned orders dated 30.6.2006 and 6.7.2006 are stayed till the next date of hearing."
The directions impugned are those in the following files:
CIC/AT/A/2006/00105 dated 30.6.06 CIC/AT/A/2006/00060 dated 6.7.2006 The order of 6.7.06 which specifically directs disclosure of file noting which is the same as that sought in the present case was, therefore, stayed by order of the High Court of Delhi of October 4, 2006. Appellant Shri Mirg has submitted that what he is seeking is a legal opinion obtained by the Ministry of Home Affairs on the subject on file, which is of vital importance to him in pursuing his own case.
DECISION NOTICE As agreed by both parties, the bulk of information sought by appellant has been provided to him except one substantive portion, which is the copy of the file noting. In this context, we have already held in our decision announced on 29.1.2007 in the case of Pyare Lal vs. Ministry of Railways in File No. CIC/OK/A/2006/00154 that file noting is not in itself information that is exempt from disclosure. The O.M. of the MHA of 25.11.2005 issued on the advice of DoPT and preceding the decision of the Full Bench of this Commission, cited above, is, therefore, invalid and should be withdrawn/ modified forthwith under intimation to Shri Pankaj K.P. Shreyaskar. On the other hand the plea taken by respondent before the High Court is not a plea of general exemption of file noting, but instead seeks exemption from disclosure under sub-
sections (c ) and (i) of Section 8(1) of the Act.
This has been verified from the copy of the Writ Petition perused during the hearing. On this matter, the High Court of Delhi has issued a stay order in its 7 order of 4.10.2006 "till the next date of hearing" Subsequently in an order of 22.3.09 Justice S Ravinder Bhat has on the same Writ Petition directed as follows:
"At the request of counsel for the petitioner, adjourned to 20th July, 2009. Interim order shall continue."
In light of the above, we hereby direct CPIO Rehabilitation Wing of MHA as follows:
1. As submitted by appellant Shri Mirg in the hearing what he seeking is specifically the file noting on the legal opinion obtained by the MHA on the subject on file. The disclosure of file noting in this case stands stayed up to 20.7.'09 by the order of 27.3.09 of S Ravinder Bhat J.. of the High Court of Delhi at New Delhi in WP (C) No. 15379/2006. In view of this a decision on this issue will be taken on 31.7.2009 at 10.30 a.m. when parties will be present together with the appropriate documents.
2. Under Sub-Section (8)(a) (iv) of Sec 19 of the RTI Act, 2005, Ministry of Home Affairs is directed to modify / withdraw OM No. A-
43020/42/2005-Ad.I of 25.11.2005, within ten working days of the date of receipt of this Decision Notice.
3. The amount in excess of the fee that can be charged for information supplied to appellant Shri Mirg, be refunded to Shri Mirg within ten working days from the date of issue of this Decision Notice.
Reserved in the hearing, this decision is announced on this 30th day of April, 2009, in open chamber, after receiving copies of the orders of the High Court of Delhi subsequent to the orders of 4.10.2006 Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 30.4.2009 8 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
(Pankaj Shreyaskar) Joint Registrar 30.4 .2009 9