Right to Information
When CIC Exceeds its Powers, HC Steps in
In the last week of January, Justice Sanjeev Sablok of the Delhi High Court handled two cases of two Public Information Officers (PIOs) who petitioned against penalty levied on them by the Central Information Commissioners. He gave different judgments on the two cases, one of which reflects on the approach of Information Commissioners, who sometimes go beyond their jurisdiction while giving orders. The other portrays the courage of the Central Information Commission (CIC) in giving a stiff penalty, though it remains to be seen whether it is taken to the logical end.
 
One case pertained  to the Tihar Jail authorities being directed by the CIC to pay compensation to one Mr Gandhi, who was detained for four extra days, besides directing the prison department to frame rules for such cases. The Delhi High Court overturned this order. 
 
In the other case, the PIO of Indian Council of Agricultural Research (ICAR) was directed by the CIC to be given maximum penalty of Rs25,000, which was upheld by the Delhi High Court.
 
Case I: HC Overturns CIC Order on Compensation to Prisoner 
Om Prakash Gandhi, who served one year imprisonment in Tihar Jail in a cheque fraud case, completed his sentence but was kept in detention for four extra days.  Gandhi filed over 30 RTI applications regarding his extra detention and the compensation that he should be paid for it. Finally, he appealed to the Central Information Commission. 
 
The CIC directed that the PIO should pay a token compensation to Gandhi and also directed the Tihar Jail authorities “to put into place a policy or guideline or regulation for a system of resolving disputes regarding remission and paying compensation to prisoners who lost their personal liberty due to extra detention.”
 
Justice Sachdev of the Delhi High Court stayed the order of the Chief Information Commissioner (CIC), where the PIO of Tihar Jail was ordered to pay compensation to Gandhi for keeping him under extra detention. The High Court order stated, “The CIC has exceeded the jurisdiction conferred upon it by the Right to Information Act, 2005. It is contended that the CIC appears to have exercised power vested in a Constitutional Court conferred under Article 226 of the Constitution. It is contended that the CIC did not have the power to assess token compensation for delay in release of prisoners.
 
“Perusal of the order, prima facie, shows that the CIC has sought to exercise powers beyond those conferred on it under the Right to Information Act, 2005…Prima facie, this power does not vest in the CIC.”
 
Case Il: HC Upholds CIC Order on Penalty for Not Giving Information
An applicant had sought information under the Right to Information (RTI) Act, from Indian Council of Agricultural Research (ICAR)’s Project Directorate, on funds allocated for Foot and Mouth Disease (FMD) in animals. The information pertained to the cost sheet for 2012-13; whether the ICAR Team at headquarters at Krishi Bhavan, New Delhi, was aware of it and; copy of the covering letter of the price per unit for 3AB3 Indirect ELISA Kits to individual FMD centres or network units or any other public institutes engaged in FMD sero-surveillance; name and designation of the ICAR official(s) who had instructed and or authorised the Project Directorate on Foot and Mouth Disease (PDFMD) to issue 3AB3 Indirect ELISA and so on.
Most of the replies by the CPIO were, “It is an institute matter.” 
 
Since the RTI applicant was not satisfied with the reply given, a complaint under Section 18 of the Act was filed with the CIC. The CIC said, “We asked Dr BB Dash, CPIO of Project Directorate on Foot and Mouth Disease to explain his reply dated 28 September 2015 in response to various queries of the RTI application, in which he disposed of most of the queries by stating that it was an institute matter. Dr BB Dash, CPIO, failed to provide the information without any cogent reason. The nature of his replies, to various queries in his letter dated 28 September 2015 shows that these were meant to circumvent the queries raised by the complainant in her application. All this is a pointer to wilful denial of information. Therefore, in our view, this is a fit case for imposition of the maximum penalty of Rs25,000 on Dr BB Dash, CPIO under Section 20 (1) Of the RTI Act.” 
 
“…The Head of the Project Directorate on Foot and Mouth Disease is directed to ensure that the above amount of penalty is recovered in five equal instalments from the monthly pay of Dr BB Dash, CPIO, beginning with his pay for the month of December 2016. The amounts so deducted should be remitted to the Deputy Registrar, Central Information Commission, Room No. 305, August Kranti Bhawan, Bhikaji Cama Place, New Delhi -110066 by way of Demand Draft drawn in favour of Pay and Accounts Officer, Central Administrative Tribunal, New Delhi.”
 
The CIC came to the conclusion that the nature of CPIO’s replies to various queries showed that these were meant to circumvent the queries raised by the complainant in her application, which amounted to wilful denial of information. The CIC also observed, “The CPIO is to provide the information sought and, in case the information is not liable to be provided on account of it being exempt, give sufficient reasons for denying the supply of information.”
 
The Judge concluded “…the CIC has not erred in returning a finding that information sought has not been provided… No cogent explanation has been rendered for non-supply of the information. Thus, the order of the CIC dated 22 November 2016 cannot be faulted.’’ 
 
The petition was dismissed by Justice Sanjeev Sachdev.
 
(Vinita Deshmukh is consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting, which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.)
 

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COMMENTS

GLN Prasad

2 months ago

A simple Lecture to a Professor.

Budget 2017: Affordable housing stole the show
The real estate sector had a huge wish list for the Finance Minister and a few things recommended by market players have seen the light of the day. Needless to say, affordable housing, which received infrastructure status, stole the show in this year's Budget. While there are quite a few reasons to cheer, there are some aspects on which the Budget was silent, says Liases Foras Real Estate Ratings and Research Pvt Ltd in a note. 
 
According to the research report, there was no further clarity on goods and services tax (GST) or tax norms for real estate investment trusts (REITs) in the Budget. "It is indeed laudable that second-time home buyers have been dissuaded, but it would have been even better if the first-time home buyers had been given interest exemption to a greater limit. Another issue, which demanded some attention, was the Land Acquisition Bill. Exorbitant rate of land is the biggest issue plaguing real estate and ensuring its productivity would bring greater efficiency in the real estate sector. We can only hope that the next budget will see some of these issues being brought to light and addressed effectively," the non-brokerage research centric firm says.
 
The housing sector saw a gamut of policies that aimed at providing a demand side as well as supply side impetus to affordable housing. Coupled with this, Liases Foras says, there was much-needed focus on infrastructure, digitisation of transactions and rural housing.
 
Infrastructure status to affordable housing
 
Affordable Housing finally got infrastructure status. The Indian realty sector had been mooting this move for the longest possible time and it could not be happier. So, the direct impact of infrastructure status to affordable housing means easier availability of funding. Developers can now have access to funds at lower rates and for longer terms. Moreover, this also implies more investment from external commercial borrowings (ECBs) and insurance funds. 
 
Liases Foras says, "The demand for affordable housing is huge and, with a move like this, we hope to see more supply of affordable housing to bridge the gap. Infrastructure status also means speedier sanctions and approvals. However, it would be appreciated if the term 'affordable housing' is more clearly defined in this context. The lesser the areas of doubt, the more the positive impact of the policy."
 
However, it says, going by the last updated definition of Reserve Bank of India (RBI), "Affordable segment means in the non-metros the loan amount would be Rs40 lakh for the property value of Rs50 lakh, and in the metros the loan amount would be Rs50 lakh for the property value of Rs65 lakh. There are six metros in the country: Mumbai, Chennai, Kolkata, Delhi, Hyderabad and Bangalore."
 
 
If we do an impact analysis we can see that around 60% of the supply in India (Tier I and Tier II combined) falls in the affordable housing segment. Hence, the proposal to give infrastructure status to affordable housing is expected to have a big impact on the Indian real estate, it added.
 
Carpet area replaces Built-up area in Section 80 IB
 
The Section 80 IB recommended last year stated that exemption from service tax will be provided on construction of affordable houses up to 60 square metres under any scheme of the Central or State Government including public-private partnership (PPP) schemes. However, the area mentioned was built-up area. This year that has been changed to carpet area and this increases the area covered by 30%. He also said that the 30sq mt limit will apply only in case of municipal limits of four metropolitan cities while for the rest of the country including in the peripheral areas of metros, a limit of 60 sq mt will apply.
 
 
Furthermore, the Finance Minister also proposed to extend the completion period of the building of the houses after commencement under the Scheme to five years from the present three years.
 
Extension for consideration period for tax on unoccupied houses
 
Currently, the houses, which are unoccupied after getting completion certificates, are subject to tax on notional rental income. For developers for whom the constructed buildings are stock-in-trade, Finance Minister Arun Jaitley proposed to apply this rule only after the end of the year in which completion certificate is received so as to give the builders a reasonable time frame for liquidating their inventory.
 
Change in holding period for long term capital gains
 
The Union budget proposed to reduce the holding period for considering gain from immovable property to be long term to two years from the present three years and the base year for indexation to be shifted from 1 April 1981 to 1 April 2001. "This is an investor- friendly move, which reduces the capital gains tax liability while encouraging the mobility of assets," Liases Foras says. 
 
The Government also suggested financial instruments such as infrastructure bonds in which the capital gains can be invested and tax payment can be avoided.
 
As for Joint Development Agreements signed for development of property, the liability to pay capital gains tax will arise in the year of completion for the project.
 
Some good news for Andhra Pradesh
 
For the new Capital of the State of Andhra Pradesh, which is being constructed by an innovative land-pooling mechanism without use of the Land Acquisition Act, the Union Finance Minister proposed to exempt from capital gains tax, all those who were holding land on 2 June 2014 - the date on which the State of Andhra Pradesh was re-organised - and whose land is being pooled for creation of the capital city under the Government Scheme.
 
Attempt to dissuade investors
Finally, the best one was saved for the last. The government has put in a limit of Rs2 lakh on set-off of loss from house property with income from other heads. In the earlier provision, 100% of loss occurring in house property was allowed to be adjusted against income from salary or business or profession. Because of these provisions, investment in real estate was considered a tax saving tool.
 
 
Since the prevailing rental yields are only 2% while the interest rate has been at 9-10%, purchasing second and more properties used to be a big incentive for investors. So now, investor participation in the market will be curtailed. This is a paradigm change in real estate practices which has hitherto been heavily dependent on investors, the a non-brokerage research centric firm concluded.
 

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Things to Do After the Death of a Parent
My father expired on 28 November 2016. He was a government servant and retired as a Joint Commissioner, Income Tax. As I come to terms with his loss, I feel like sharing the knowledge that I acquired regarding the processes involved in the paperwork post his death. I have worked in the private sector all my life, and to learn aspects of the Government sector was enriching. 
 
1.To begin with, the hospital asks the family to write the exact name of the deceased, with the initials. Ensure you get this right, as this is what will go into the death certificate. Any deviation here will cause a lot of problems later.
 
2. Secondly, there is the death certificate from the municipal authorities. This is different from the one that the hospital gives. The latter is to be handed over at the burial ground, whose caretaker gives a printed slip in return. Preserve this. After the cremation, about 10 days later, visit the municipal website and enter the date of death. A list of those who expired on that day appears. Select the name from there and download as many prints you want -- at least 20! Every organisation in the chain needs this.
 
3. The most important step in the whole process is to get the legal heirship certificate from the local tehsildar. Find out which tehsildar office your parent’s residence falls under. Visit the office with the death certificate and ask the revenue inspector's assistant for a form that needs to be filled up. The spouse or children of the deceased can fill this up. You need to attach copies of all ID proofs of the remaining family members and copies of all financial instruments.
 
This is a tricky step where some incentivisation needs to be done! In my case, since I was a single woman, they were hesitant to ask for this; so I took a male member (my uncle) with me. If this process is getting delayed, meet the tehsildar. This puts the revenue inspector under some pressure to do it fast.
 
This typically takes three months, but with persistence can be expedited (I got it in a record 10 days!). There are touts to do this, but you can do it yourself.
 
4. The next thing to do is to list out the possible various interfaces that one is going to need, namely:
- Banks
- Pension office
- Central Government Health Scheme (CGHS)
- Property
- Vehicle insurance (if the deceased had any)
 
Talk to each of these organisations and understand the process required to convert ownership of the deceased person's belongings to the spouse's. Draw a flowchart so you are visually clear on what is required. 
 
Now the actual stuff starts, beginning with the banks. Hopefully, your father has a joint account with your mother or has at least put her as a nominee. If it is a joint account, one just needs to remove the deceased person's name in the account and continue with it. If it is the latter, the bank will give a nominee claim form that needs to be filled. It is the same process for fixed deposits (FDs), and mutual funds (MFs).
 
There is a tax implication. The legal heir has to file the income tax returns for the deceased and pay tax if required. So, if the investments or savings amount is taxable, do the calculations and check if 15H is to be given in those banks where the wife/husband is now becoming an account holder or holding investments.
 
Get to know the deceased’s auditor in advance. This simplifies a lot of things, including accessing his latest income tax (I-T) return, which in turn gives a lot of status update.
 
The bank locker key access is another aspect. Get to know where it is kept and its number. Also, which account is it linked to.
 
The change of the ATM card is to be done. If the deceased has not shared his/her PIN number, a fresh ATM card has to be applied for by the heir after the bank account name transfer has happened.
 
Getting online access to the bank account is another process.
 
For a government servant, the key issue is pension. The process of pension name transfer is decentralised to the respective banks. Hence, this is the place to follow this up with.
 
Typically, the pension is credited in a public sector bank and is not a joint account between the couple. But it is useful if the wife has a separate bank account in the same bank, as transferring becomes easier later. In my case, since my mother suffers from Parkinson’s Disease, getting her to sign on many papers itself was an ordeal. So, joint or either-or-survivor accounts help.
 
Go with the death certificate to the bank and they will give you a set of forms to be filled in by the spouse. Then you need to wait. This may take up to a month. Till this time, even if the son/daughter wants to get into an employee’s retirement system (ERS) arrangement with the bank on the existing account, it may not be possible as the pension office will want to check if the account holder is single before sending pension to that account.
 
6. Central Government Health Scheme (CGHS): This is a boon for government servants but the process involved can be a nightmare if the deceased has not filled in the nomination form for the spouse. There are two aspects to CGHS -- expense bills claim and cardholder name change.
 
For the expense bills claim after your parent’s demise, you need to get the bill forms filled by the claimant (spouse) with his/her CGHS Card ID number. But all bills need to carry the following:
- Legal heirship certificate
- NOC on stamp paper from the children (original with each bill)
 
Notarisation needed for the latter.
 
The bills have to be submitted within three months of the death of the deceased.
 
The card name change can happen only after the pension transfer takes place, so there is a linkage here. Contact the CGHS headquarters in your city and obtain the forms to be filled up.
 
7. Property: If the deceased  has left a property will, then there is clarity. Else the ownership should be registered with the help of legal heirship to either the spose or the children, as the case may be. This requires detailed paperwork and you should contact your lawyer to get the list of documents that need to be traced regarding the property, right from the sale deed, or encumbrance certificate (EC).
 
 
The physical registration ideally can be done in one step, as re-registration can be avoided that involve repeated fees.
 
Preferably, get to know your parent’s lawyer before his/her demise. This helps continuity of thought.
 
Insurance -- Life, vehicle, and medical:
Each company has a different protocol. But the death certificate and legal heirship are the starting points. Check if the insurance has been taken through an agent or from the company directly.  Many companies have online services, so you could check through that. If your parent had a separate folder for insurance, that could save time. For life and medical insurance, it is good to go to companies directly, for vehicle it is best to go through an agent who will help with the transfer of the vehicle to your name.
 
To sum up, I wish I had some awareness of the things I needed to be prepared for. In retrospect, I would ensure the following:
1. Bank accounts/FDs/MFs to be made jointly with the spouse, shared ATM numbers with spouse. Ideally, account or investment should be with one bank for the sake of simplicity of handling. Where is the bank locker key kept and what is its number?
2. Who are the deceased’s auditor/ lawyer?
3. Do I have any contact with the local tehsildar office?
4. Is there one diary that captures all investment details/ important phone numbers of the deceased? Do I have access to it?
5. Where are the original property documents kept?
6. Which bank does his/her pension get credited? Has the deceased put the spouse as a nominee? Does the spouse have an account in the same bank?
7. Does CGHS carry the nomination of the spouse?
7. Many forms need attestation or witnesses. Who can do that? Line up at least two of them.
8. Where are the deceased’s ID proofs, like PAN Card or Passport, kept? And the colour passport- size photos?
 
Finally, remember it takes enormous patience to wade through Indian bureaucracy. So, if you are a son or daughter living abroad and have dropped in around the time of your parent’s demise, you need to plan kick start the above processes.
 
Take adequate copies of ID proofs and photos of the spouse before your start the process.
 
In case the deceased was your father, it is most important to spend time with your mother, as her loss is the greatest. If you can manage it, shift away from the residence where your father passed away. This is not always possible, but even if you do it for a short term it helps.
 
(Rajeshwari Victor is Associate Professor at XLRI Jamshedpur. She studied Marketing at IIM Ahmedabad and also went to IIT Madras. Her email ID is rajeshwarivictor@gmail.com.)
 

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COMMENTS

NK Mohanty

4 weeks ago

good to share-thanks

good to share -thanks.

Suketu Shah

1 month ago

One of the best articles you wl ever read.

Ashok Bagade

1 month ago

Very true. All these formalities are to be carried out keeping aside our emotions

Girish Mittal

1 month ago

I also lost my father last year... And I had tough time with some of the agencies.. Like the death certificate, download from Registrar website was not accepted..they wanted "original", wherein none existed... My father was aware enough to have all his accounts joint as well as we had nominee, so we did not face many challenges there. Getting his demat account closed was a challenge as CDSL would transfer securities in the account of nominee, if the nominee's account is single, not joint as I had .. I had to open a new demat account for that... Changing "karta" in HUF account was another challenge... Most bankers did not know how to proceed... All these are manageable, but the greatest loss of papa, is not !!!

Simple Indian

2 months ago

Thank you Ms. Victor for sharing your experiences (ordeal ?) in having your late father's particulars transferred to your mother's name. Am sure the information provided by you will help many people to know the procedures and requirements at each govt office. I wish there was no bribery/corruption involved in these matters atleast, at govt offices.

Sunil Rebello

2 months ago

Thank you Rajeshwari.
the info you penned will be a great help to many many of us who read it and action your guidelines.
Have a Good Day

RAMESH VASWANI

2 months ago

First, nowadays, Banks are allowing pension account to be opened in joint names, so much of the problems are avoided afterwards.
The office of Tehsildar comes into picture in case of small cities, towns etc. But in case of Metropolitan cities like Mumbai, Kolkata, New Delhi, Madras, the legal heirship certificate are not issued and the heirs are advised to approach the courts to obtain legal heirship certificate, which is very expensive, time consuming and cumbersome. It takes years together, as courts are already over burdened.

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