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Central Information Commission

Mr.Dharam Dass Chawla vs Mcd, Gnct Delhi on 9 December, 2011

                         CENTRAL INFORMATION COMMISSION
                             Club Building (Near Post Office)
                           Old JNU Campus, New Delhi - 110067
                                  Tel: +91-11-26161796

                                                     Decision No. CIC/SG/A/2011/002331/15498Penalty
                                                                    Appeal No. CIC/SG/A/2011/002331
Relevant facts emerging from the Appeal:

Appellant                             :      Mr. Dharam Dass Chawla
                                             7966, Arakasha Road,
                                             Pahar Ganj, New Delhi - 110055

Respondent                            :      Mr. Om Prakash,

Deemed PIO & LDC/Record Keeper Municipal Corporation of Delhi O/o The Superintending Engineer (Bldg.), Sadar Pahar Ganj Zone, Idgah Road, Delhi - 110006 RTI application filed on : 10/05/2011 PIO replied on : 22/06/2011 First Appeal filed on : 12/07/2011 First Appellate Authority order of : Not Mentioned Second Appeal received on : 26/08/2011 The information sought: The Appellant asked regarding action report of illegal demolished on Plot No. 7964-7965 Aarakasha Road Pahar Ganj New Delhi after order. The required information as under:

1. Please provide the name, designation, presently posting place, and all particulars of the said officials. Provide the action taken report by the concern officials.

2. Whether the above property related to demolition on 11-08-2011. Department can't do any thing because there is not Police force for support. Provide the complaint/FIR copy of the same.

3. Due to shortage of the time the concern official can not do any thing in respect of the same property. Pl. provide the name, designation and action taken report.

4. What was the reason for 15th month delay for making schedule in respect of action taken.

5. Provide the reason for not taking/issuing any action /order after 25th Months by the department.

6. Provide the name, designation of responsible schedule holder officials after the issued order.

7. Provide the action taken report/information of guilty officials in respect of not taking any action on above property under the section 343 of MCD.

8. If building is not demolished by the department after the passing MCD order. What are the department dead lines for demolishing/sealing said property by the department provide the information.

9. Department can give permission for commercialization in illegal building if not, in which section permission can be given. Pl. provide the action taken such using illegal building for commercial purpose.

The PIO reply:

1. lr sought by the applicant through this point is that no daily ATR of the officials of this office is available in this office however on 29.012007 Sh. Kapil Garg the then J.E.(B) had taken action on ongoing properties in the area, on 28.05.2008 Sh. S.A. Niyazi the then WE. (B) . had take action Page 1 of 5 on P.No, BB Ahoka Basti, Nabi Karim at IIIrd floor one room exist which is completely demolished also one wall near stair case has been removed, Darpan Hotel, Arakasha Road at lVth floor two rooms one toilet/bath has been demolished completely, 10394, Multani Dhanda, Pahar Ganj at lllrd floor root of the room completely dismantled/removed, on 23.07.2008, Sh. Naveen the then J.E. (B) had take action on P.No. 7409, Arakasha Road, Pahar Ganj, Near Dharam Kata, Vandana Hotel. New Delhi, one temporary wooden room at 1st floor was permanently removed, on 27.01.2009 Sh. Purshotam Meena the then J.E. (B) had take action on P.No. BB-350, Ahoka Basti, Nabi Karim in the shape roof of room is demolished completely at llnd floor, 6455, Factory Road, Nabi Karim in the shape roof of a hall is demolished partly at IInd floor.

2. Information sought by the applicant through this point is that the demolition programme is fixed as per routine programme,

3. Information sought by the applicant through this point is that on 21.02.2007 Sh. Kapil Garg the then J.E (B) had take action, on 27.02.2007 no demolition programme taken by this department/office or no demolition programme fixed by this office on the above said date, no daily ATR is available of the officials of this office and no such info is available with this office about the present posting of the then officials.

4. Information sought by the applicant through this point is that demolition programme had fixed as per scheduled programme or as per policy of the department.

5. Information sought by the applicant though this point is that as per available record no such information is available with this office.

6. Information sought by the applicant through this point is that the demolition programme is scheduled for every month by the Ex. Engineer of this office.

7. Information sought by the applicant through this point is mat demolition programme has been taken by the official as per policy of the department.

8. Information sought by the applicant through this point is that the demolition/sealing action taken as per policy of the department

9. Information sought by the applicant through this point is that no commercial activity has been allowed/granted by this office, for commercial activity sealing action against the property has been initiate under section 345A of DM0 Act for misuse Grounds for the First Appeal:

The appellant was received an unsatisfactory reply from the PIO.

Order of the First Appellate Authority (FAA):

Not mentioned.

Ground of the Second Appeal:

The applicant is not satisfied with the PIO reply and unsatisfactory order was passed by the First Appellate Authority.

Relevant Facts emerging during the hearing held on 08/11/2011: The following were present:

Appellant: Mr. Dharam Dass Chawla;

Respondent: Mr. Manoj Kumar, EE on behalf of Mr. V. R. Bansal, PIO & SE;

"The respondent has produced a letter before the Commission in which the PIO/SE(SPZ) has issued a memo to EE(B) SPZ & Deemed PIO on 17/10/2011 for failing to provide the revised information on points 1, 2 & 4 to the Appellant as per the order of the FAA, DC(SPZ) on 02/09/2011. In the said memo the SE has threatened disciplinary action against the deemed PIO. In response to this the present Deemed PIO Mr. Manoj Kumar has brought the information today which has been handed over to the Page 2 of 5 Appellant today. Mr. Manoj Kumar states that the FAA's order was received by the then Deemed PIO/EE(B) Mr. S. K. Aggarwal."

Decision dated 08/11/2011:

The Appeal was allowed.

"The PIO is now directed to provide the information as available on the records on queries 7, 8 & 9 to the Appellant before 30 November 2011.

The issue before the Commission is of not supplying the complete, required information by the then Deemed PIO/EE(B) Mr. S. K. Aggarwal within 30 days as required by the law. From the facts before the Commission it appears that the then deemed 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. He has further refused to obey the orders of his superior officer. The First Appellate Authority has clearly ordered the information to be given. 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. S. K. Aggarwal the then Deemed PIO/EE(B) will present himself before the Commission at the above address on 05 December 2011 at 12.30pm alongwith his written submissions showing cause why penalty should not be imposed on him as mandated under Section 20 (1).

If there are other persons responsible for the delay in providing the information to the Appellant the PIO is directed to inform such persons of the show cause hearing and direct them to appear before the Commission with him. If no other responsible persons are brought by the persons asked to showcause hearing, it will be presumed that they are the responsible persons."

Relevant facts emerging during the hearing held on 05/12/2011: Appellant: Mr. Dharam Dass Chawala;

Respondent: Mr. S.K. Aggarwal, Deemed PIO & EE(B);

"Deemed PIO & EE(B) Mr. S.K. Aggarwal has submitted his written submissions, wherein it is mentioned that the FAA's order dated 02/09/2011 direction the PIO to provide certain information, was received in his office on 08/09/2011, which was received by the Deemed PIO & LDC/Record Keeper Mr. Om Prakash. Deemed PIO Mr. Om Prakash had forwarded the same to the JE(B) Mr. S.L. Meena only on 08/11/2011 i.e. after a lapse of two months. Then the reply was prepared by the JE(B) Mr. S.L. Meena on 16/11/2011 and the requisite information was furnished to the Appellant as per the Commission's order dated 08/11/2011. The Appellant has accepted that he received the complete information vide letter dated 16/11/2011.

In view of this, the Commission has decided to give one opportunity to the Deemed PIO & Record Keeper Mr. Om Prakash. The Commission directs the Deemed PIOs Mr. S.K. Aggarwal and Mr. Om Prakash to present themselves before the Commission at the above address on 09 December 2011 at 11.00am alongwith their written submissions showing cause why penalty should not be imposed on them as mandated under Section 20 (1)."

Relevant facts emerging during the showcause hearing on 09/12/2011:

Respondent: Mr. S.K. Aggarwal, Deemed PIO & EE(B) and Mr. Om Prakash, Deemed PIO & LDC/Record Keeper;

Mr. Om Prakash admits that he received the order of the FAA on 08/09/2011 and did not give it to the holder of the information Mr. S. L. Meena, JE(B) until 08/11/2011. He states that this was an inadvertent error and he did not intend to inconvenience to the Appellant.

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.

Mr. Om Prakash, Deemed PIO & LDC/Record Keeper was only expected to pass on the order of the FAA to the holder of the information which should have been done on the same day. Instead of which he took 60 days to transfer the order, leading to a delay of 60 days in providing the information. The RTI Act has a personal penalty provision for people responsible for the delay in providing the information and the Commission finds it difficult to accept that officers do their duties in other matters and neglect or make mistakes in doing their duty in RTI where there is a personal penalty. No reasonable cause has been advanced by Mr. Om Prakash, Deemed PIO & LDC/Record Keeper for the delay of 60 days hence the Commission levies penalty on him at the rate of `250/- per day of delay as per the provision of Section 20(1) of the RTI Act i.e. `250 X 60 days = `15000/-.

Decision:

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. Om Prakash, Deemed PIO & LDC/Record Keeper. Since the delay in providing the information has been 60 days, the Commission is passing an order penalizing Mr. Om Prakash `15000/ at the rate of `250/- per day under Section 20(1) of the Act.

The Commissioner, Municipal Corporation of Delhi is directed to recover the amount of `25000/- from the salary of Mr. Om Prakash 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. Om Prakash and remitted by the 10th of every month starting from 10 January 2012. The total amount of `15000 /- will be remitted by 10th of March, 2012.

This decision is announced in open chamber.

Notice of this decision be given free of cost to the parties. Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act.

Shailesh Gandhi Information Commissioner 09 December 2011 (In any correspondence on this decision, mention the complete decision number. (BK)) Copies:

1-        The Municipal Commissioner
          Municipal Corporation of Delhi
          04th Floor, Dr. SPM Civic Center,
          New Delhi

2.        Shri Pankaj K.P. Shreyaskar,
          Joint Registrar and Deputy Secretary
          Central Information Commission,
          2nd Floor, August Kranti Bhawan,
          New Delhi - 110066

3.        Mr. V. R. Bansal
          PIO & SE
          Municipal Corporation of Delhi
          O/o The Superintending Engineer (Bldg.),
          Sadar Pahar Ganj Zone, Idgah Road,
          Delhi - 110006



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