Dr. Vinesh Kawatra v. Mcd .

The decision of the CIC was given by:

Wajahat Habibullah, CIC

By an application of 18.4.06, Dr. Vinesh Kawatra of Malviya Nagar, New Delhi applied to Shri C.V Singh, Superintending Engineer (Works) MCD seeking construction of a road in accordance with orders of the Hon'ble High Court of Delhi, together with which he attached an application under the RTI Act 2005.

The information sought under the RTI Act, as attached under Annexure ‘D’ to this application was as follows:

“1. While seeking aforesaid permission for cutting of trees standing in the Middle of the Road around Park in between Blocks 4, 5, 9, 10 and 11 in Malviya Nagar, has the Ex. Engr. (Works) MCD abided by the Rules framed under Delhi Tree Preservation Act, 1984? (DTPA-1984). Also, his subsequent clarifications to DCF, and all other efforts to get the Road cleared of these trees, for the welfare of the Community, have also been within the Rules framed under Delhi Tree Preservation Act, 1984?

2. In order to give Practical shape to LOSC's Drawings, repeated requests and subsequent clarifications to DCF, from Ex. En. (Works IV) MCD seeking permission for felling of trees are -

a. Credible, Realistic.

b. Trustworthy and Convincing or not?

If not, what should he state?

3. Do you observe ‘Noticeable Leaning’ of Deputy Commissioner of Forests towards Land Grabbers and his utter disregard to a constitutional Govt. body - the MCD?

4. If answer to 2 is yes then - Are you going to represent to Secretary Environment & Forest, to set the things right? If yes, copy thereof.

5. If answer to 2 is no, then - Are you, suggesting some more Home Work that Ex. En. (Works-IV) MCD should do to get permission? If

6. “Construct the Park and Obstruct the Road” stands exactly opposite to the spirit of High Court Orders (Orders were given to MCD on 3.8.2000) Yet - Is it true that 5-1/2 years after Hon'ble High Court Orders, the road remains obstructed? Kindly find the truth through your own source/observer and state it in the reply.

7. In view of the above, (Para 5) are these 03 trees, which are standing in the Middle of Service Road, where MCD could not liberate I for public use for the last 5-1/2 years after Hon'ble High Court Orders, and 4-1/2 years after raising the boundary wall of the park, because of land grabber's obstinate stand and support of Deputy Conservator of Forests, should be termed as “Encroachments”?

8. If yes, then in your reply, kindly state these 03 trees as “Encroachments”.

9. If No., kindly mention/explain the meaning of Encroachments in context with given situation.”

To this he received the following reply:

“1. Request for permission for felling of trees has been forwarded by this department and as on date no permission has been received from DCF.

2. No comments please.

3. No comments please.

4. Not applicable

5. Not applicable

6. Relates to D.C.F as the same does not pertain to records being maintained in this department.

7. Relates to D.C.F and this department has no comments.

8. These 3 trees are obstructing the service road and DCF has been requested for permission of felling of these trees.

9. As above at (8).

Not satisfied with this response, specifically with regard to query Nos. 7, 8 & 9, Dr. Vinesh Kawatra made his first appeal before Addl. Commissioner (Engg.) MCD seeking “clear cut answer to these questions”. There is no copy of the decision of the Addl. Commissioner in first appeal on file. However, Dr. Kawatra has moved his second appeal before us on 27.7.06 complaining that he has been provided false and incomplete information on 18.5.06, which was the information, provided by PIO Dy. Commissioner (South Zone). Herein he sought that reply be given query wise i.e information sought be incorporated in the body of information supplied.

In response to our Appeal Notice sent on 28.12.06 followed by a similar Notice on 9.1'07 wherein we had asked for comments on the appeal from Shri C.V Singh Suptdg. Engr. (Works) and Addl. Commissioner (Engg.) MCD within 15 days with a copy to the appellant, we have received a reply in respect of applicant's query Nos. 7, 8 & 9 by a letter of 23.2.07 addressed to appellant Dr. Vinesh Kawatra with a copy to us, which states as follows:

Point No. Description Reply. 7 In view of the above (Para 5) are these 3 trees, which are standing in the Middle of Service road where MCD could not “Liberate it for public use” for the last 5-1/2 years after Hon'ble High Court orders, and 4-1/2 years after raising the boundary wall of the park because of land grabber's obstinate stand and support of Deputy Conservator of Forests should be termed as “Encroachments” No. It may, however, be explained here that three trees were bigger in size and due to operational reasons, these could not be chopped off. Public sentiments had also to be respected. Unfortunately, meanwhile, the permission granted by Dy. Conservator of Forests GNCTD was withdrawn. As and when the same is granted, action will be taken. 8 If yes, then in your reply, kindly state these 03 trees as The trees are natural obstructions at given site and cannot be termed “Encroachment” encroachments. 9 If no, kindly mention/explain the meaning of encroachments in context with given situation. The meaning of encroachment in broad/sense is “to intrude on others territory” where as in giving situation the said trees are natural living beings and hence these are not encroachments.

The appeal was heard on 12.3.06 The following are present:

1. Dr. Vinesh Kawatra, appellant

2. Sh. S.K Jha, DC (SZ) MCD

Although appellant has expressed dissatisfaction with the delay despite Addl. Commissioner's assurance to the Commission in the hearing of another case on 19.4.06 that such delays will not recur, he has not sought imposition of penalty but stated before us that the information provided is incorrect.

DECISION NOTICE

It has been confirmed during the hearing that points No. 7, 8 & 9 are the three points at issue in the information now remaining to be provided by respondent, we find information sought on all three points as held by the MCD office of the DC (SZ) has indeed been provided. Appellant Dr. Kawatra has argued, in our view justifiably on several points that the public authority has no ground for holding an opinion such as has been expressed e.g in the case of public sentiments having been cited as needing to be respected. If these ‘public sentiments’ are to be construed as religious sentiments, they do not usually go beyond peepul and Banyan trees. Shri S.K Jha, DC (SZ) has stated that a representation has in fact been received from the RWA with regard to public sentiments. In their response to the application, they have also mentioned that DC (F) has been requested for permission for felling of these trees. Whatever the reasons these need to be spelt out in the response to the request for information, as this has not been done. The MCD have agreed that on receiving the permission from the DC (F), GoNCTD further action will in fact be taken.

The MCD has clearly spelt out its concept of what encroachment means.

Appellant Dr. Kawatra has serious objections to such a definition. The conclusion that we must therefore come to is therefore that in the view of appellant Dr Kawatra the position held by the MCD with regard to the three trees in question is faulty. However, since this information is the opinion of the public authority, our jurisdiction can go no further than only directing that information in the form that the opinion is held be provided, which in this case has been done.

Appellant Dr. Kawatra will now have to seek recourse to the appropriate authority either judicial or administrative for rectifying any defects in the opinion established by the public authority. The appeal is disposed of accordingly.

Announced in the hearing. Notice of this decision be given free of cost to the parties.