CIC: FAA has failed to discharge his duty as FAA as per Section 19(1) of the RTI Act 2005, but, acted in the capacity of CPIO, under section 7(1) of the RTI Act 2005, by providing the required information to the appellant - CIC: Order of FAA quashed

FACTS:

1. Vide RTI application dated 01.08.2013, the Appellant sought information on the 5 issues.

2. CPIO, vide its response dated 16.08.2013, has not provide the information.

3. The First Appeal (FA) was filed on 31.08.2013, as the desired information was not provided.

4. First Appellate Authority (FAA), on 21.10.2013, has given the information.

5. Grounds for the Second Appeal filed on 28.11.2013, are contained in the Memorandum of Appeal.

6. HEARING

Appellant opted to be absent despite of our due notice to him. Respondents appeared before the Commission personally and made the submissions at length.

DECISION

It would be seen here that the appellant, vide his RTI Application dated 01.08.2013, sought information from the respondents on five issues. Respondents, vide their response dated 16.08.2013, allegedly not provided the required information to the appellant. Being aggrieved by the aforesaid response, FA was filed by the appellant on 31.08.2013 before the FAA, who vide his order dated 21.10.2013, upheld the decision of CPIO. Hence, a Second Appeal before this Commission.

2. During hearing of the appeal, it is submitted by Sh. Uttam Kumar Kar, US & CPIO, that he is not concerned with the appellant’s RTI application dated 01.08.2013. Therefore, it was transferred to the concerned Public Authority i.e. M/o EF. Further, it is submitted by Sh. Mishra that he, vide his response dated 29.10.2013, has already responded the appellant’s RTI application by stating that the subject matter of the RTI application pertains to particular state. Therefore, appellant should approach the concerned Authority.

3. Further, learned FAA, vide his order dated 21.10.2013, disposed of the FA by observing as under:

“As regards the points mentioned in para 6 of your appeal, the requisite information is as under

(a) & (b): The Ministry of Tribal Affairs has not issued any instructions, order defining

(i) The area of the forest villages falling within the jurisdiction of the Gram Sabhas,

(ii) The forest area of the notified forest villages falling outside the jurisdiction of the Gram Sabhas, and

(iii) The forest area of the notified forest falling within the jurisdiction of the Gram Sabhas for the purpose of the Act.

(iv) As regards providing of the forest maps and other records to Gram Sabhas, it may be stated that Rule 6 of the scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Right) Rules, 2008 Notified by the Ministry of 01.01.2008, already provides that the subDivisional Level Committee shall ineralia provide forest and revenue maps and electoral rolls to the Gram Sabha or the Forest Rights Committee. Further, Rule 12(4) of the these Rules also provides that on a written request of the Gram sabha or the Forest Rights Committee for information, records or documents, the concerned authorizes shall provide an authenticated copy of the same to the Gram Shabha or Forest Rights Committee, as the case may be and facilitate is clarification, if required, through an authorized officer.

(v) The ministry has also not issued any instructions/ orders regarding vesting of rights over forest land under the Panchayati Raj system.

(c)& (d): The Ministry of Tribal Affairs has no infomraiton as to whether any other Ministry/ Department of the Government of India has issued any orders/ instructions regarding the five issues mentioned in para 4 of your appeal.”

4. By virtue of wordings as embedded above by the learned FAA in his order dated 21.10.2013, it is abundantly clear that there is some self contradiction regarding reply given against point no. (i), (ii) & (iii) and it also shows that FAA has acted as CPIO and not as FAA by providing the required information to the appellant. Therefore, the learned FAA has exceeded his jurisdiction by playing the role of CPIO and not as Appellate Authority.

5. In view of the above, it is amply clear that Learned FAA failed to discharge his duty as FAA under the provision of Section 19(1) Any person who, does not receive a decision within the time specified in sub¬section (1) or clause (a) of sub-section (3) of section 7, or is aggrieved by a decision of the Central Public Information Officer or State Public Information Officer, as the case may be, may within thirty days from the expiry of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the Central Public Information Officer or State Public Information Officer as the case may be, in each public authority: Provided that such officer may admit the appeal after the expiry of the period of thirty days if he or she is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. of the RTI Act 2005, but, acted in the capacity of CPIO, under section 7(1) Subject to the proviso to sub-section (2) of section 5 or the proviso to subsection (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9: Subject to the proviso to sub-section (2) of section 5 or the proviso to subsection (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9: of the RTI Act 2005, by providing the required information to the appellant, which is not legally tenable and deserves to be quashed and set aside. As such, it is hereby quashed and set aside. Further, Sh. Gopal Sadhwani, Dy. Secretary & Appellate Authority, is hereby warned not to act as CPIO, under section 7(1) Subject to the proviso to sub-section (2) of section 5 or the proviso to subsection (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9: Subject to the proviso to sub-section (2) of section 5 or the proviso to subsection (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9: of the RTI Act 2005 but as learned FAA under Section 19 (1) of the RTI Act 2005, in future. 3. The Commission heard the submissions made by appellant as well as respondents at length. The Commission also perused the case-file thoroughly; specifically, nature of issues raised by the appellant in his RTI application dated 01.08.2013, respondent’s response dated 16.08.2013, FAA’s order dated 21.10.2013 and also the grounds of memorandum of second appeal.

5. The Commission is of the considered view that the appellant has been deprived by the respondents deliberately from having the benefits of the RTI Act 2005, even after lapse of more than seventeen months period. Thus, the respondents have defeated the very purpose of the RTI Act 2005 for which it was legislated by Parliament of India. As such, the Commission feels that it would be appropriate and even justified to allow the appellant’s second appeal in toto instead of remanding back to learned FAA for disposal of FA which is even more time consuming. Therefore, it is allowed in toto.

6. In view of the above, the respondents (i.e. CPIO of M/o. Environment & Forest) are hereby directed to provide the complete and categorical information, issue-wise, to the appellant as per his RTI application, within 30 days from the date of receipt of this order under intimation to this Commission. If need be, Section 5(4) of the RTI Act 2005 be also invoked in the matter. The Appeal is disposed of accordingly.

 (M.A. Khan Yusufi)

Information Commissioner

Citation: Shri Anil Garg v. M/o. Tribal Affairs in File No. CIC/KY/A/2014/000795