Writ - K D v CIC
IN THE HIGH COURT DELHI, AT NEW DELHI
EXTRAORDINARY CIVIL WRIT JURISDICTION
CIVIL WRIT PETITION NO. OF 2007
IN THE MATTER OF: -
Kusum Devi .…Petitioners
Versus
Central Information Commission & Others. ….Respondents
I N D E X
PARTICULARS PAGE NOs.
1. Notice of Motion
2. Urgent Application
3. Memo of Parties
4. Synopsis and List of Dates
5. Writ Petition and along with Affidavit
6. Annexure P-1
Copy of complaint to R4 dated 22/02/06
7. Annexure P-2
Copy of application made to R2 under Right to Information Act,2005 dated 23/02/06
8. Annexure P-3
Copy of complaint made to R1 under S. 18(1) of the Right to Information Act, 2005, dated 04/04/06
9. Annexure P-4
Copy of letter sent by R1 to R2, informing him of the date of the second hearing, dated 03/08/06.
10. Annexure P-5
Copy of the order made by R1 to R2, directing him to provide information within 15 days and issuing him a show cause as to why penalty not be imposed on him, dated 17/08/06.
11. Annexure P-6
Copy of order made by R1 stating that R2 had already taken action on the applications, thereby imposing no penalty on R2, dated 24/08/06.
12. Annexure P-7
Copy of application made by petitioner to R1 claiming compensation amounting to Rs. 2580, dated 24/08/06.
13. Annexure P-8
Copy of information received from R2 under the Right to Information Act, 2005, dated 28/08/06.
14. Annexure P-9
Copy of order dated 05.09.06 passed by R1, allowing only Rs. 520 out of the total Rs. 2580 that was claimed as compensation by the petitioner
15. Annexure P-10
Copy of reminder sent to Under Secretary, Central Information Commission, asking for the payment of the said Rs.520, dated 09/02/07.
16. Application for directions alongwith affidavit
FILED BY
Vipin Mathew Benjamin/ Jayshree Satpute
Advocates for the Petitioners
Date: 19-05-07 576, Masjid Road, Jangpura
Place: New Delhi New Delhi – 110014
NOTICE OF MOTION
IN THE HIGH COURT DELHI, AT NEW DELHI
EXTRAORDINARY CIVIL JURISDICTION
CIVIL WRIT PETITION NO. OF 2007
IN THE MATTER OF: -
Kusum Devi ….. Petitioners
Versus
Central Information Commission and Others ..… Respondents
Sir,
The enclosed Writ Petition in the aforesaid matter has been filed on behalf of the Petitioners and is likely to be mentioned on ___________ or any date thereafter. Please take notice accordingly.
Vipin Mathew Benjamin/ Jayshree Satpute Advocates for the Petitioners
Dated: 04-05-07 65, Masjid Road, Jangpura,
New Delhi New Delhi- 110014
Enclosed: Copy of the Petition
1. Central Information Commission
Block IV, 5th Floor
Old JNU campus
New Delhi-110067 ….Respondent No. 1
2. Former Central Public Information Officer Shri O.P. Mishra
(O.S.D. Land)
Delhi Development Authority,
Having his office at
A-2/209, Vikas Sadan
INA Market,
New Delhi ….Respondent No. 2
3. Central Public Information Officer
Sh. Rajshekhar,
Deputy Director, Institutional Lands,
Delhi Development Authority,
Having his office at
A-2/210, Vikas Sadan
INA Market,
New Delhi ….Respondent No. 3
4. The Vice-Chairman
Delhi Development Authority
Having his office at
Vikas Sadan, INA
Delhi ….Respondent No. 4
IN THE HIGH COURT DELHI, AT NEW DELHI
EXTRAORDINARY CIVIL JURISDICTION
CIVIL WRIT PETITION NO. OF 2007
IN THE MATTER OF: -
Kusum Devi ……Petitioners
Versus
Central Information Commission and Others ..…Respondents
URGENT APPLICATION
To
The Registrar
Delhi High Court
New Delhi,
Sir,
Kindly treat the accompanying Writ Petition as urgent. The ground of urgency is that interim directions are being pleaded in this petition.
AND LIST FOR: _________
Through
Advocates for the Petitioners
IN THE HIGH COURT DELHI, AT NEW DELHI
EXTRAORDINARY CIVIL JURISDICTION
CIVIL WRIT PETITION NO. OF 2007
IN THE MATTER OF: -
Kusum Devi .…Petitioners
Versus
Central Information Commission & Others. ….Respondents
MEMO OF PARTIES
Kusum Devi
E-42/284-A, Rajiv Camp
Jhilmil Industrial Area
Shahadara
Delhi- 110095.
…Petitioners
VERSUS
1. Central Information Commission
Block IV, 5th Floor
Old JNU campus
New Delhi-110067 ….Respondent No. 1
2. Former Central Public Information Officer
Shri O.P. Mishra (O.S.D. Land)
Delhi Development Authority,
Having his office at
A-2/209, Vikas Sadan
INA Market,
New Delhi ….Respondent No. 2
3. Central Public Information Officer
Sh. Rajshekhar,
Deputy Director, Institutional Lands,
Delhi Development Authority,
Having his office at
A-2/210, Vikas Sadan
INA Market,
New Delhi ….Respondent No. 3
4. The Vice-Chairman
Delhi Development Authority
Having his office at
Vikas Sadan,
INA Delhi ….Respondent No. 4
Advocates for the Petitioners
Place: New Delhi
SYNOPSIS
The principal point which arises in this petition is whether a Public Information Officer who persistently defaults in the doing of his duties under the Right to Information Act, 2005 (hereinafter referred to as the Act) and further defaults in attending the proceedings before the Central Information Commission and finally provides no written explanation as to why the defaults had taken place can be exonerated from the imposition of penalty under S. 20 of the Act.
Petitioner is a poor person living in a slum in East Delhi. She became aware through press reports that the Delhi High Court had directed private schools that had received concessions in the form of land from the Government, were bound to admit poor students as well to the extent of 20 percent of the seats. She accordingly approached New Oxford School and Arwachin Bharti Bhawan Senior Secondary School, Vivek Vihar in January 2006 for an admission form and was refused. She therefore made a complaint to R4 dated 22/02/06. There was no reply to it.
Time was of the essence because this was a critical period during which admissions were being made. On 23/02/06, petitioner made an application under the Right to Information Act, 2005 before R2 dated 23/02/06.
In the application the information sought was in respect of the action taken by the authorities on the complaint and related issues.
R2 did not respond even after 30 days which is the mandated limit under s. 7(1) under the Right to Information Act, 2005.
On 04/04/2006 petitioner made a complaint to R1 (Central Information Commission) under s. 18(1) of the Act.
The first hearing took place before the Central Information Commission on 29/05/06. R2, though served with notice, did not appear.
On the 03/08/06, R1 informed R2 by letter of the same date that the next hearing would be on 17/08/06 and in the event of failure by him to appear the Commission would pass an ex parte order. The Commission also sought the comments of R2 on the complaint by 14/08/06. No comments were supplied.
The second hearing took place before the Central Information Commission on 17/08/06. Again R2 did not appear. It appears that from the office of the Central Information Commission a telephone call was made to R2 to ask him to appear but no information was available at the office of R2 as to whether he would be appearing. Two hours after the proceedings were closed R2 contacted the Commission and reported that he had been held up in court proceedings. The Central Information Commission directed R2 to provide the information within 15 days. A show cause was issued as to why penalty should not be imposed.
On 24/08/06, R2 appeared. R1 (Central Information Commission) concluded after hearing the parties, that information was not provided. It made an order dated 24/08/06. In the said order it is stated that R2 had taken action on the applications and therefore no penalty was proposed. However, R1 could not have come to this conclusion from the material on record because R2 had filed no reply before the Central Information Commission nor was any reply handed over to the petitioner.
On 24/08/06, the petitioner also made an application dated 24/08/06 seeking compensation for the loss and expenses incurred. The amount claimed was Rs. 2580 for 2 representatives of the petitioner and their travel for the hearings and for their loss of salary for these 3 days. These 2 representatives earn Rs. 300 and 500 respectively. They had to take time off from their work to attend these proceedings.
On 28/08/06 petitioner received the information under Right to Information Act, 2005 from R2.
Thereafter an order dated 05/09/06 was passed by the R1(Central Information Commission).
In the order, the Commission has deducted the notional salary loss of the 2 representatives and has decided to pay only Rs. 520. This sum too, has not been paid, despite a reminder having been sent to the Under Secretary, Central Information Commission, on 09/02/2007.
Hence this petition
LIST OF DATES
22/02/06 Date of complaint made to R4, upon not being given an admission form by New Oxford School and Arwachin Bharti Bhawan
23/02/06 Date of application under Right to Information Act, 2005, seeking information on action taken by the authorities in relation to the complaint made to R4 and other issues
04/04/2006 Date of complaint to R1 (Central Information Commission)
29/05/06 Date of first hearing before R1, when R2 did not appear
03/08/06 Date of letter sent to R2 by R1 informing him of second hearing, failing which R1 would pass an ex-parte order
14/08/06 Last date given to R2 by R1 for comments on the complaint of the petitioner
17/08/06 Date of second hearing before R1. Again, R2 did not appear. Time limit of 15 days given to R2 to provide information and show cause issued to R2 on why penalty should not be imposed on it by R1
24/08/06 R2 appears before R1. R1 passed order that information had not been provided but since action had been taken, no penalty was imposed
Also, application for compensation and losses incurred, to the tune of Rs. 2580 made by petitioner to R1, of which R1 allowed only Rs. 520
28/08/06 Some Information under Right to Information Act, 2005 received from R2, but not that which was asked for
5/09/06 Date of order passed by R1, allowing only Rs. 520 as compensation, out of a claimed amount of Rs. 2580
09/02/07 Date of reminder sent to Under Secretary, Central Information Commission to pay the amount of Rs.520 as compensation
10/05/07 Hence, this Petition is filed in the High Court of Delhi
IN THE HIGH COURT OF DELHI AT NEW DELHI
EXTRAORDINARY CIVIL JURISDICTION
CIVIL WRIT PETITION NO. OF 2007
IN THE MATTER OF: -
Kusum Devi ……Petitioner
Versus
Central Information Commission and Others ..… Respondents
A CIVIL WRIT PETITON UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SEEKING A WRIT OF CERTIORARI READ WITH SECTION 151 OF THE CIVIL PROCEDURE CODE AGAINST THE ORDERS OF THE CENTRAL INFORMATION COMMISSION DATED 24/08/06 AND 05/09/06
TO,
THE HON’BLE CHIEF JUSTICE OF THE
HIGH COURT OF DELHI & HIS LORDSHIPS
COMPANION JUDGES OF THE HON’BLE HIGH COURT
THE PETITION OF THE
PETITIONER ABOVE NAMED
MOST RESPECTFULLY SHOWETH THAT:
1. The principal point which arises in this petition is whether a Public Information Officer who persistently defaults in the doing of his duties under the Right to Information Act, 2005 (hereinafter referred to as the Act) and further defaults in attending the proceedings before the Central Information Commission and finally provides no written explanation as to why the defaults had taken place can be exonerated from the imposition of penalty under S. 20 of the Act.
2. S. 20 of the Act is as follows:
(1) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, 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 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall impose a penalty of two hundred and fifty rupees each day till application is received or information is furnished, so however, the total amount of such penalty shall not exceed twenty-five thousand rupees:
Provided that the Central Public Information Officer or the State Public Information Officer, as the case may be, shall be given a reasonable opportunity of being heard before any penalty is imposed on him:
Provided further that the burden of proving that he acted reasonably and diligently shall be on the Central Public Information Officer or the State Public Information Officer, as the case may be.
(2) Where the Central Information Commission or the State Information Commission, as the case may be, at the time of deciding any complaint or appeal is of the opinion that the Central Public Information Officer or the State Public Information Officer, as the case may be, has, without any reasonable cause and persistently, failed to receive an application for information or has not furnished information within the time specified under sub-section (1) of section 7 or malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information or destroyed information which was the subject of the request or obstructed in any manner in furnishing the information, it shall recommend for disciplinary action against the Central Public Information Officer or the State Public Information Officer, as the case may be, under the service rules applicable to him.
3. Petitioner is a poor person living in a slum in East Delhi. She became aware through press reports that the Delhi High Court had directed private schools that had received concessions in the form of land from the Government, were bound to admit poor students as well to the extent of 20 percent of the seats. She accordingly approached New Oxford School and Arwachin Bharti Bhawan Senior Secondary School, Vivek Vihar in January 2006 for an admission form and was refused. She therefore made a complaint to R4 dated 22/02/06, hereto annexed and marked Annexure P-1 is a copy of the said complaint dated 22/02/06. There was no reply.
4. Time was of the essence because this was a critical period during which admissions were being made. On 23/02/06, petitioner made an application under the Right to Information Act, 2005 before R2 dated 23/02/06. Hereto annexed and marked Annexure P-2 is a copy of the said application dated 23/02/06.
5. In the application the information sought was in respect of the action taken by the authorities on the complaint and related issues.
6. R2 did not respond even after 30 days which is the mandated limit under s. 7(1) under the Right to Information Act, 2005.
7. On 04/04/2006 petitioner made a complaint to R1 (Central Information Commission) under s. 18(1) of the Act. Hereto annexed and marked Annexure P-3 is a copy of the complaint dated 04/04/2006.
8. The first hearing took place before the Central Information Commission on 29/05/06. R2, though served with notice, did not appear.
9. On the 03/08/06, R1 informed R2 by letter of the same date that the next hearing would be on 17/08/06 and in the event of failure by him to appear the Commission would pass an ex parte order. The Commission also sought the comments of R2 on the complaint by 14/08/06. No comments were supplied. Hereto annexed and marked Annexure P-4 is a copy of the letter dated 03/08/06.
10. The second hearing took place before the Central Information Commission on 17/08/06. Again R2 did not appear. It appears that from the office of the Central Information Commission a telephone call was made to R2 to ask him to appear but no information was available at the office of R2 as to whether he would be appearing. Two hours after the proceedings were closed R2 contacted the Commission and reported that he had been held up in court proceedings. The Central Information Commission directed R2 to provide the information within 15 days. A show cause was issued as to why penalty should not be imposed. Hereto annexed and marked Annexure P-5 is a copy of the order dated 17/08/06 of the Central Information Commission.
11. On 24/08/06, R2 appeared. R1 (Central Information Commission) concluded after hearing the parties, that information was not provided. It made an order dated 24/08/06. Hereto annexed and marked Annexure P-6 is a copy of the said order. In the said order it is stated that R2 had taken action on the applications and therefore no penalty was proposed. However, R1 could not have come to this conclusion from the material on record because R2 had filed no reply before the Central Information Commission nor was any reply handed over to the petitioner.
12. On 24/08/06, the petitioner also made an application dated 24/08/06 seeking compensation for the loss and expenses incurred. The amount claimed was Rs. 2580 for 2 representatives of the petitioner and their travel for the hearings and for their loss of salary for these 3 days. These 2 representatives earn Rs. 300 and 500 respectively. They had to take time off from their work to attend these proceedings. Hereto annexed and marked Annexure P-7 is a copy of the said application dated 24/08/06.
13. On 28/08/06 petitioner received the information under Right to Information Act, 2005 from R2. Hereto annexed and marked Annexure P-8 is a copy of the information provided.
14. Thereafter an order dated 05/09/06 was passed by the R1(Central Information Commission). A true copy of it is annexed hereto and marked Annexure P-9.
15. In the order, the Commission has deducted the notional salary loss of the 2 representatives and has decided to pay only Rs. 520. This sum too, has not been paid, despite a reminder having been sent to the Under Secretary, Central Information Commission, on 09/02/2007. Hereto annexed and marked Annexure P-10 is a copy of the reminder dated 09/02/07.
GROUNDS
The order dated 24/08/06 is impugned in this petition on the following grounds:
1. The application for information only sought details regarding action taken by R4. No other information was sought, nor was any request made for action to be taken further than that. This information was not supplied upto 28/08/06, i.e. after a delay of 6 months.
2. Secondly, the only action taken by R2 was to forward similar complaints as that of the petitioner to the Director, Education. The information supplied to the petitioner does not even reveal that the petitioner’s claim was forwarded to the Director, Education. Forwarding such complaints to the Director, Education was routine practice in any case. Similarly, show-cause notices were issued to some schools but not in the case of the petitioner’s complaint. These show cause notices have nothing to do with the petitioner’s complaint. In short, the information supplied was random and irrelevant and unconnected with the petitioner’s complaint. The question arises as to whether the information supplied is in accordance with the Right to Information Act, 2005. It is the petitioner’s case that the information has not been supplied even to this date. Merely handing over a bundle of papers of irrelevant documents is not compliance with the Act. R2 thereby misled the Central Information Commission into believing that the information had been supplied. This misleading was deliberate and mala fide. This is the reason why, in the proceedings, R2 did not supply the information sought but posted it to the petitioner subsequent to the hearing. R2 has only made a pretence of supplying the information. In view of this, exemplary penalty should have been imposed.
3. The default of R2 before the Commission also exacerbated the initial default of not supplying information. Exemplary penalty should have been awarded.
The order dated 5/09/06 is impugned on the ground:
4. That the compensation has not been made in a reasonable and just manner. First of all, R4 did not respond to the original complaint of the petitioner. Secondly, R2 did not respond to the application of the petitioner under the Act. Thirdly, for two hearings before the Central Information Commission, R2 did not turn up without showing any reasonable cause for being absent. Fourth, in the third hearing before the Central Information Commission, R2 still does not file a written reply and makes oral submissions. Fifthly, after the third hearing before the Central Information Commission, R2 sends the petitioner certain documents which do not amount to the providing of information as required under Act. Finally, even to this day the information has not been given. All these defaults have caused the petitioner and his 2 representatives to spend days on the preparing, filing and pursuing of the proceedings under Act. The first representative of the petitioner Ritu Mehrotra is employed with Parivartan, an NGO, on a salary of Rs. 7000 per month. The second representative Rajiv Kumar is employed on a salary of Rs. 9000 per month. Although they claimed their salary for 3 days in fact they have spent an equivalent of 10 days on the study, preparation and pursuing this case. Petitioner is illiterate and could not contribute much to the preparation of the case. The representatives met with the petitioner about 15 times. They attended the Central Information Commission for 3 days. They went to the Delhi Development Authority along with the petitioner twice. They also went to the Central Information Commission to deposit the complaint. Till today, even the Rs. 520 has not been paid despite reminders. In the circumstances, exemplary compensation should be granted to the petitioner as well as the representatives.
PRAYER
In the abovementioned facts and circumstances, it is most respectfully prayed that this Hon’ble Court maybe pleased to:
a. Issue a writ of Certiorari or any other writ, order or direction setting aside the impugned orders of the Central Information Commission dated 24/08/06 and 05/09/06.
b. Pass an order directing R2 to provide the information to the petitioner in accordance with the Right to Information Act, 2005, with regard to the application dated 22/02/06.
c. Pass an order imposing the maximum penalty under S. 20 (1) of the Act on R2 for persistent default in the providing of information without any reasonable cause.
d. Pass an order directing R4 to take disciplinary action against R2 in accordance with S. 20 (2) of the Act for persistent default in the submission of information.
e. Pass an order directing R4 to pay a sum of Rs. 10000 each to the petitioner and her 2 representatives by way of compensation under S. 19(8)(b) of the Act and to recover this amount from the salary of R2, if deemed necessary by this Court.
Advocates for the Petitioner
Date: 10-05-07 New Delhi – 110014
Place: New Delhi