Central Information Commission
Ajit Kumar Singh vs Directorate Of Estates on 18 March, 2019
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/DOEST/A/2018/133823-BJ
Mr. Ajit Kumar Singh
....अपीलकता /Appellant
VERSUS
बनाम
1. CPIO
Directorate of Estates
Ministry of Urban Development
602, Sansadiye Sondh
New Delhi - 110001
2. CPIO & the Dy. Director of Estates
Dte. Of Estates, Nirman Bhawan
New Delhi - 110108
... ितवादीगण /Respondent
Date of Hearing : 15.03.2019
Date of Decision : 18.03.2019
Date of RTI application 27.12.2017
CPIO's response 05.02.2018
Date of the First Appeal 12.03.2018
First Appellate Authority's response Not on Record
Date of diarised receipt of Appeal by the Commission 29.05.2018
ORDER
FACTS:
The Appellant vide his RTI application sought information on 05 points regarding the Bunglows allotted to Lok Sabha/ Rajyasabha Members, Ministers, Speaker of Lok Sabha from 2000 till date of filing RTI application, details of the MPs to whom the accommodation was allotted, details of MPs who had paid the rent on such properties and issues related thereto.
The CPIO and Dy. Director (Rent), Directorate of Estates vide its letter dated 05.02.2018 provided partial response on point no. 02 and 04 of the RTI application. Dissatisfied by the response, the Appellant approached the FAA. The order of the FAA, if any, is not on the record of the Commission.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Ajit Kumar Singh through VC;
Respondent: Mr. Ashok Kumar, ADE;Page 1 of 9
The Appellant reiterated the contents of the RTI application and stated that incomplete and incorrect information was provided to him on an issue which related to the larger public interest of transparency and accountability in the process of allotment of residential accommodation to MPs/ Ministers. He also referred to the reply of the CPIO wherein denial of information under Section 7 (9) was incorrectly claimed in order to deny the information. The First Appeal was also not responded, till date. He therefore prayed for imposition of penalty against the CPIO. In its reply, the Respondent reiterated the reply of the CPIO and submitted that the information pertaining to the current Members of Parliament was available on their website. However, he submitted that the process of computerization of records of erstwhile MPs was in process. It was also stated that as per the extant guidelines, nominations for contesting elections could only be filed after obtaining a "No Dues Certificate" from them. He admitted that the issues raised by the Appellant indeed pertained to the interest of public at large and submitted that due to election related duties and assignments they were unable to expedite the action regarding compilation and disclosure of the information. On being queried as to why the information sought was not disclosed since December 2017, no precise reply could be offered.
Having heard both the parties and perusal of the available records, the Commission observed that the issues raised in the RTI application pertained to the interest of the public at large and details regarding policy for calculation of rent from the MPs, complete details of the MPs to whom notices were issued for non-payment of rent, number of bungalows vacated / in possession of the defaulting MPs etc. should be disclosed in the public domain for its access by the public at large.
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...."
The Commission observed that a voluntary disclosure of all information 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 Page 2 of 9 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.
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. 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;Page 3 of 9
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)]."
As regards complete transparency and sanctity in the disclosure of antecedents of MPs/ Ministers the Commission also referred to the decision of the Hon'ble Supreme Court of India in the decision of R.B.I. and Ors. V. Jayantilal N. Mistry and Ors, Transferred Case (Civil) No. 91 of 2015 (Arising out of Transfer Petition (Civil) No. 707 of 2012 decided on 16.12.2015 wherein it was held as under:-
"The ideal of 'Government by the people' makes it necessary that people have access to information on matters of public concern. The free flow of information about affairs of Government paves way for debate in public policy and fosters accountability in Government. It creates a condition for 'open governance' which is a foundation of democracy."
The Law Commission of India in their 170th Report on "Reform of Electoral Laws" (1999) had stated that "3.1.2.1.On the parity of the above reasoning, it must be said that if democracy and accountability constitute the core of our constitutional system, the same concepts must also apply to and bind the Political Parties which are integral to parliamentary democracy. It is the Political Parties that form the Government, man the Parliament and run the governance of the country. It is therefore, necessary to introduce internal democracy, financial transparency and accountability in the working of the Political Parties. A political party which does not respect democratic principles in its internal working cannot be expected to respect those principles in the governance of the country. It cannot be dictatorship internally and democratic in its functioning outside.
The importance of transparency and sanctity in the election process and disclosure of particulars of candidates representing citizens in Parliament was recognised by the Hon'ble Supreme Court of India in its landmark decision of Union of India v. Association of Democratic Reforms and Anr. CIVIL APPEAL NO.7178 OF 2001 dated 02.05.2002, wherein it was held as under:
"To maintain the purity of elections and in particular to bring transparency in the process of election, the Commission can ask the candidates about the expenditure incurred by the Political Parties and this transparency in the process of election would include transparency of a candidate who seeks election or re-election. In a democracy, the electoral process has a strategic role. The little man of this country would have basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted."
Furthermore, in the aforementioned decision, the Hon'ble Supreme Court of India had issued the following directions to the Election Commission of India in para 48 of its judgement:
"The Election Commission is directed to call for information on affidavit by issuing necessary order in exercise of its power under Article 324 of the Constitution of India from each candidate seeking election to Parliament or a State Legislature as a necessary part of his nomination paper, furnishing therein, information on the following aspects in relation to his/her candidature:-
(1) Whether the candidate is convicted/acquitted/discharged of any criminal offences in the past• if any, whether he is punished with imprisonment or fine?Page 4 of 9
(2) Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the Court of law. If so, the details thereof (3) The assets (immovable, movable, bank balance etc.) of a candidate and of his/her spouse and that of dependants.
(4) Liabilities, if any, particularly whether there are any over dues of any public financial institution or Government dues.
5) The educational qualifications of the candidate."
In the decision of the Honble Supreme Court of India in PUCLv. Union of India and Anr. WRIT PETITION (CIVIL) NO.490 OF 2002 with WRIT PETITION (CIVIL) No.509 OF 2002 and WRIT PETITION (CIVIL) No. 515 of 200, Shah J. in his judgement in para B of page 5 while deciding a writ petitions filed under Article 32 of the Constitution of India challenging the validity of the Representation of the People (Amendment) Ordinance, 2002 (No.4 of 2002) ("Ordinance" for short) promulgated by the President of India on 24th August 2002 had held as under:
"There was an era when a powerful or a rich or a strong or a dacoit aged more than 60 years married a beautiful young girl despite her resistance. Except to weep, she had no choice of selecting her mate. To a large extent, such situation does not prevail today. Now, young persons are selecting mates of their choice after verifying full details thereof. Should we not have such a situation in selecting a candidate contesting elections? In a vibrant democracy is not required that a little voter should know bio-data of his/her would be Rulers, Law-makers or Destiny-maker of the Nation?"
Furthermore, Justice Shah in his judgement in the afore-mentioned decision while dealing with the significance of information regarding antecedents of candidates constesting elections had held as under:
"Secondly, we would reiterate that the primary duty of the Judiciary is to uphold the Constitution and the laws without fear or favour, without being biased by political ideology or economic theory. Interpretation should be in consonance with the Constitutional provisions, which envisage a republic democracy. Survival of democracy depends upon free and fair election. It is true that the elections are fought by political parties, yet election would be a farce if the voters are unaware of antecedents of candidates contesting elections. Their decision to vote either in favour of `A' or `B' candidate would be without any basis. Such election would be neither free nor fair."
The Hon'ble Supreme Court of India in the decision of PUCL v. Union of India and Anr while holding Section 33-B of the Representation of the People (3rd Amendment) Act, 2002 to be illegal, null and void had relied upon the recommendations of the National Commission to Review the Working of the Constitution in its report submitted in March 2002 wherein recommendations were made that political parties as well as individual candidates be made subject to a proper statutory audit of the amounts they spend. Furthermore, observations of the Law Commission of India in their 170th Report on "Reform of Electoral Laws" (1999) were also relied by the Hon'ble Supreme Court in its aforesaid decision. The relevant para of the Law Commission's afore-said report is given below :
6.3.1.There has been mounting corruption in all walks of public life. People are generally lured to enter politics or contest elections for getting rich overnight. Before allowing people to enter public life the public has a right to know the antecedents of such persons. The Page 5 of 9 existing conditions in which people can freely enter the political arena without demur, especially without the electorate knowing about any details of the assets possessed by the candidate are far from satisfactory. It is essential by law to provide that a candidate seeking election, shall furnish the details of all his assets (movable/immovable) possessed by him/her, wife-husband, dependant relations, duly supported by an affidavit.".
Moreover, it is felt that elected representatives continuously perform public functions and play a critical role in governance and socio-economic development in the country. The RTI Act, 2005 was enacted to ensure smoother and greater access to information, maximum disclosure and minimum exemptions and effective mechanism for access of information.
Subordination of right to privacy to the right to information due to larger public interest The importance of right to information and subordination of right to privacy to the right to information due to larger public interest had been recognized by P. Venkatarama Reddi J. in his judgement in People's Union for Civil Liberties (PUCL) and Anr. V. Union of India and Anr. WRIT PETITION (CIVIL) NO.490 OF 2002 with WRIT PETITION (CIVIL) No.509 OF 2002 AND WRIT PETITION (CIVIL) No. 515 of 2002 wherein it had been held as under:
"By calling upon the contesting candidate to disclose the assets and liabilities of his/her spouse, the fundamental right to information of a voter/citizen is thereby promoted. When there is a competition between the right to privacy of an individual and the right to information of the citizens, the former right has to be subordinated to the latter right as it serves larger public interest. The right to know about the candidate who intends to become a public figure and a representative of the people would not be effective and real if only truncated information of the assets and liabilities is given"
Furthermore, Justice M.B. Shah in its decision in the aforementioned case of People's Union for Civil Liberties (PUCL) and Anr. V. Union of India and Anr. WRIT PETITION had held as under:
"In our view, the aforesaid decision nowhere supports the said 30 contention. This Court only considered--to what extent a citizen would have right to privacy under Article 21. The court itself has carved out the exceptions and restrictions on absolute right of privacy. Further, by declaration of a fact, which is a matter of public record that a candidate was involved in various criminal cases, there is no question of infringement of any right of privacy. Similarly, with regard to the declaration of assets also, a person having assets or income is normally required to disclose the same under the Income Tax Act or such similar fiscal legislation. Not only this, but once a person becomes a candidate to acquire public office, such declaration would not affect his right of privacy. This is the necessity of the day because of statutory provisions of controlling wide spread corrupt practices as repeatedly pointed out by all concerned including various reports of Law Commission and other Committees as stated above."
Right to know Antecedents of Candidates part of Fundamental Right The Hon'ble Supreme Court of India in the decision of Association for Democratic Reforms (AIR 2002 SC 2112) while holding that right to know the antecedents of candidates as a fundamental right of citizens under Article 19 (1) (a) of the Constitution of India, 1950 had held as under:
"If right to telecast and right to view sport games and the right to impart such information is considered to be part and parcel of Article 19(1)(a), we fail to understand why the right of a Page 6 of 9 citizen/voter - a little man - to know about the antecedents of his candidate cannot be held to be a fundamental right under Article 19(1)(a). In our view, democracy cannot survive without free and fair election, without free and fairly informed voters. Votes cast by uninformed voters in favour of X or Y candidate would be meaningless. As stated in the aforesaid passage, onesided information, disinformation, misinformation and non- 12 information, all equally create an uninformed citizenry which makes democracy a farce. Therefore, casting of vote by a misinformed and non-informed voter or a voter having one-sided information only is bound to affect the democracy seriously. Freedom of speech and expression includes right to impart and receive information which includes freedom to hold opinions. Entertainment is implied in freedom of "speech and expression" and there is no reason to hold that freedom of speech and expression would not cover right to get material information with regard to a candidate who is contesting election for a post which is of utmost importance in the democracy."
In the decision of People's Union for Civil Liberties (PUCL) (AIR 2003 SC 2363) Hon'ble Mr. Justice M.B. Shah, in his judgment held as follows "(D) The contention that as there is no specific fundamental right conferred on a voter by any statutory provision to know the antecedents of a candidate, the directions given by this Court are against the statutory provisions is, on the face of it, without any substance. In an election petition challenging the validity of an election of a particular candidate, the statutory provisions would govern respective rights of the parties. However, voters' fundamental right to know the antecedents of a candidate is independent of statutory rights under the election law. A voter is first citizen of this country and apart from statutory rights, he is having fundamental rights conferred by the Constitution. Members of a democratic society should be sufficiently informed so that they may cast their votes intelligently in favour of persons who are to govern them. Right to vote would be meaningless unless the citizens are well informed about the antecedents of a candidate. There can be little doubt that exposure to public gaze and scrutiny is one of the surest means to cleanse our democratic governing system and to have competent legislatures.
(E) It is established that fundamental rights themselves have no fixed content, most of them are empty vessels into which each generation must pour its content in the light of its experience. The attempt of the Court should be to expand the reach and ambit of the fundamental rights by process of judicial interpretation. During the last more than half a decade, it has been so done by this Court consistently. There cannot be any distinction between the fundamental rights mentioned in Chapter III of the Constitution and the declaration of such rights on the basis of the judgments rendered by this Court."
Being of this view, he declared Section 33-B as illegal, null and void."
The Hon'ble Supreme Court of India in the decision of Resurgence India Vs. Election Commission of India & Anr. WRIT PETITION (CIVIL) NO. 121 OF 2008 had held as under:
"Thus, this Court held that a voter has the elementary right to know full particulars of a candidate who is to represent him in the Parliament and such right to get information is universally recognized natural right flowing from the concept of democracy and is an integral part of Article 19(1)(a) of the Constitution. It was further held that the voter's speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is a must. Thus, in unequivocal terms, it is recognized that the citizen's right to know of the candidate who represents him in the Parliament will constitute an integral part of Article Page 7 of 9 19(1)(a) of the Constitution of India and any act, which is derogative of the fundamental rights is at the very outset ultra vires The Hon'ble High Court of Bombay in the decision of Kashinath J. Shetye v. Public information Officer and Ors. WP No.1 of 2009 dated 20. 01.2009 had held as under:
"When one becomes a public servant, he in strict sense becomes a public servant and as such, every member of public, gets a right to know about his working, his honesty, integrity and devotion to duty. In fact, nothing remains personal while as far as the discharging of duty. A public servant continues to be a public servant for all 24 hours. Therefore, any conduct/ misconduct of a public servant even in private, ceases to be private. When, therefore, a member of a public, demands an information as to how many leaves were availed by the public servant, such information though personal, has to be supplied and there is no question of privacy at all. Such supply of information, at the most, may disclose how sincere or insincere the public servant is in discharge of his duty and the public has a right to know"
The Hon'ble High Court of Allahabad (Lucknow Bench) vide Writ Petition No. 3262 (MB) of 2008, in the case of Public Information Officer, Chief Minister's Office, Civil Secretariat, Government of U.P Vs State Information Commission and Others, in the context of disclosure of benefits from the discretionary fund of Chief Minister had held as under
"There cannot be a bar nor any impediment can be placed in disclosing such an information which relates to the benefits extended from the discretionary fund of the Chief Minister to the persons entitled to such benefit. Chief Minister's Discretionary Fund is a name, but none the less it is a public fund and public money. The citizens have a right to know that in what manner, the said discretionary fund has been used and utilized.
.............Before parting, we will also like to put on record that all the information regarding the Chief Minister's Discretionary Fund, including the information regarding the persons, who have been granted any amount from the discretionary fund with their category and the amount paid/disbursed, may be treated such an information, which requires to be made available to the public in terms of Section 4 of the Act. The public has a right to know about the disbursement of the Chief Minister's Discretionary Fund to the persons and the amount which has been paid with a further information that whether the amount has been properly utilized in the given time or no"
The aforementioned decision was pronounced in the context of disclosure of benefits from the discretionary fund of Chief Minister and the present matter involved disclosure of details pertaining to allotment of residential accommodation to Members of Parliament, Ministers, etc Therefore, both the matters involve use of Public Funds for official purposes, the decision in the aforementioned matter can be applied in the instant matter as well.
Moreover, in the instant matter the First Appeal was also not answered which was a violation of Section 19 (6) of the RTI Act, 2005. In this context, the Commission referred to the OM No. 20/10/23/2007-IR dated 09.07.2009 issued by the DOPT wherein while elaborating on the duties and responsibilities of the FAA, it was stated that:
"3. Deciding appeals under the RTI Act is a quasi judicial function. It is, therefore, necessary that the appellate authority should see that the justice is not only done but it should also appear to have been done. In order to do so, the order passed by the appellate authority should be a speaking order giving justification for the decision arrived at.Page 8 of 9
5..............................The Act provides that the first appellate authority would be an officer senior in rank to the CPIO. Thus, the appellate authority, as per provisions of the Act, would be an officer in a commanding position vis a vis' the CPIO. Nevertheless, if, in any case, the CPIO does not implement the order passed by the appellate authority and the appellate authority feels that intervention of higher authority is required to get his order implemented, he should bring the matter to the notice of the officer in the public authority competent to take against the CPIO. Such competent officer shall take necessary action so as to ensure implementation of the RTI Act. "
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission instructs the Dir. of Estates and FAA to examine the First Appeal and provide all information sought by the Appellant as also upload the same on their website for the ease and convenience of the public at large within a period of 30 days from the date of receipt of this order failing which penal action under the provisions of the RTI Act, 2005 could be initiated.
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: 18.03.2019
Copy to:-
1. Secretary, Ministry of Urban Development, Room No. 122-C, Nirman Bhawan, Maulana Azad Road, New Delhi-110011
2. Mr. Naveen Kr Yadav, Dir. of Estates & FAA, Room No. 439C, Nirman Bhawan, New Delhi - 110108 Page 9 of 9