This case shows how the IIT provides stability certificates for erecting cell towers on old buildings without any inspection of the buildings! This is the 17th in a series of important judgements given by Shailesh Gandhi, former CIC that can be used or quoted in an RTI application
The Public Information Officer (PIO) or First Appellate Authority (FAA) cannot deny information under the Right to Information (RTI) Act, especially about a certificate issued by a public authority. While giving this important judgement, Shailesh Gandhi, former Central Information Commissioner said, “Statutory bodies which permit these towers and the Indian Institutes of Technology (IITs) would do well to take a look at these practices which may have the potential of endangering safety. Alternately people may discover that there is no need for such certification in which case it would be done away with.”
“The PIO was unable to give any of the exemption clauses of Section 8 (1). The Commission found that since the certificate was issued by the public authority and none of the exemption clauses apply to it,” the Central Information Commission (CIC) said in its order dated 31 December 2009.
Gurgaon resident Sham Lal, on 25 November 2008, sought information from the PIO of IIT Delhi regarding issuing of the certificate required to erect a mobile tower on the roof-top of a residential building after 1 January 2007. He wanted to know the names, address of building/building owners, date of issuing of the certificate with the certificate number, date of inspection, number of persons required to inspect for testing the structural stability, TA (travelling allowance) paid for inspection and details of vehicle used for the said purpose.
The PIO declined to provide the information citing third party clause. Sham Lal then approached the FAA, who upheld the PIO’s decision. The FAA in his order on 16 February 2009 said, “Having gone through the details, I would like to comment as following:
1) The reply given by the PIO is exclusive and complete. The relief sought for is your interpretation. In this regard, may please note that the certificate is given to the client only citing specific reference of the building.
2) It may be noted that the assignment has been undertaken as consultancy. As per agreed terms and conditions of the consultancy assignment, consultancy report and related documentation is confidential matter and cannot be disclosed to third party.
3) The drawings submitted by our client were returned to the client after the assignment was completed. We do not maintain record of such documents, hence we are unable to provide you a copy of the drawings.”
Not satisfied with the replies, Sham Lal then filed the second appeal before the Commission. During the hearing, he stated that the house for which he is seeking information is in the name of Vinod Kumar, a third party. The PIO said he asked the third party under Section 11 of the RTI Act, and since Vinod Kumar refused to share the information, he did not provide it. The PIO also stated the copies of the plans of the building and other documents supplied by the third party are not retained by them, hence they could not supply these since they do not have the records.
Rejecting the PIO's contention, the Commission said since the certificate was issued by the public authority and none of the exemption clauses apply to it, the PIO should provide certified copy of the stability certificate to Sham Lal on or before 30 May 2009.
However, on 8 June 2009, Sham Lal sent a letter to the Commission alleging that the PIO had given incomplete information despite orders from the CIC. “The PIO had not provided the information within the stipulated time limit and the inordinate delay amounts to wilful disobedience of the Commission’s order and also raises a reasonable doubt that denial of the information might have been malafide,” Mr Gandhi noted.
He then directed the PIO to provide complete information before 30 June 2009 and also be present before the Commission along with the written submission to show cause as to why penalty should not be imposed on him under Section 20(1) of the RTI Act.
During the show-cause hearing on 23 July 2009, the PIO stated that the faculty members in the IIT issue a stability certificate based on the drawings provided by the client in which the address is mentioned. The PIO also said that no records are maintained by the IIT of the drawings.
The Commission took a look at the stability certificate provided by IIT which states, “This building is safe and capable of resisting the forces and moments which may be increased or altered by reason of the additional structures for a 15 meter three-legged tower with GSM and MW antenna. Pre-fabricated shelter and 25 KVADG set installed on the roof top of the building submitted by M/s VAS Design and Infrastructure Consultants Pvt Ltd. This does not certify the safety of building in the case of a natural calamity.”
Mr Gandhi noted that “The wording of this certificate appears to indicate that it is certifying the stability as existing whereas the PIO described that it is a certificate based on a drawing with an address which is not verified at all. Given the fact that the IIT does not maintain any copy of the drawing with itself this process appears to have great potential for misuse.”
The PIO has provided the information but this exercise appears to have revealed some fundamental flaws, he said. The Commission then directed the Director of IIT Delhi to take a look at these practices and correct them if required.
CENTRAL INFORMATION COMMISSION
Decision No. CIC/SG/A/2009/000589/3293Adjunct
Appeal No. CIC/SG/A/2009/000589
Appellant : Sham Lal
Respondent : Vivek Raman
Public Information Officer
Indian Institute of Technology Delhi,
Denying information on the basis that there is no larger public interest is flawed, unless it is first established that the information is exempt under the RTI Act. This is the 16th in a series of important judgements given by Shailesh Gandhi, former CIC that can be used or quoted in an RTI application
The Public Information Officer (PIO) or First Appellate Authority (FAA) cannot deny information under the Right to Information (RTI) Act, merely on the basis that there is no larger public interest unless it is first established that the information is exempt. While giving this important judgement, Shailesh Gandhi, former Central Information Commissioner said, “The concept of public interest cannot be invoked for denial of information. Section 8 (2) empowers the PIO to provide the exempted information if it is in the larger public interest; meaning thereby that access to the exempted information can be allowed if public interest is served in providing the information”.
“Any refusal of information has to be only on one or more grounds mentioned in section 8 (1) or Section 9. The Act gives no scope to the adjudicating authorities to import new exemptions other than those that have been provided under the Act and thereby deny the information,” the Central Information Commission (CIC) said in its order dated 31 December 2009.
Jaipur resident Mangla Ram Jat, on 22 February 2008, sought information from the Central PIO of Banaras Hindu University (BHU), Institute of Medical Sciences regarding the Pre PG Medical (MD/MS) examination 2008. He sought following information...
“Kindly make available to me the complete text of the ‘question paper’, provided by the university to the examinees of the pre PG Medical (MD/MS) Examination 2008 held on 17/02/2008 by the institute of medical sciences, along with standard answer key adopted by the university.”
The PIO denied the information stating that “...the question paper along with the key answer to M.D/M.S Exam-2008, conducted by the Institute of Medical Sciences, BHU cannot be given to you as the disclosure of the same is not favourable in larger public interest.”
Mangla Ram then approached the First Appellate Authority (FAA). However, the FAA also denied to provide information saying that, “...the access of the same is not allowed. In a similar type of case, the decision of the Central Information Commission may be observed (Ref: Appeal No844/ICPB/2007 & No 845/ICPB/2007)”.
Aggrieved by the reply of the PIO and the FAA, Mangla Ram then filed the Second Appeal before the Commission.
During a hearing on 15 December 2008, the Commission observed that the main issue in this case was the non-supply of question papers along with the standard answer key adopted by the University. The PIO said he denied the information based on a decision given by the Commission in the BL Goel Vs AIIMS case.
In the case, the Commission had held: “Regarding Answer Key and the Question Booklet after going through the Committee's report and also the submissions made by the CPIO and AA during the hearing, I come to the conclusion that the AIIMS is taking all precautions in conducting examination in a most satisfactory manner and they have also evolved a foolproof system and it has got several in built checks and by disclosing this information we will not be able to protect any larger public interest. Keeping all these aspects in to account, I fully agree with the stand taken by the CPIO and AA in not providing this information to the appellant.”
Mr Gandhi then reserved his decision.
During the next hearing on 31 December 2008, the Commission said the RTI is one of the most fundamental human rights and before going further, it is desirable to look into the Preamble of the Act and some of its provisions. The preamble reads as...
“AND WHEREAS democracy requires an informed citizen and transparency of information which are vital to its functioning and also to contain corruption and to hold governments and their instrumentalities accountable to the governed;
“AND WHERAS revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information;
“AND WHEREAS it is necessary to harmonize this conflicting interest while preserving the paramountcy of the democratic ideal;”
The preamble is the soul of the Act and clearly spells out the aims and objectives of the Act, Mr Gandhi said. As per Section 3 of the Act, citizen’s right to access information under the Act is absolute, subject only to limitations prescribed under the Act. To make this right meaningful and effective, citizens are not required to give any justification for seeking information, the Commission said.
Further, in Section 6 (2) of the Act in crystal clear words it is lays down as follows:
“6 (2) An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.”
The Commission said, any refusal of information has to be only on one or more grounds mentioned in section 8 (1) or Section 9 of the RTI Act. The Act gives no scope to the adjudicating authorities to import new exemptions other than those that have been provided under the Act and thereby deny the information.
While deciding the appeal in BL Goel Vs AIIMS case, the Commission came to the conclusion that “by disclosing this information we will not be able to protect any larger public interest”. However, Mr Gandhi said, this Commission, after going through the above quoted sections of the Act is of the view that nothing in the Act envisages denial of information on the ground that the information will not be able to protect any larger public interest.
“The test of public interest is to be applied to give information, only if any of the exemptions of Section 8 apply. Even if the exemptions apply, the Act enjoins that if there is a larger public interest, the information would still have to be given. There is no requirement in the Act of establishing any public interest for information to be obtained by the sovereign citizen; nor is there any requirement to establish ‘protecting of any larger public interest’. Therefore, in view of the above provisions of the Act, the denial of information in the Commission's orders are ‘per incuriam’,” Mr Gandhi said in his order.
Allowing the appeal by Mangal Ram, the Commission asked the PIO to provide information before 15 January 2009.
CENTRAL INFORMATION COMMISSION
Decision No. CIC /OK/A/2008/00860/SG/0809
Appeal No. CIC/OK/A/2008/00860/
Appellant : Mangla Ram Jat,
Respondent 1 : CPIO,
Banaras Hindu University,
Institute of Medical Sciences,
While the RTI Act does not expect the PIO to provide answers which are not on record, it does not mean that merely because the queries are prefixed with “why, what, when, whether” information can be refused. This is the 15th in a series of important judgements given by Shailesh Gandhi, former CIC that can be used or quoted in an RTI application
The Public Information Officer (PIO) cannot deny information available on record merely because the queries are prefixed with “why, what, when or whether”. While giving this important judgement, Shailesh Gandhi, former Central Information Commissioner said, “The Right to Information (RTI) Act does not state that queries must not be answered, nor does it stipulate that prefixes such as ‘why, what, when and whether’ cannot be used."
“The PIO and the First Appellate Authority (FAA) have erred in their interpretation of what constitutes ‘information’ as defined under the RTI act,” the Central Information Commission (CIC) said in its order dated 9 February 2009.
Mumbai resident TB Dhorajiwala, on 25 August 2008, sought information regarding a tender for disposal of unserviceable equipments of chemical engineering department at Indian Institute of Technology Bombay (IITB). He wanted to know...
1. What happened of Tender No MD/CD/DISP/001/07/REG/L/ which was due on 24 August 2007 for disposal of Unserviceable equipments
2. Let me know why you had not Re-Invite of above tender
3. Let me know what stage the matter is at present
4. Let me know what action you had taken against offender
5. Let me know person name who had involved in this matter
While denying the information, Dr Indu Saxena, the PIO at IITB, said, "The RTI Act does not cast on the Public Authority any obligation to answer queries, in which a petitioner attempts to elicit answer to the questions with prefixes, such as, why, what, when and whether. The petitioner’s right extends only to seeking information as defined in section 2(f) either by pinpointing the file, document, paper or records, etc, or by mentioning the type of information as may be available with the specified public authority. You may only ask for specific information under RTI Act, 2005 rather than questioning the action of public authority.”
Dhorajiwala then approached the FAA. While returning the appeal, the FAA said, “...the CPIO has taken the right stand in dealing with your application dated 25 August 2008. However, you may mention what exact information as defined under Section 2(f) read with section 2(i) & 2(j) of the RTI Act, which will be provided.”
Dhorajiwala then filed a second appeal before the Commission. During the hearing, the PIO, in a written submission repeated the grounds for denying the information and adding that the appellant had stated in his appeal that he was seeking “clarification of his queries”.
Mr Gandhi, the CIC, noted that the PIO and the FAA have erred in their interpretation of what constitutes ‘information’ as defined under the RTI act. Section 2 (f) of the Act states,
“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”.
The PIO contended that the RTI Act does not cast on the public authority any obligation to answer queries, in which a petitioner attempts to elicit answer to the questions with prefixes, such as, why, what, when and whether. The petitioner’s right extends only to seeking information as defined in section 2(f) either by pinpointing the file, document, paper or records, etc, or by mentioning the type of information as may be available with the specified public authority, the PIO stated.
While accepting the contention of the PIO that what is asked must be a matter of record, the Commission said the PIO erred in imposing a new set of non-existent exceptions. Looking at the queries of Dhorajiwala, the Commission gave point-wise directions to the PIO...
1. What happened of Tender No. MD/CD/DISP/001/07/REG/L/ which was due on 24/08/2007 for disposal of Unserviceable equipments.
Commissions direction: If there was such a tender, it will be on records and the PIO must provide the information.
2. Let me know why you had not Re-Invite of above tender.
Commission's direction: If the tender was there and there are any reasons on record why it was not re-invited, the PIO must provide them.
3. Let me know what stage the matter is at present.
Commission's direction: If there is any record of this it must be given.
4. Let me know what action you had taken against the offender.
5. Let me know person name who had involved in this matter.
Commission's direction: If there is any offender identified in the matter details of point 4 and 5 would have to given based on the records.
Mr Gandhi, while asking the PIO to provide information, said if there are no records about any of the aboe points, then the PIO must state it categorically.
CENTRAL INFORMATION COMMISSION
Decision No. CIC /SG/A/2008/00347+00277/1554
Appeal No. CIC/SG/A/2008/00347+00277
Appellant : TB Dhorajiwala,
Mumbai - 400008.
Respondent 1 : Dr Indu Saxena,
Deputy Registrar(Admn) & P.I.O,
Indian Institute of Technology Bombay,
Powai, Mumbai - 400076.