Five Examples with Analysis
of Mandatory Sections of RTI Act 2005
violated by Orders
You may download the below-mentioned orders and analysis in word or pdf format from here: http://www.box.net/shared/
EXAMPLE 1:
Appeal No.2007/1263/02
Shri P.P.Talati, Aderbad, Flat no.43,
34, N.S.Patkar Marg, Mumbai 400 007. .. Appellant
V/s
Appellate Authority & Dist.
Deputy Registrar Coop Societies,
Malhotra House, Mumbai .. Respondents
GROUNDS
The hearing in respect of 2nd appeal filed by Mr. P.P.Talati of Mumbai against the order of District Deputy Registrar dt. 21.3.2006 was heard on 8.10.2007 when the Appellant, Mr. Talati, PIO and Appellate Officer were present.
The PIO by his letter dt. 3.2.2006 has informed the Appellant in response to his application under RTI Act, 2005 that his application has been sent to his Cooperative Society with the directions that the required information should be given to Mr. Talati since the information sought is not available in their office. The intimation of this was given to the Appellant. This was confirmed in the appeal and it has been specifically mentioned that if the Appellant does not receive the information from the Society a complaint to that effect should be made to the Deputy Registrar. During argument the Appellant insisted that he should get the information either from the Deputy Registrar’s office or from the Federation.
Under RTI Act, 2005 if the information is held by another public authority the public authority to which such application is made should transfer the said application to the concerned public authority. In his case the application has been sent by the PIO of Deputy Registrar’s office to the concerned Cooperative Society with the direction to give the information to the Appellant i.e. as per the provisions of the Act. The Act gives the right to the Appellant to get the information but he cannot insist that I must get the information from a particular office. In the instant case if he has not received the information from his Coop. Housing Society he should bring this fact to the notice of the concerned Deputy Registrar who will intervene and see that the required information is given to the Appellant.
ORDER
Appeal is thus disposed off.
(Dr. Suresh V. Joshi)
Chief Information Commissioner
Place: Mumbai.
Date: 9.10.2007
ANALYSIS OF EXAMPLE 1:
Dr Suresh Joshi’s Order is based on a perverse reasoning that transfers the onus of RTI compliance from Dy. Registrar of Cooperatives — a public authority — to the cooperative housing society, which is not a public authority. it absolves the PIO at Dy. Registrar of Cooperatives of responsibility, and passes the buck to nobody in particular, as Cooperative Housing Societies can have no “PIO”.
The correct section applicable is section is 2(f) “information relating to any private body which can be accessed by a public authority under any other law for the time being in force.”
Instead, Dr Joshi invokes Section 6(3) with malafide intent to dilute the responsiility of the Deputy Registrar of Cooperatives.
6(3): “Where an application is made to a public authority requesting for an information,—
(i) which is held by another public authority; or
(ii) the subject matter of which is more closely connected with the functions of another public authority,the public authority, to which such application is made, shall transfer the application or such part of it as may be appropriate to that other public authority and inform the applicant immediately about such transfer...”
SUMMARY: This order violates sections 2(f) and 20(1).
EXAMPLE 2:
Appeal No.2007/1363/02
Shri Kishor Totaram Lulla, Abhyankar Complex,
V/s
Appellate Officer and Deputy Secretary .. Respondent
Food & Civil Supplies Department, Mantralaya, Mumbai 400 032.
GROUNDS
Shri K.T.Lulla had sought the following information under RTI Act, 2005 on 28.8.2006 from the PIO & Under Secretary, Food & Civil Supplies Department, Mantralaya, Mumbai for the period 2001-2002 to July 2006:
“As per section32(7) of the MVAT Act and 38(6A) of the BST Act, 1959, the amounts forfeited and recovered is to be transferred to the Consumer Protection and Guidance Fund. It is to be utilised for the purpose of Consumer Awareness. In this connection following information may please be given:
i) How much amount is forfeited in every above mentioned year in the State of
ii) How much amount is transferred in the above mentioned fund in every year.
iii) Details of utilisation of the said fund as per Sec. 32(7)(iii) of MVAT Act and 38(6A)(iii) of the B.S.I.Act;
iv) Copies of guidelines given by State Government in respect of the above.”
The PIO vide letter dt. 15.11.2006 gave the available information to the Appellant but Appellant filed 1st appeal u/s 19(1) with the Appellate Authority, Consumer Protection Department, F&CSD, Mantralaya, Mumbai 32 stating that the PIO has not given the details of utilisation of excess fund. Having not heard anything from the 1st Appellate Officer, the Appellant filed 2nd appeal with this Commission on 2.5.2007 which was heard on 26.9.2007 when the Appellant, Shri Lulla and Shri T.R.Dhaygude and Shri D.M.Nayak, US, F&CSD & Consumer Protection Department, Mantralaya, were present.
At the time of hearing the Appellant stated that the PIO has given incomplete information. The Respondents were directed to give the figures regarding Maharashtra Consumer Protection & Guidance Fund received from the office of the Accountant General,
ORDER
Appeal is thus disposed off.
(Dr. Suresh V. Joshi)
Chief Information Commissioner
Place: Mumbai.
Date: 19.10.2007
ANALYSIS of example 2:
Dr Joshi’s Order is bad in law on two counts:
I. DELAY is condoned without application of mind:
Date of Application was 28.8.2006. Date of PIO’s reply was 15.11.2006.
As per Section 7(1), the deadline for reply was 28.9.2006. PIO’s reply was delayed by over 45 days. This eligible to be fined Rs 250x45 = Rs 11,250
Section 7(2) clearly states, “If the PIO fails to give decision on the request for information within the period specified under sub-section (1), the PIO shall be deemed to have refused the request.
Further, Section 19(5) states: In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the PIO who denied the request.
Finally, Section 20(1) states: Where the Information Commission, at the time of deciding any complaint or appeal is of the opinion that the PIO has, without any reasonable cause, refused to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 ... it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished...
But as per the Order passed, Dr Joshi neither sought a justification under Section 19(5), nor did he even apply his mind to penalties for delay/denial under Section 20(1).
II. PROVIDING INCOMPLETE INFORMATION is also condoned without application of mind.
The last para of the “grounds” establishes that Dr Joshi upheld the appellant’s contention of incomplete information, which is also punishable under Section 20(1). But instead of asking the PIO to justify his actions as per section 19(5) and last para of 20(1), Dr Joshi disposes off the appeal without even applying his mind to the mandatory penalty clause.
SUMMARY: This order violates sections 7(2), 19(5) and 20(1).
eXAMPLE 3
Appeal No.2008/3245/02
Shri. Harinarayan S. Mishra
Room No. 2, Bldg. No. 4, Praijat Co-op. Housing. Society,
New MHADA Colony, Sion-Pratiksha Nagar,
Mumbai – 400 022. ..… Appellant
V/s
First Appellate Officer cum Dy. Commissioner of Police,
Zone III, Central Control Office, Bawla Compound,
Public Information Officer cum Asst. Commissioner of Police,
Zone III, Central Control Office, Bawla Compound,
GROUNDS
The Appellant Shri. Harinarayan S. Mishra has made unsigned second appeal on 30.01.2008 to the Commission on the following grounds.
a) The Commission be pleased to direct the concerned person to give the Accidental Death Report (A.D.R.) of Santosh Goswami.
b) The concerned person be punished for not giving the A.D.R. within stipulated period.
c) Disciplinary action pleased be initiated against the concerned person for misguiding the appellant by giving incorrect information.
The hearing of the appeal was arranged on 24.10.2008 in the office of the Commission. At the time of hearing the Appellant, the Public Information Officer and the First Appellant Officer, were present.
The Appellant had filed the application on 09.10.2007 to the Public Information Officer for all Emergency Police Register record of 13.03.2007 of Register maintained at
Public Information Officer has provided information on 08.11.2007 to Appellantexcept information on the Accidental Death Register on the ground that it was submitted to the Court.
As the incomplete information was provided by Public Information Officer, the Appellant had made first appeal on 07.12.2007. The First Appellate Officer on giving hearing on 19.12.2007 had passed the order on 19.12.2007 itself. It is stated in the order that the First Appellate Officer has no power to take action on Public Information Officer for giving misleading information. In view of that he has recommended for taking action against the Public Information Officer and disposed of the appeal.
The Appellant has made unsigned second appeal on 30.01.2008 on the grounds stated in para one above. The Commission has heard both the parties and gone through all the papers available before the Commission.
It is seen that later on expected information is made available to the Appellant. This fact has also been taken note by Addl. Senior Judge Bombay at Sewree in his order dated 18.12.2007. As the appeal is unsigned, the Commission is passing following order.
ORDER
The Appeal is dismissed.
(Dr.S.V.Joshi), Chief Information Commissioner,
Place: Mumbai
Date: 31.12.2008.
ANALYSIS OF EXAMPLE 3:
Dr Suresh Joshi’s Order is bad in law. PIO’S DELAY & PROVIDING INCOMPLETE INFORMATION is condoned without application of mind.
The Order mentions that even the First Appellate Authority noted that PIO had given misleading and incomplete information, and recommended action in his Order. But Dr Joshi does not even seek the PIO’s explanation. Based on the twisted logic that the PIO gave the information “later on” on some indeterminate date, and on the technical grounds that the appellant had not signed the second appeal, Dr Joshi does not apply Section 19(5) and Section 20(1). He dismisses the appeal.
Section 19(5) states: In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the PIO who denied the request.
Section 20(1) states: Where the Information Commission, at the time of deciding any complaint or appeal is of the opinion that the PIO has,
... knowingly given incorrect, incomplete or misleading information ... or obstructed in any manner in furnishing the information ... it shallimpose a penalty of two hundred and fifty rupees each day till application is received or information is furnished...
EXAMPLE 4:
Appeal No.2008/3225/02
Shri.Moin Akhter Qureshi
Baitul Akhter Bldg., First Floor, Room No.18 /19,
Above Delhi Darbar Hotel, Patthe Bapurao Marg,
Mumbai – 400 004. …Appellant
V/s
First Appellate Officer cum Asst.Municipal Commissioner
Office of the “D” Ward, M.C.G.M.,
Nana Chowk, Mumbai – 400 007. …. Respondent
Public Information Officer cum Asst. Engineer,
(Building & Factories), Office of the “D” Ward, M.C.G.M.
Nana Chowk, Mumbai – 400 007.
GROUNDS
The appellant has made second appeal to the Commission on 6-12-2007 on the ground that the Public Information Officer has given false reply and further order dated 30-8-2007 which was given by the First Appellate Authority to give reply and document within seven days is not followed by the P.I.O., therefore penalty be imposed on P.I.O.
The hearing of the second appeal was fixed on 22-10-2008 in the office of the Commission. At the time of hearing the Appellant, the P.I.O. and the First Appellate Officer were present.
The appellant has asked for the details information on 14 points regarding notices issued to 15 illegal construction in
The P.I.O. under his letter No. ACD/9325/B, dated 6-7-2007 has informed to the appellant that particular of information required by appellant does not contain any details about any notices and hence no information can be furnished to the appellant.
Being aggrieved by the letter of the P.I.O. the appellant has made first appeal on 23-7-2007 to the First Appellate Officer requesting to him to imposed penalty according to the R.T.I. Act, 2005. The First Appellate Officer has arranged hearing on 23-8-2007.
The appellant and the P.I.O. were present for hearing. As the First Appellate Officer was not satisfied with the reply given by the P.I.O., he has passed the order on 30-8-2007 to provide proper information as requested by the appellant within seven days and thus first appeal is disposed off.
The appellant has made second appeal on 6-12-2007 to the Commission as the P.I.O. has not given reply and document to the appellant as per the order passed by the First Appellate Officer. The appellant has also requested to impose penalty on the P.I.O.
At the time of hearing of the second appeal on 22-10-2008, the Commission has heard both parties and gone through the documents available in the office of the Commission. It is also brought to the notice of the Commission that the appellant has made complaint letter on 1-1-2008 to the various officers / department on the same subject which is replied under letter dated 28-1-2008.
On going through the papers available in the office of the Commission and on hearing of both the parties, it is observed that the P.I.O. has not given required information to the appellant even after order of the First Appellate Officer which is negligence on the part of the P.I.O. The P.I.O. should henceforth obey the order of the First Appellate Officer under the R.T.I. Act, 2005.
If appellant is still not satisfied with the information given by letter dated 28-1-2008 the P.I.O. should give inspection of the concerned files to the appellant and give him copies of the documents required by him within a period of one month from the receipt of this if the applicant has not taken inspection 15 days before. The applicant should note also that he is entitles to get the information as per the definition of information in the Act. The following order is passed in the matter.
ORDER
The appeal is disposed off.
(Dr. Suresh V. Joshi)
Chief Information Commissioner,
Place: Mumbai
Date: 07.01.2009.
ANALYSIS OF EXAMPLE 4:
Again, this Order of Chief SIC
Dr Suresh Joshi is totally illegal under RTI Act 2005.
He condones PIO’S TOTAL DENIAL OF INFORMATION without application of mind:
Even the First Appellate Authority had ordered PIO to give the requested information. But PIO persisted in denial of information.
Dr Joshi evidently did not even ask for PIO’s justification as mandated by Section 19(5). He disposed off the appeal without considering the mandatory penal provisions, with only an instruction to PIO to give the requested information in a month if appellant has not taken inspection in 15 days time.
It is significant that the information requested pertains to demolition of 15 illegal constructions. Dr Joshi’s strange Order raises suspicions of undue favours and corrupt considerations.
SUMMARY: This order violates sections 7(2), 19(5) and 20(1).
EXAMPLE 5:
Complaint No.2007/225/02
Shri Julio Rebeiro,
C/o Indian Music Industry, 266,
2nd floor,
Worli, Mumbai 400 030. .. Complainant
V/s
Public Information Officer,
Office of CEO, SRA, Griha Nirman Bhavan,
Bandra (East), Mumbai 400051. .. Respondent
GROUNDS
Shri Julio F. Rebeiro had given application u/s 6 of RTI Act, 2005 to the SPIO, SRA, Mumbai on 28.6.2007 seeking the following information:
“ Certified true copies of entire file of Project under construction at village Juhu, Taluka Andheri, having CTS No.35 and its adjoining land, etc. near JVPD Circle – K/West Ward – Developer: M/s Kunal Builders and Developers, A/3, Everest Building, Tardeo, Mumbai 400034 – Society: Shri Juhu Taj CHS – SRA IOD Ref. No. SRA/ENG/540/KW/MHL/AP, dt.20.5.2004 and C.C. Ref. SRA/ENG/540/KW/MHL/LOT, dt. 30.12.2004.”
The said application was received by the SRA on 4.7.2007 and since Mr. Rebeiro did not receive the information within a period of 30 days he filed complaint application u/s 18 of RTI Act, 2005 with this Commission on 9.8.2007 which was received in this Commission on 14.8.2007. Enquiry into this complaint was conducted on 31.8.2007 and 1.9.2007 when Mr. Kewal Semlani on behalf of Mr. Julio F. Rebeiro and Mr. Tidke, Dy. Collector and Shri R.R.Tripathi, Assistant PIO, SRA were present. The Assistant PIO explaining the delay has stated that the information sought through this application was voluminous more than 300 number of documents and several number of approved plans and they had taken considerable time to take out xerox and prepare the set. Moreover, it has been pointed by the Asst. PIO that criminal investigations are in progress by the Economic Offence Wing of CID in respect of this case, hence the information cannot be furnished u/s 8(1)(h) of RTI Act, 2005 and, therefore, though the documents required by the Appellant were kept ready, were not issued. He, however, rendered apology for not informing the Appellant within stipulated time.
Mr. Semlani who represented Mr. Rebeiro stated that such type of plea could be taken by the Police Authorities who are investigating the case, however, the same plea cannot be taken by the non-investigating authority like SRA. He also pleaded that since there has been delay in giving the information the Appellant desires that penalty should be imposed on the PIO.
Section 8(1)(h) of the Act is as follows: “8(1)(h) – information which would impede the process of investigation or apprehension, or prosecution of offenders;” Sheri Rebeiro, the Applicant himself was Commissioner of Police, Mumbai, Director General of Police, Government of Punjab, held gubernatorial posts and eminent personality. If the required information is in such hands, by no stretch of imagination it would be surmised that this would impede the process of investigation or apprehension or prosecution of offenders.
Since such an eventuality must have arisen in respect of PIO for the first time the predicament of PIO is also understandable. However, he ought to have informed the applicant about the possible delay in furnishing the desired information. In this case, the PIO ought to have sought the guidance from the CEO, SRA as regards whether such information should be given or not. In this case, however, he simply did not take any initiative and put-forth this argument only at the time of hearing before this Commission. Since the information has been kept ready, it should be immediately given to the Complainant without charging any fee since there has been delay on the part of the PIO in giving the information. Since this is a peculiar case, the Commission is imposing penalty of just Rs. 1,000/- which would serve the purpose of enforcing time limit for giving the information under RTI Act.
ORDER
(a) Information should be given to the Applicant free of cost immediately;
(b) PIO should pay a penalty of Rs. 1,000/- for his lapse.
The CEO, SRA should see that this amount of Rs. 1,000/- is recovered from the salary of PIO for the month of September 2007 paid in October 2007 and deposited under proper head prescribed by the Government and compliance be reported to the Commission by 15th October, 2007.
(Dr. Suresh V. Joshi)
Chief Information Commissioner
Place: Mumbai.
Date: 1.9.2007
ANALYSIS OF EXAMPLE 5:
This is a high-profile case where Julio Ribeiro, represented by Kewal Semlani, was the respondent. The matter was concerning illegal construction work involving crores of rupees.
Dr Suresh Joshi was clearly on the horns of a dilemma.
Dr Joshi condoned PIO’S NON- REPLY, WHICH AMOUNTS TO DENIAL OF INFORMATION AS PER SEC. 7(2), by pleading that this is a “peculiar case”.
Nonetheless, to avoid antagonizing Kewal Semlani and Julio Ribeiro, he imposed a token penalty of Rs 1,000.
Dr Joshi’s addressed the PIO’s objection under section 8(1)(h) with specious arguments: “Shri Rebeiro, the Applicant himself was Commissioner of Police, Mumbai, Director General of Police, Government of
As the information requested pertains to large-scale illegal construction being investigated by CID’s Economic Offence Wing (EOW), Dr Suresh Joshi’s peculiar Order raises suspicions of undue favours and corrupt considerations.
SUMMARY: This order violates sections 7(2) and 20(1) and looks fishy, as Dr Joshi pulls off a balancing act.
Do you feel that the above analysis of Dr Suresh Joshi’s Orders is correct? Or do you feel that it is unfair or illogical?
Please feel free to comment, and also to email other obviously bad Orders of other Information Commissioners at SIC and CIC.
Warm Regards,
Krish
98215 88114
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