Information regarding land cost for a particular area allotted by the DDA to a builder was denied u/s 8(1) (j) - CIC: There is complete negligence and laxity in the public authority in dealing with the RTI applications; Reflects disrespect towards the RTI

O R D E R

FACTS:

The Appellant vide his RTI application sought information regarding certified copy of land cost for the area (as mentioned in the RTI application) allotted by the DDA to builder for construction of shops, etc. The CPIO, vide its letter dated 10.03.2017 denied disclosure of information under Section 8(1) (j) of the RTI Act, 2005. Dissatisfied with the CPIO’s 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: Absent;

Respondent: Mr. M. K. Sharma, Asst. Dir.;

The Appellant remained absent during the hearing. The Respondent informed the Commission that the initial RTI application was responded by the CPIO on 10.03.2017 denying disclosure of information under Section 8 (1) (j) of the RTI Act, 2005. The First Appeal also remained unattended initially. Subsequently, vide letter dated 05.10.2017 the reply of the CPIO was upheld. Attention of the Commission was also drawn to the correspondence dated 27.02.2017 from the Building Section of DDA which was also closely related to the information sought by the Appellant. However, while tendering unconditional apology for the delay in providing information, on receipt of the notice of hearing in respect of Second Appeal from the Commission, vide its letter dated 07.02.2019, the information regarding the permission granted for amalgamation of Commercial Plot No. 15 – 16, Sector – 6, Dwarka Phase - I in respect of M/s Supreme Structure Private Limited was provided. The Commission was also in receipt of a written submission from the Respondent dated 07.02.2019 addressed to the Appellant wherein it was submitted that the FAA had directed him to issue required information to the Appellant. In compliance of the direction of the FAA, the CPIO had provided additional information to the Appellant wherein it was informed that the amalgamation of Commercial Plot No. 15-16, Sector6, Dwarka, Phase-I had already been granted to M/s Supreme Structure Private Limited on payment of amalgamation charges/additional premium of land amounting to Rs. 22,19,633/- which had been deposited by lessee vide bank challan No. 010300 dated 01.07.1998. Photocopy of the said bank challan and permission letter of amalgamation dated 15.09.1998 were enclosed for the Appellant’s reference.

The Commission referred to the definition of information u/s 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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; of the RTI Act, 2005 which is reproduced below:

“information” means any material in any form, including records, documents, memos, emails, 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) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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; 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 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) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, 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; which provides: “information” means any material in any form, including records, documents, memos, emails, 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.”

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.”

Furthermore, in OM No. 20/10/23/2007-IR dated 09.07.2009, 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.

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 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, the building plans and details of commercial establishments should be placed in the public domain. The relevant observations made in the decision are mentioned hereunder:

“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.”

Attention of the Respondent was also drawn towards the decision of the Commission in Appeal No.CIC/DOURD/A/2017/148703-BJ dated 07.03.2019 in the case of Mr. Gopal Prasad Vs. CPIO, Dy. Land & Development Officer, Ministry of Urban Development and in Appeal No. CIC/DDATY/A/2017/156714-BJ dated 18.02.2019 in the case of Mr. Nitin Soam Vs. CPIO, Dy. Director (Bldg.) C&I, New Delhi, and Appeal No. Appeal No.:- CIC/DDATY/A/2017/135717- BJ dated 14.02.2019 in the case of Mr. Sharvan Kumar Goyal Vs. CPIO, Dy. Director (CL), wherein it was directed to implement the decision of the Supreme Court dated 27.09.2018 as referred above in letter and spirit, and also to place all details relating to sanction /layout /building plans of commercial establishments in public domain respecting the decision of the Apex Court. 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. ].”

The Hon’ble High Court of Bombay in the matter of Sayyed Education Society v. State of Maharashtra, WP 1305/2011 dated 12.02.2014 had held that public authorities are under a statutory obligation to maintain records and disseminate as per the provisions of the Section 4 of the RTI Act, 2005. The High Court in this respect, held as under:

“Needless to state that as observed by the Hon’ble Apex Court in paragraph No. 14 in the case of CBSE and Another (supra), Public Authorities are under an obligation to maintain records and disseminate the information in the manner provided under Section 4 of the RTI act. The submission of the petitioner that it is an onerous task to supply documents, therefore is required to be rejected. The Law mandates preserving of documents, supplying copies thereof to the applicant, in our view, cannot be said to be an onerous task.”

Above all the Hon’ble Supreme Court of India in the decision of R.B.I. and Ors. V. Jayantilal N. Mistry and Ors, Transferred Case (Civil) No. 91 of 2015 (Arising out of Transfer Petition (Civil) No. 707 of 2012 decided on 16.12.2015 had held as under:

“The ideal of ‘Government by the people’ makes it necessary that people have access to information on matters of public concern. The free flow of information about affairs of Government paves way for debate in public policy and fosters accountability in Government. It creates a condition for ‘open governance’ which is a foundation of democracy.”

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 substantiate his claims further.

DECISION:

Keeping in view the facts of the case and the submissions made by the Respondent, the Commission expressed serious concern over the lack of awareness of the CPIO / FAA with regard to the provisions of the RTI Act, 2005 and its implementation by the Respondent Public Authority. The Commission therefore 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. Anil Bhatia v. CPIO Dy. Director (Commercial Land) Delhi Development Authority in Second Appeal No.:- CIC/DDATY/A/2017/138730-BJ, Date of Decision: 14.03.2019