Information about Operation Parakram was sought - Complainant wanted the present complaint be heard as Second Appeal - CIC: Request could have been conceded to if the remedy of filing a First Appeal was exhausted at the time of preferring the complaint
The Complainant sought information through 17 points regarding year-wise death/injury of army personnel/civilians due to mines and/or mine-laying operations during and after Operation Parakram in the year 2011-2002 till date and about the procurement process of GPS & GIS based Mine Field Recording System.
Grounds for the Complaint:
The CPIO has not provided the desired information.
Relevant Facts emerging during Hearing:
The following were present:-
Complainant: Present in person.
Respondent: Col. R. Balaji, Director RTI(Cell) & CPIO, IHQ of MoD(Army), Maj Dheeraj Pohad, GSO1, Dte. of WE (WE-6), Sena Bhawan and D.K. Das, Dy. Dir., AG/MP5 & 6, R.K. Puram present in person.
CPIO submitted that the RTI Application was received on 12.01.2016 and reply on different points of the RTI Application was provided vide letters dated 22.02.2016, 30.04.2016 and 29.07.2016. He further submitted that the information pertained to very sensitive subject matter, which required some time to process with concerned agency.
Complainant stated that he has not received any information and wants that the present matter be heard as Second Appeal. He further relied on an order of CIC in File No. CIC/KY/C/2016/000015 dated 10.03.2017 to state that a Complaint filed under Section 18 can be heard as an Appeal at the hearing stage and CPIO can be directed for providing the information.
Commission observes that the Complainant had filed the present matter specifically on the grounds of not having received any response after the transfer of RTI Application from CPIO, MoD to the CPIOs of Indian Army, Naval Headquarters and Indian Air Force.
However, it is observed from the perusal of facts on record that the RTI Application was only transferred to CPIO, RTI Cell, Indian Army and not to any other public authority. Further, CPIO’s submission is upheld as regards the delay in providing the reply on the RTI Application.
It may be noted that the Complainant’s request to hear the matter as Second Appeal could have been conceded to if he had exhausted the remedy of filing a First Appeal at the time of preferring the present matter. Complainant in the instant matter has filed a Complaint and had not filed any First Appeal, and the reliance on the above referred CIC order appears to be misplaced as it has been observed therein that ‘First Appeal and Response to the First Appeal is not on record’. Accordingly, it would be appropriate to defer from the rationale followed in the above said CIC order in the light of the reasoning of a judgment of Hon’ble Supreme Court dated 12.12.2011 in Central Information Commissioner vs. State of Manipur wherein it was held as under:
"...28. The question which falls for decision in this case is the jurisdiction, if any, of the Information Commissioner under Section 18 in directing disclosure of information. In the impugned judgment of the Division Bench, the High Court held that the Chief Information Commissioner acted beyond his jurisdiction by passing the impugned decision dated 30th May, 2007 and 14th August, 2007. The Division Bench also held that under Section 18 of the Act the State Information Commissioner is not empowered to pass a direction to the State Information Officer for furnishing the information sought for by the complainant.
30. It has been contended before us by the Respondent that under Section 18 of the Act the Central Information Commission or the State Information Commission has no power to provide access to the information which has been requested for by any person but which has been denied to him. The only order which can be passed by the Central Information Commission or the State Information Commission, as the case may be, under Section 18 is an order of penalty provided under Section 20. However, before such order is passed the Commissioner must be satisfied that the conduct of the Information Officer was not bona fide.
31. We uphold the said contention and do not find any error in the impugned judgment of the High court whereby it has been held that the Commissioner while entertaining a complaint under Section 18 of the said Act has no jurisdiction to pass an order providing for access to the information.
37. We are of the view that Sections 18 and 19 of the Act serve two different purposes and lay down two different procedures and they provide two different remedies. One cannot be a Substitute for the other....”
In view of the foregoing, no further action lies. Complaint is disposed off.
(Divya Prakash Sinha)
Citation: Subhash Chandra Agarwal v. RTI Cell ADG (AE) in File No. CIC/RK/C/2016/000107/SD, Date of Decision:07/04/2017