Central Information Commission
Inderjeet Kaur vs Delhi Development Authority on 14 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/DDATY/A/2017/138232-BJ
Mrs. Inderjeet Kaur
....अपीलकता/Appellant
VERSUS
बनाम
CPIO
Asst. Director (LIG)
Delhi Development Authority,
Housing (LIG) Allotment Branch, 'D' Block
2nd Floor, Vikas Sadan, INA
New Delhi - 110023
... ितवादीगण /Respondent
Date of Hearing : 13.03.2019
Date of Decision : 14.03.2019
Date of RTI application 16.02.2017
CPIO's response 03.05.2017
Date of the First Appeal 05.04.2017
First Appellate Authority's response Not on Record
Date of diarised receipt of Appeal by the Commission 05.06.2017
ORDER
FACTS:
The Appellant vide her RTI application sought information regarding all the details mentioned in the Property Register at serial no. 145 of phase-III (LIG Category Flats), Kondli Gharoli, Delhi, etc. Dissatisfied due to non-receipt of any response within the stipulated time period, the Appellant approached the FAA. The order of the FAA, if any, is not on the record of the Commission. Subsequently, the CPIO, vide its letter dated 03.05.2017 while referring to RTI application dated 16.02.2017 and First Appeal dated 05.04.2017, informed that all relevant record related to flat no. 27 A, Pkt A-3, Kondli Gharoli had been provided to the Estate Officer/East Zone/DDA to ascertain whether any eviction proceedings were pending or contemplated against the owner or not. Hence, the desired information under the RTI would be supplied after the receipt of a report from the Estate Officer.
HEARING:
Facts emerging during the hearing:Page 1 of 5
The following were present:
Appellant: Absent;
Respondent: Mr. Jai Singh, AD (LIG);
The Appellant remained absent during the hearing. The Respondent while tendering apology for the delay in submission of information, informed the Commission that vide their letter dated 03.05.2017, the RTI application / First Appeal had been responded by the CPIO. It was explained during the hearing that this was a matter relating to the dispute in respect of Flat No. 27 A, Pkt A-3, Kondli Gharoli, Delhi for which a complaint had also been lodged with the LG Delhi. On the basis of the orders received from LG, an FIR was lodged and action is being undertaken by the concerned Court. The Commission was also in receipt of a written submission from the Respondent, Assistant Director (H)/LIG dated 19.02.2019 wherein while reiterating the contents of the RTI application, response of the CPIO, it was submitted that a complaint was received in respect of Flat No. 27-A, Pocket A-3, Kondli Gharoli, Delhi which was allotted to Shri Krishan Kumar from the Office of Lt. Governor, Delhi on 24.09.1997. It was further submitted that, on the basis of orders of Lt. Governor, an FIR was lodged with the Police Station, Kotla Mubarakpur on 16.09.1997 by the Assistant Director bearing FIR No. 479/97 dated 16.09.1997. Further, the Appellant moved to the Court for seeking the relief, wherein the Civil Judge, Karkardooma had granted status quo from dispossessing the petitioner from the said property, and further directed not to dispossess the Appellant without due process of law from the suit flat. Accordingly, proceedings for eviction from the suit property under the law have been initiated by the Estate Officer, and the proceedings have not been finalized yet. In the records of DDA, Smt. Inderjeet Kaur is an unauthorized occupant of Flat No. 27-A, Pocket A-3, Ground Floor, Kondli Gharoli, Delhi and that she had no ownership right in the property. Since the Applicant is an unauthorized occupant of the said property and the matter is pending before the Court of Estate Officer, hence, the documents sought cannot be provided at this stage.
The Commission referred to the definition of information u/s 2(f) of the RTI Act, 2005 which is reproduced below:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
"(j) right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........"
In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:
35..... "It is also not required to provide 'advice' or 'opinion' to an applicant, nor required to obtain and furnish any 'opinion' or 'advice' to an applicant. The reference to 'opinion' or 'advice' in the definition of 'information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to Page 2 of 5 the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act."
Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. "....Under the RTI Act "information" is defined under Section 2(f) which provides:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."
7. "....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him."
The Commission felt that correct and timely response was the essence of the RTI mechanism enacted to ensure transparency and accountability in the working of Public Authorities. In this context, the Commission referred to the decision of the Hon'ble Delhi High Court in Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April, 2009) wherein it had been held as under:
"14.......The court cannot be unmindful of the circumstances under which the Act was framed, and brought into force. It seeks to foster an "openness culture" among state agencies, and a wider section of "public authorities" whose actions have a significant or lasting impact on the people and their lives. Information seekers are to be furnished what they ask for, unless the Act prohibits disclosure; they are not to be driven away through sheer inaction or filibustering tactics of the public authorities or their officers. It is to ensure these ends that time limits have been prescribed, in absolute terms, as well as penalty provisions. These are meant to ensure a culture of information disclosure so necessary for a robust and functioning democracy."
Furthermore, the Hon'ble Delhi High Court decision in J P Aggarwal v. Union of India (WP (C) no. 7232/2009 it has held that:
"The PIO is expected to apply his / her mind, duly analyse the material before him / her and then either disclose the information sought or give grounds for non-disclosure."Page 3 of 5
A reference was drawn to the decision of the Hon'ble Delhi High Court in the case of J.P Agrawal v. Union of India-2013(287) ELT25(Del.) wherein it was held as under:
7."it is the PIO to whom the application is submitted and it is who is responsible for ensuring that the information as sought is provided to the applicant within the statutory requirements of the Act. Section 5(4) is simply to strengthen the authority of the PIO within the department; if the PIO finds a default by those from whom he has sought information. The PIO is expected to recommend a remedial action to be taken". The RTI Act makes the PIO the pivot for enforcing the implementation of the Act."
While distinguishing between the duties and responsibilities of the CPIO and the First Appellate Authority, the Commission referred to the recent decision of the Hon'ble High Court of Delhi in the matter of R.K. Jain Vs Union of India, LPA No. 369/2018, dated 29.08.2018, held as under:
"9 . From the above, it is clear that Section 19(1) makes a provision for filing of an appeal if a person is aggrieved by a decision or inaction of the CPIO. The Appellate Authority in sub-section (1) of Section 19 is classified as an officer senior in rank to the CPIO meaning thereby that under the scheme of RTI Act, the CPIO is a different authority or officer different from an Appellate Authority to whom an appeal lies under sub-Section (1) of Section 19................................. That apart, the CPIO being custodian of the information or the documents sought for, is primarily responsible under the scheme of the RTI Act to supply the information and in case of default or dereliction on his part, the penal action is to be invoked against him only. The Appellate Authority is not the custodian of the information or the document. It is only a statutory authority to take a decision on an appeal with regard the tenability or otherwise of the action of the CPIO and, therefore, there is a conscious omission in making the Appellate Authority liable for a penal action under Section 20 of the RTI Act and if that be the scheme of the Act and the legislative intention, we see no error in the order passed by the learned writ Court warranting reconsideration."
With regard to the duties and responsibility of the First Appellate Authority, the Commission referred to the OM No. 20/10/23/2007-IR dated 09.07.2009, wherein 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.
Therefore, in reference to above referred decision of the Hon'ble High Court of Delhi in the matter of R.K. Jain Vs Union of India, LPA No. 369/2018, dated 29.08.2018 and in the light of OM No. 20/10/23/2007-IR dated 09.07.2009, a conclusion can be drawn regarding the distinguishable duties and responsibilities of the CPIO and the FAA whose duties are specifically mentioned and defined in Section 7(1) and 19(6) of the RTI Act, 2005 respectively.
In this regard, the Commission also referred to the OM No. 20/10/23/2007-IR dated 09.07.2009, wherein a categorical and clear distinction has been made regarding the position of the CPIO and the FAA, which is as under:-
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 Page 4 of 5 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. "
The Commission observed that there is complete negligence and laxity in the public authority in dealing with the RTI applications. It is abundantly clear that such matters are being ignored and set aside without application of mind which reflects disrespect towards the RTI Act, 2005 itself. The Commission expressed its displeasure on the casual and callous approach adopted by the Respondent in responding to the RTI application. It was felt that the conduct of respondent was against the spirit of the RTI Act, 2005 which was enacted to ensure greater transparency and effective access to the information.
The Appellant was not present to contest the submissions of the Respondent or to establish the larger public interest in disclosure which outweighs the harm to the protected interests.
DECISION:
Keeping in view the facts of the case and the submissions made by the Respondent, no further intervention of the Commission is required in the matter.
However, considering the lack of awareness amongst the CPIO / FAA in respect of the finer aspects of the implementation of the Act, the Commission instructs the Respondent Public Authority to convene periodic conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities.
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: 14.03.2019
Copy to:-
1. Mr. Rajiv Gandhi, Commissioner (Personnel/Housing), DDA, "B" Block, Ground Floor, Vikas Sadan, INA, New Delhi - 110023 Page 5 of 5