Files relating to Liberty Cinema, including freehold conversion application, action initiated by lease admin branch, ground rent, etc. - CIC: Fix responsibility for not providing the information in a time bound manner; Suo moto disclose it on DDA website3 Feb, 2020
RTI – 1 File No. CIC/DDATY/A/2018/143838-BJ
The Appellant vide his RTI application sought information regarding the photocopy of entire file/files relating to Liberty Cinema, New Delhi including but not limited to files relating to freehold conversion application, action initiated by lease administration branch, ground rent, etc.
Dissatisfied due to non-receipt of any response of the CPIO, the Appellant approached the FAA. The reply of the CPIO/ order of the FAA, if any, is not on record of the Commission.
RTI – 2 File No. CIC/DDATY/A/2018/143839-BJ
The Appellant vide his RTI application sought information regarding the photocopy of entire file/files relating to Liberty Cinema, New Delhi including but not limited to Noting, Correspondence, Minutes of meetings, etc. The CPIO, vide its letter dated 07.05.2018, stated that the information sought was exempted from disclosure u/s 8(1) (h) of the Act.
Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The order of the FAA, if any, is not on the record of the Commission.
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Rajan Gupta along with Ms. Iti Sharma;
Respondent: Mr. Ramesh Kumar Gupta, SSA / OSB;
The Appellant reiterated the contents of the RTI application and stated that the information sought pertained to the file notings relating to Liberty Cinema which should have been disclosed being a public document. It was stated that no response was provided with reference to the RTI application in Appeal No. CIC/DDATY/A/2018/143838-BJ while the information was incorrectly denied under Section 8 (1) (h) of the RTI Act, 2005, in Appeal No. CIC/DDATY/A/2018/143839-BJ.
The Respondent present during the hearing stated that since the concerned CPIO was engaged in election duty he was deputed to appear on behalf of the Department before the Commission. However, on being queried by the Commission regarding the facts of the instant matter and their submissions in response to the contentions of the Appellant, the Respondent appeared totally clueless and was unable to answer any of the queries.
The Commission observed that the RTI Act, 2005 stipulates time limits in its various provisions relating to responding to RTI Applications, transfer of applications, filing and disposing of first appeal to ensure that a culture of information dissemination is strengthened so that a robust functioning of the democracy gets established. This was recognised by the Hon’ble High Court of Delhi in Mujibur Rehman vs Central Information Commission (W.P. (C) 3845/2007)(Dated 28 April, 2009) wherein it was 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.”
The Commission further 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.”
Moreover, as per the provisions of Section 7 (8) (i) of the RTI Act, 2005, where a request for disclosure of information is rejected, the CPIO shall communicate the reasons for such rejection.
With regard to providing a clear and cogent response to the Appellant, the Commission also referred to the decision of the Hon’ble Delhi High Court in J P Aggarwal v. Union of India (WP (C) no. 7232/2009 wherein it was held that:
“ 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.”
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.”
Furthermore, in OM No. 20/10/23/2007-IR dated 09.07.2009, issued by the M/o Personnel, Public Grievances and Pensions, D/o Personnel and Training, 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.
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. ”
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 realised only if all public offices comply with proactive disclosure norms. Section 4(2) It shall be a constant endeavour of every public authority to take steps in accordance with the requirements of clause (b) of sub-section (1) to provide as much information suo motu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information. of the RTI Act mandates every public authority to provide as much information suomotu 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) Every public authority shall publish within one hundred and twenty days from the enactment of this Act,- (i) the particulars of its organisation, functions and duties; (ii) the powers and duties of its officers and employees; (iii) the procedure followed in the decision making process, including channels of supervision and accountability; (iv) the norms set by it for the discharge of its functions; (v) the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions; (vi) a statement of the categories of documents that are held by it or under its control; (vii) the particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof; (viii) a statement of the boards, councils, committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advice, and as to whether meetings of those boards, councils, committees and other bodies are open to the public, or the minutes of such meetings are accessible for public; (ix) a directory of its officers and employees; (x) the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations; (xi) the budget allocated to each of its agency, indicating the particulars of all plans, proposed expenditures and reports on disbursements made; (xii) the manner of execution of subsidy programmes, including the amounts allocated and the details of beneficiaries of such programmes; (xiii) particulars of recipients of concessions, permits or authorisations granted by it; (xiv) details in respect of the information, available to or held by it, reduced in an electronic form; (xv) the particulars of facilities available to citizens for obtaining information, including the working hours of a library or reading room, if maintained for public use; (xvi) the names, designations and other particulars of the Public Information Officers; (xvii) such other information as may be prescribed and thereafter update these publications every year; and 4(1)(c) Every public authority shall publish all relevant facts while formulating important policies or announcing the decisions which affect public; 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;
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) It shall be a constant endeavour of every public authority to take steps in accordance with the requirements of clause (b) of sub-section (1) to provide as much information suo motu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information. ].”
In the context of disclosure of information relating to a public activity, the Commission referred 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
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.
With regard to the public interest involved in the matter, the Commission referred to the decision of the Hon’ble Supreme Court in the matter of Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi: (2012) 13 SCC 61 wherein while explaining the term “Public Interest” it was held as under:
“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...........”
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the decisions cited above, the Commission instructs the Commissioner (LD) to depute an officer of an appropriate seniority to enquire into the matter and fix accountability and responsibility on the delinquent official for not providing the information in a time bound manner and to provide an updated response to the Appellant as also suo moto disclose the same on their website in accordance with the provisions of the RTI Act, 2005, within a period of 15 days from the date of receipt of this order.
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 Appeals stand disposed accordingly.
Citation: Mr. Rajan Gupta v. Delhi Development Authority in Second Appeal No.(s):- CIC/DDATY/A/2018/143838-BJ+ CIC/DDATY/A/2018/143839-BJ, Date of Decision: 24.01.2020