Shri Ramesh Bhandoola v. New Delhi Municipal Council .

The decision of the CIC was given by:

Wajahat Habibullah, CIC

In an application of 24.4.06 Shri Ramesh Bhandoola of Chankyapuri New Delhi sought the following information from Assistant Secretary (Out Door), PIO Enforcement Department of NDMC:

“Inspection of the file pertaining to the Encroachment of ‘Public Land’ by Anil Bhandoola at the back lane and sides of Sovereign Stores Building, Keventers Lane, Sardar Patel Marg, Chankyapuri, New Delhi. 110021.”

To this he received a response on 23.5.06 as follows:

“In this regard I am desired to inform you that no such file regarding subject cited above is maintained in Enforcement Deptt.”

However, before he received his reply, which seems to have been received on 30.5.06, Shri Bhandoola had moved a first appeal on 25.5.06 to which he received no reply, in which he had repeated his plea that he may be provided access to the information through inspection of files relating to the encroachment en L&DO land by Shri Anil Bhandoola. He had also asked for penalty on PIO Enforcement Directorate for “deliberately, illegally and malafidely denying the appellant's legitimate right for inspection of files available with the Public Authority”. He had followed this first appeal with a letter dated 221.6.06 quoting from our decision of 25.5.06 in the case of Shri Madan Lai Mirg v. Ministry of Home Affairs Appeal No CIC/AT/A/2006/1000105 dated 30.6.2006 in which we had stated as follows:

“We look upon with stern disapproval any attempt by these departments to withhold any inconvenient information from the citizen just because disclosure of the information would expose delays, inaction or inefficiency in dealing with citizen's rights, entitlements and their problems”

The appeal was heard by us on 29.1.07 The following are present:—

1. Shri Ramesh Bhandoola, appellant

2. Shri S.K Jain, assisting appellant

3. Shri S.S Rao, Director NDMC

4. Shri Tuisi Ram, Asstt.Secy (ENF)

In the meantime, we have received a response to our Appeal Notice from both Shri Tuisi Ram, Assistant Secretary Enforcement and PIO reiterating that there is no such file maintained in the Enforcement Department and as such the information provided remains correct to this date, together with a more detailed response from Shri S.S Rao, now Director (Estate) and earlier Director (Enforcement), both dated 20.12.06 In this the latter has argued as follows:

“On going through the enclosures, it is revealed that subject suit did not relate to Enforcement Dep't., but to the land belonging to L&DO land and thus Appellant should have approached the L&DO in this regard. As far as the suit referred to above is concerned, it is still pending in which information can be obtained only from the Hon'ble Court and not from the Enf. Dep't. and, therefore, the information is not to be supplied by the Enf. Dep't. but is to be obtained from the Court.

The RTI Act being a new subject, the Respondent/Appellate Authority being not quite clear the orders to be issued by him in such a case as when the PIO has already informed the applicant that no such file on the encroachment of public land is available h Enf. Deptt. no order has been passed. According to the mind of the Respondent, no appeal lies.”

ISSUES

The issues in this case, therefore, are as follows:

1. Whether or not such a file exists, inspection of which has been sought by the appellant?

2. Whether a penalty can be imposed on the PIO for “deliberately, knowingly, illegally and malafidely denying to the appellant his legitimate right to access information and inspection of files available with the Public Authority?”

DECISION

With regard to issue No. 1, appellant Shi R. Bhandoola has produced before us a copy of a letter dated 31.10.05 from Director (PR) and Competent Authority under Delhi Right to Information Act, 2001 Shri Madan Thapliyal which is a rejection order under that Act, in which Director Enforcement is quoted in a letter of 27.10.05 as having said “The Director (Enforcement) has informed that the relevant file was busy in the Tees Hazari Court. However, the court file was called by requesting Legal Advisor and the court file sent could not serve the required purpose. As such, the inspection by the applicant could not be held due to non availability of relevant record” A copy of this rejection order has also been handed over to Shri S.S Rao during the hearing. This letter gives reasonable cause to believe that such a file as sought to be inspected by appellant Shri Bhandoola does in fact exist. Since NDMC is a single public authority it becomes the responsibility of any PIO of that authority to obtain the information sought from the dealing authority and provide it to the applicant either through the dealing authority or by obtaining the information and supplying the same. This is as we have held in the case of Er. Sarbajit Roy v. D.D.A, Appeal No. 10/1/2005-CIC dated 20/2/2006

Under these circumstances although PIO may have been justified in holding that he had not held any such file, because the initial application made no mention of the earlier reference, it was not open to the Appellate Authority, when this fact was pointed cut in appeal, to not examine the appeal in light of this observation or at the very least exercise the provision of transfer under Sec. 6(3) of the Act. The then Appellate Authority Shri S.S Rao has admitted as much in his response both in writing and before us. He is now directed to obtain the file from the L&DO or from whichever department of the NDMC is in possession of the file in question to make it available for inspection of appellant Shri Ramesh Bhandoola. This can be done on any mutually convenient date within fifteen working days of the date of issue of this Decision Notice. This issue is disposed of accordingly.

With regard to the prayer for penalty, we find from the original application that this is a simple request for inspection of the file pertaining to the land by Shri Bhandoola at a specific site at Sardar Patel Marg in Chankyapuri New Delhi. The further grounds which have led appellant Shri Ramesh Bhandoola to believe that the file is with the NDMC have only been cited in the 1 appeal including order dated 17.5.91 passed by Hon'ble High Court and the Enforcement Department letter of 5.2.04 written while processing his application under Delhi Right to Information Act. If, therefore, the PIO was unable to find the concerned file in his Department, there was nothing in the original application which indicated to him as to where he could seek the original file. This matter could have been resolved at the stage of first appeal which has not been done.

Penalty u/s 20 of the Act lies only en the erring CPIO/SPIO. In this case we have found that the SPIO Shri Tulsi Ram cannot be faulted for the response that he has provided. There has indeed been a failure at the level of Appellate Authority which has been admitted, but there is no penalty hat may be levied under the Act at this level. We have, through our disposal of issue No. 1 suitably admonished the Appellate Authority and this issue is also therefore disposed of accordingly.

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