Central Information Commission
Mr.Rajeev Chandrasekhar vs Ministry Of Communications And ... on 8 November, 2012
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26101592
File No.CIC/LS/A/2011/003528/BS/1187
Relevant Facts emerging from the Appeal
Appellant : Mr. Rajeev Chandrasekhar
Through authorized representative
M/s Poovayya & Co.,Advocates & Solicitors
F-13, Jungpura Extn, New Delhi-110014
Respondent : CPIO & Director (AS-I)
M/o Communications and IT
Department of Telecommunications
1203, Sanchar Bhawan, 20 Ashoka Road,
New Delhi-110001
RTI application filed on : 24/03/2011
PIO replied : 19/04/2011
First appeal filed on : 17/05/2011
First Appellate Authority order : 28/06/2011
Second Appeal received on : 18/08/2011
Information sought:
1- All documents, papers and file notings since 28 August 2007 leading up to the Press Release of 19 October 2007 regarding Government's acceptance of TRAI's recommendations on 'No cap' and announcement of dual technology policy, M&A norms and rollout obligations etc. 2- All documents papers file notings since 02/11/2007 leading up to the letter by former Hon'ble MoCIT, Shri A. Raja to the Hon'ble Prime Minister of India dated 26/12/2007 which conveyed his meetings with the Hon'ble Minister of External Affairs and the Solicitor General, including decisions taken by Shri A. Raja which were enclosed as annexure. 3- All file notings leading up to affidavit, including the affidavit (as below), filed by the DoT in TDSAT/Delhi High Court mentioned in Shri A. Raja's letter to Hon'ble Prime Minister dated 26/12/2007 in accompanying annexure Section-2- which states, "Application of Tata Telecommunication will also be processed as per the policy and guidelines. An affidavit to this effect will be filled in both TDSAT and Delhi High Court". Please also include any official exchanges/file notings/memos in this regard between the Department of Telecom, the MoCIT and Law Officers of the Government, including references, case for opinion that may have been sent to or via the Ministry of Law & Justice to or for advice for the then Learned Solicitor General of India, including his, other Law Officers' of LA(T's) comments before filing, in preparation of, and leading to the finalization of the said Affidavit. This is a request for both the file notings and a copy of the Affidavit as above.
PIO's reply:
1- The original file where the recommendations dated 28/08/2007 of TRAI leading upto the press release of 19/10/2007 is presently with CBI, investigating the 2G matter. As the Page 1 of 5 matter is under investigation, this office is unable to provide the information sought as these are exempt under Section 8(1)(h) of the RTI Act.
2- No such file notings leading to letter dated 26/12/2007 from the then Hon'ble MOC & IT to Hon'ble Prime Minister is available on record in this office as on date. However, a copy of letter dated 29/03/2011 received from the office of Ld. Attorney General for India in a RTI matter is annexed.
3- The original file regarding the petition no. 286 of 2007 before Hon'ble TDSAT in the matter of 'COAI & Others Vs. Union of India & Ors' and Writ Petition (Civil) no. 9564 of 2007 before Hon'ble High Court of Delhi in the matter of COAI Other Vs. Union of India & Ors' inter alia challenging the decision of Government announced through the press release dated 19/10/2007 including use of dual technology spectrum, were processed, is presently with CBI, investigating the 2G matter. As the matter is under investigation, this office is unable to provide the information sought as these are exempt under Section 8(1)(h)_ of the RTI Act.
Grounds for the First Appeal:
Not furnishing of information sought--which has neither been provided nor refused outright. The information sought is in public interest and should be released to promote transparency, arrest corruption, ensure maximum disclosure and minimum exemption. The CPIO has wrongly cited sections which are not applicable in the current instance to seek unlawful exemption from disclosure of information.
Order of the FAA:
"The decision is based on the following facts:
i) In respect of information asked vide points (i) &(iii) above, the CPIO has indicated that the original files are with CBI and he has claimed exemption under Section 891)(h) of the RTI Act.
ii) In respect of information asked vide point (ii) the CPIO has given the information as available with him.
On going through the replied of the CPIO it is noted that the subject is a matter of investigation. It will be against public interest if information asked for is revealed at this stage. He has rightfully claimed exemption under Section 8(1)(h) of the Act. However, CPIO is directed to further search his office files/documents in order to file if any spare copy of the affidavit filed in the TDSAT/High Court of Delhi is available and if found, the same may be provided to the appellant within 30 days of the date of this letter. The appeal is disposed off accordingly."
Grounds for the Second Appeal:
Because the FAA failed to consider the fact that the CPIO has neither provided the information sought by the appellant nor has the CPIO refused to provide the information on tangible legal grounds, the order of the FA is liable to be set aside. The CPIO and the FAA are authorities constituted under the Act and are bound by the mandates contained in the statue. A refusal to provide information should necessarily be justified under on or many statutory grounds, in the absence of which, a failure to provide information would not only be contrary to law but also arbitrary.
Relevant Facts emerging during the hearing held on 03/10/2012:
The following were present Appellant: Mr. Praveen Sehrawat appellant's representative Respondent: Mr. Rajesh K Soni CPIO Page 2 of 5 "The appellant's representative stated that the Counsel dealing with this matter wanted to make written submissions and the CPIO also requested for a similar opportunity. "Page 3 of 5
Interim Decision Notice dated 03/10/2012:
"The matter is adjourned for 25/10/2012 on 04.00 PM to enable both parties to file their written submissions."
Facts leading to the hearing on 08/11/2012:
No hearing was held on 25/10/2012 and the matter has been re-scheduled for 08/11/2012 at 04.30 PM.
Relevant Facts emerging during the hearing on 08/11/2012: The following were present Appellant: Mr. Akhil Anand appellant's representative Respondent: Mr. Paramjeet Chadha CPIO's representative The CPIO's representative contended that the information sought is exempt under Section 8(1)(h) of the RTI Act as prosecution is pending before CBI Special Court and also under Section 8(1)(c) of the RTI Act as the matter is presently being examined by the Joint Parliamentary Committee and disclosure of any information in this regard would amount to breach of privilege of Parliament. He referred to Lok Sabha Sectt. Office Memorandum dated 22/11/2011 issued in this regard. The CPIO's representative clarified that the said Lok Sabha Memorandum bars disclosure of all information/documents/files/papers provided by DoT to Hon'ble JPC with respect to ongoing investigation(s) relating to 2G spectrum/grant of UAS licences. He contended that the information sought by the appellant squarely falls within the aforesaid exemptions. The appellant's representative fairly submits that the information sought in his RTI application dated 24/03/2011 is akin to that sought in his RTI application dated 30/03/2011 which was decided by the Commission vide appeal No. CIC/LS/A/2011/003529, dated 20/03/2012.
Decision Notice:
The Commission's in its earlier order in appeal No. CIC/LS/A/2011/003529, dated 20/03/2012 has held as under:
"As the 2G spectrum matter is reported to be pending before the Joint Parliamentary Committee, disclosure of any information in this regard thereto would amount to breach of privilege of Parliament. In view of the clear directions of the Joint Parliamentary Committee it is held that the requested information is barred from disclosure under Section 8(1)(c)of the RTI Act. After holding so, I need not dwell on the issue of the applicability of Section 8(1)(h).
To sum up, in view of Office Memorandum dated 22/11/2011, of the Lok Sabha(Joint Parliamentary Committee)(TLS Cell), the requested information is barred from disclosure under Section 8(1)(c). The appeal is, therefore, dismissed."
The ratio of the above decision squarely applies in this case.
The appeal is disposed of accordingly.
This decision is announced in open cone chamber.
Notice of this decision be given free of cost to the parties.
BASANT SETH Information Commissioner November 08th, 2012 Page 4 of 5 (In any correspondence on this decision, mention the complete decision number.) (PS) Page 5 of 5