Appellant: Is there any system of periodical inspection of land leased to the Delhi Gymkhana Club since 1929? if so, the details thereof; periodical intervals in which such inspections had been carried out by any agency etc. - CIC: Provide the information

O R D E R

FACTS:

The Appellant vide his RTI application sought information on 11 points on whether there was any system of periodical inspection of land granted for public utility in the form of lease in perpetuity, if so, the details thereof; periodical intervals in which such inspections had been carried out by the Ministry of Urban Development/ any agency/ individuals appointed on behalf of the MoUD, etc.

The CPIO, vide its letter dated 04.12.2017 stated that the Appellant had not furnished his stake in the property regarding which the information was sought by him hence the Appellant was requested to furnish documents, if any, to establish his stake in the property i.e., Delhi Gymkhana Club within 10 days. Subsequently, the CPIO vide letter dated 02.01.2018 stated that the Third Party i.e., Delhi Gymkhana Club had objected to the disclosure of information as Section 11(1) Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information: of the RTI Act, 2005. Furthermore, with regard to point no. 10 of the letter dated 10.10.2017 it was stated that the issue was taken up with the Club and on receipt of the clarification from them, the Appellant would be informed accordingly. 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. Abhay Kumar Khanna; Respondent: Absent;

The Respondent remained absent during the hearing, despite prior intimation. The Appellant reiterated the contents of the RTI application and stated that the information sought should be disclosed in the larger public interest since the terms and conditions of allotment of leased property to Delhi Gymkhana Club (DGC) and the factual position regarding compliance of the terms as observed by the Respondent Public Authority was not disclosed. While alleging that the DGC was not complying with the lease terms as also their AOA, the Appellant submitted that membership of the Club was denied to applicants as per the whims and fancies of the Administrative Authorities. Furthermore, the order of the FAA dated 14.05.2018 allowing disclosure of all information was also not appropriately complied by the CPIO since only the inspection report of the plot and plan was furnished to him and the queries regarding terms of allotment and its compliance remained unaddressed. He further submitted that contrary to the provisions of Section 6 (2) of the RTI Act, 2005, the Respondent Public Authority directed him to establish his stake in the property of DGC which was in violation of the provisions of the RTI Act, 2005 and in contravention to the larger public interest involved therein.

The Commission was in receipt of a written submission from the Appellant dated Nil wherein it was stated that two replies were received from the CPIO and FAA vide letters dated 14.05.2018 on his Appeal. No substantial resolution was made on the points raised in his RTI dated 30.10.2017 and yet again his stake in the property of Delhi Gymkhana was mentioned. The Appellant submitted that his only stake was as Public apprehending that unfair practices were permitted without any check by MoHUA. It was further stated that inspection report of the plot and plan was furnished to him without commenting on the inspection of all the terms and conditions under which the said lease was given for use as a club. The DGC had on record stated that they were a Private Club and not bound by other considerations. Furthermore, it was confirmed that although L&DO was the Land Owing agency vide letter dated 20.11.2018 the prerogative was given to the club on matters relating to granting membership. Since DGC was not a public office, it became the duty of the controlling agency to ensure fairness, transparency and adherence to AOA and that they had failed to furnish reply and documents as demanded in para 7, 8, 9 and 10 of his RTI. Reply, if any, received from DGC vide letter dated 31.10.2018 had also not been furnished. Hence, it was prayed to direct the CPIO to provide all information in the public interest.

The Commission was also in receipt of a written submission from the Respondent dated 07.11.2019 wherein while re-iterating the reply of the CPIO, it was stated that the FAA vide order dated 14.05.2018 disposed off the First Appeal thereby directing the CPIO to furnish the information available in their office to the Appellant. Accordingly, the Appellant was provided information vide letter dated 14.05.2018. However, the Appellant had now preferred an Appeal before the Commission mentioning that the First Appeal was never decided and no information had been provided to the Appellant. In view of the above, it was stated that the requisite information had already been provided to the Appellant. Hence, it was prayed to exempt his personal appearance before the Commission.

Having heard both the parties and on perusal of the available records, the Commission at the outset observed that the CPIO/ FAA did not provide a satisfactory response to the Appellant. The provisions of the RTI Act, 2005 and various judgements on the subject matter clearly establishes that it is the duty of the CPIO to provide clear, cogent and precise response to the information seekers. Section 7 (8) (i) of the RTI Act, 2005 also states that where a request for disclosure of information is rejected, the CPIO shall communicate the reasons for such rejection. The Hon’ble Delhi High Court in the matter of J P Aggarwal v. Union of India (WP (C) no. 7232/2009 clearly stated that the PIO acts as the Pivot for enforcing the implementation of the Act. The relevant extracts of the decision are 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.”

8………….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 nondisclosure.”

The Commission also observed that as per the provisions of Section 19 (5) of the RTI Act, 2005, in an Appeal proceeding, the onus to prove that a denial of a request was justified shall be on the CPIO. Neither the Respondent present during the hearing nor the CPIO responding to the RTI application, could justify their position as to how the disclosure of information would be in contravention to any of the provisions enshrined under Section 8 of the RTI Act, 2005

While observing that in order to deny information under any of the exemption mentioned under Section 8 (1) of the RTI Act, 2005, the Respondent is required to provide justification or establish the reason why such exemption was claimed, the Commission referred to the decision of the Hon’ble High Court of Delhi in the matter of Dy. Commissioner of Police v. D.K. Sharma, WP (C) No. 12428 of 2009 dated 15.12.2010, wherein it was held as under:

“6. This Court is inclined to concur with the view expressed by the CIC that in order to deny the information under the RTI Act the authority concerned would have to show a justification with reference to one of the specific clauses under Section 8 (1) of the RTI Act. In the instant case, the Petitioner has been unable to discharge that burden. The mere fact that a criminal case is pending may not by itself be sufficient unless there is a specific power to deny disclosure of the information concerning such case.”

Furthermore, the Hon’ble Delhi High Court in the case of Shri Vivek Mittal v. B.P. Srivastava, W.P.(C) 19122/2006 dated 24.08.2009 had upheld the view of the CIC and observed that

 “…..The Act as framed, castes obligation upon the CPIOs and fixes responsibility in case there is failure or delay in supply of information. It is the duty of the CPIOs to ensure that the provisions of the Act are fully complied with and in case of default, necessary consequences follow”.

Furthermore, 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………………………….. 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 Commission also noted that it should be the endeavour of the CPIO to ensure that maximum assistance should be provided to the RTI applicants to ensure the flow of information. In this context, the Commission referred to the OM No.4/9/2008-IR dated 24.06.2008 issued by the DoP&T on the Subject “Courteous behavior with the persons seeking information under the RTI Act, 2005” wherein it was stated as under:

“The undersigned is directed to say that the responsibility of a public authority and its public information officers (PIO) is not confined to furnish information but also to provide necessary help to the information seeker, wherever necessary.”

As regards the contention of the Respondent that the Appellant did not establish his stake in the matter, the Commission referred to a recent decision of the Apex Court in the matter of The Commission observed that in accordance with the decision of the Supreme Court in Civil Appeal Nos. 9064-9065 of 2018 (Arising out of SLP (C) Nos. 32073-32074/ 2015) dated 27.09.2018, wherein it was decided that

15………….In terms of sub-section (2) of Section 6 of the said Act, there is no mandate on an applicant to give any reason for requesting the information, i.e., anybody should be able to obtain the information as long as it is part of the public record of a public authority. Thus, even private documents submitted to public authorities may, under certain situations, form part of public record. In this behalf, we may usefully refer to Section 74 of the Indian Evidence Act, 1872, defining ‘public documents’ as under….. 16. The only exemption from disclosure of information, of whatever nature, with the public authority is as per Sections 8 & 9 of the said Act. Thus, unless the information sought for falls under these provisions, it would be mandatory for the public authorities to disclose the information to an applicant.”

With regard to the public interest involved in the matter, the Commission referred to the decision 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’:

“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....”

In Mardia Chemical Limited v. Union of India (2004) 4 SCC 311, the Hon’ble Supreme Court of India while considering the validity of SARFAESI Act and recovery of non-performing assets by banks and financial institutions in India, recognised the significance of Public Interest and had held as under :

“.............Public interest has always been considered to be above the private interest. Interest of an individual may, to some extent, be affected but it cannot have the potential of taking over the public interest having an impact in the socio-economic drive of the country...........”

In the context of disclosure of information relating to building plans of projects, the Commission refers to a recent decision of the Hon’ble Supreme Court in the matter of Ferani Hotels Private Limited vs. the State Information Commissioner, Greater Mumbai & Others in Civil Appeal Nos. 9064-9065 of 2018 (Arising out of SLP (C) Nos. 32073-32074/ 2015) dated 27.09.2018, wherein the Hon’ble Court has directed to disclose the building plans, sanctioned plans, and details of commercial establishments in the public domain. The relevant observations made in the decision are mentioned hereunder:

“15………….In terms of sub-section (2) of Section 6 of the said Act, there is no mandate on an applicant to give any reason for requesting the information, i.e., anybody should be able to obtain the information as long as it is part of the public record of a public authority. Thus, even private documents submitted to public authorities may, under certain situations, form part of public record. In this behalf, we may usefully refer to Section 74 of the Indian Evidence Act, 1872, defining ‘public documents’ as under:

74. Public documents - The following documents are public documents:-

(1) Documents forming the acts, or records of the acts—

(i) of the sovereign authority,

(ii) of official bodies and tribunals, and

(iii) of public officers, legislative, judicial and executive, [of any part of India or of the Commonwealth], or of a foreign country; [of any part of India or of the Commonwealth], or of a foreign country;"

(2) Public records kept [in any State] of private documents.

16. The only exemption from disclosure of information, of whatever nature, with the public authority is as per Sections 8 & 9 of the said Act. Thus, unless the information sought for falls under these provisions, it would be mandatory for the public authorities to disclose the information to an applicant.”

23. The fate of purchase of land development and investments is a matter of public knowledge and debate. Any judicial pronouncement must squarely weigh in favour of the fullest disclosure, in this behalf……..

24. In the aforesaid circumstances, even by a test of public interest, it can hardly be said that the same would not apply in matters of full disclosure of information of development plans to all and everyone…..

26. Similarly, clause (j) of sub-section (1) of Section 8 of the said Act ex facie would have no relevance. There is no ‘personal information’ of which disclosure is sought. Further it cannot be said that it has no relation to public activity or interest, or that it is unwarranted, or there is an invasion of privacy. These are documents filed before public authorities, required to be put in public domain, by the provisions of the Maharashtra Act and the RERA, and involves a public element of making builders accountable to one and all……

34. In the end, we would like to say that keeping in mind the provisions of RERA and their objective, the developer should mandatorily display at the site the sanction plan. The provision of sub-section (3) of Section 11 of the RERA require the sanction plan/layout plans along with specifications, approved by the competent authority, to be displayed at the site or such other places, as may be specified by the Regulations made by the Authority. In our view, keeping in mind the ground reality of rampant violations and the consequences thereof, it is advisable to issue directions for display of such sanction plan/layout plans at the site, apart from any other manner provided by the Regulations made by the Authority. This aspect should be given appropriate publicity as part of enforcement of RERA”

While relying on the aforesaid judgment of the Apex Court, the Commission in several decisions such as CIC/DOURD/A/2017/148703-BJ dated 06.03.2019 directed the Dy. L&DO, M/o Urban Development to disclose details of lease allotments, terms & conditions of the lease, complete procedure relating to grant of lease, details of monitoring authority etc. of all leased properties as per Section 4 of the RTI Act, 2005. Similarly, in CIC/DDATY/A/2018/115957-BJ dated 17.09.2019 the Commission had allowed disclosure of Building Plan, Maps/details of land use/details of lands allotted, etc. and other relevant documents in respect of M2K Victoria Garden at Azadpur, New Delhi.

Furthermore, even the Hon’ble Supreme Court of India vide its important and significant decision passed by way of resolution dated 03.10.2017 declared that decisions regarding uploading of collegium’s resolutions should be uploaded on website for ensuring transparency of collegium system.

“THAT the decisions henceforth taken by the Collegium indicating the reasons shall be put on the website of the Supreme Court, when the recommendation(s) is/are sent to the Government of India, with regard to the cases relating to initial elevation to the High Court Bench, confirmation as permanent Judge(s) of the High Court, elevation to the post of Chief Justice of High Court, transfer of High Court Chief Justices / Judges and elevation to the Supreme Court, because on each occasion the mater... The Resolution is passed to ensure transparency and yet maintain confidentiality in the Collegium system.”

Moreover, vide its judgment dated 13.11.2019 in Civil Appeal No. 10044 OF 2010 with Civil Appeal No. 10045 OF 2010 and Civil Appeal No. 2683 of 2010, the Hon’ble Supreme Court of India had declared the Chief Justice of India as a Public Authority as per the provisions of the RTI Act, 2005.

DECISION:

Keeping in view the facts of the case and the submissions made by the Appellant, the Commission directs the Respondent (L&DO, M/o HUA) to disclose point-wise information to the Appellant in respect of the queries raised by him regarding the periodic inspections/ reviews as carried out by the M/o Urban Development with respect to the lease granted to the Delhi Gymkhana Club since 1929 and whether it met with the provisions of the original Articles of Association and the action taken thereon alongwith the associated issues within a period of 15 days from the date of receipt of this order respecting the aforesaid judgments as also respecting the spirit of the RTI Act, 2005 and the larger public interest involved therein. Any departure from non-compliance of this decision would attract penal action in accordance with Section 20 (1) of the RTI Act, 2005.

The Commission also 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) 

(Information Commissioner)

Citation: Mr. Abhay Kumar Khanna v. CPIO M/o Housing & Urban Affairs in Second Appeal No.:- CIC/LADOF/A/2018/127307-BJ, Date of Decision: 15.11.2019