WP (C) 12714/09 Page No. 1 of 48 THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 21.05.2010 + WP (C) 12714/2009 DELHI DEVELOPMENT AUTHORITY ... Petitioner - versus - CENTRAL INFORMATION COM MISSION AND ANOTHER ... Respondents Advocates who appeared in this case:- For the Petitioner : Mr Ajay Verma For the Respondent No.1 : Prof. K.K. Nigam For the Respondent No.2 : Mr Sarabjit Roy (In person) CORAM:- HON'BLE MR. JUSTICE BADAR DURREZ AHMED HON’BLE MS. JUSTICE VEENA BIRBAL 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporter or not ? Yes 3. Whether the judgment should be reported in Digest ? Yes BADAR DURREZ AHMED, J PREFACE 1. Information is power. This is truer now, in this information age, than ever before. In a democracy this power of information which the public authorities possess is to be shared with the people. But at the same time, not every piece of information is to be made public. There is the public interest and democratic purpose in dissemination of information on the one hand and the competing private rights and national interests in general non-disclosure, WP (C) 12714/09 Page No. 2 of 48 on the other. This is recognized in the preamble to the Right to Information Act, 2005 (hereinafter referred to as ‗the said Act‘) itself:- ―And whereas democracy requires an informed citizenry 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 whereas 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 harmonise these conflicting interests while preserving the paramountcy of the democratic ideal‖ (emphasis supplied) Thus, the flow of information is not to be an unregulated flood. It needs to be controlled just as the flow of water is controlled by a tap. Those empowered to handle this ‗tap‘ of information are imbued with great power. Under the said Act, this power is to be exercised by the Information Commissions (State and Central). But, the power is clearly not plenary, unrestricted, limitless or unguided. The Information Commissions are set up under the said Act and they have to perform their functions and duties within the precincts marked out by the legislature. As we shall see, this is a case where the Central Information Commission and the Chief Information Commissioner have travelled beyond their boundaries of power and have thereby transgressed the provisions of the very Act which created them. The Facts: 2. The petitioner (Delhi Development Authority), by way of this writ petition under Article 226 of the Constitution of India, seeks the issuance of WP (C) 12714/09 Page No. 3 of 48 a writ in the nature of certiorari quashing / setting aside the order dated 22.09.2009 passed by the Central Information Commission upon a complaint filed by the respondent No.2. The petitioner also seeks the quashing / setting aside of the Central Information Commission (Management) Regulations, 2007 (hereinafter referred to as ‗the impugned Regulations‘) on the ground that they are ultra vires the Right to Information Act, 2005 (hereinafter referred to as ‗the RTI Act‘). In particular, the petitioner prays for the quashing of Chapter IV with specific emphasis on Regulation 20, which makes provision for the conduct of an inquiry. The petitioner is also aggrieved by the fact that the Central Information Commission required the presence of the Vice-Chairman of the Delhi Development Authority in the course of proceedings before it and the fact that the said Vice-Chairman could not be present was commented upon adversely by the Central Information Commission. The point taken by the petitioner is that the Central Information Commission does not have the plenary powers, which are vested in the High Courts and the Supreme Court of India and that, under the provisions of the RTI Act, the said Commission only has the power to summon and enforce the attendance of a person for the purposes of evidence. It was contended that the Commission does not have the power to direct the presence of the head of a public authority like the petitioner, especially when the concerned officers of such a public authority in the hierarchy under the RTI Act and senior officers have otherwise appeared before the Commission in deference to it. It was, therefore, contended that there was no power with the Commission to require the presence of the WP (C) 12714/09 Page No. 4 of 48 Vice-Chairman of the petitioner and consequently, there was no occasion for the Commission to make any adverse observation in the impugned order merely because the Vice-Chairman of the petitioner could not appear for the hearing on 03.09.2009. In the impugned order dated 22.09.2009, the Central Information Commission made the following observations:- ―At the outset we are constrained to note adversely the absence of Vice Chairman, DDA who was specially invited on this occasion to help clarify the decision regarding compliance with the orders of this Commission.‖ (underlining added) 3. The operative portion of the decision taken by the Commission on 22.09.2009 is as under:- ―Having heard the arguments and examined the records, we find the levels of compliance of the DDA both in letter & spirit of the RTI Act leaves much to be desired. It does not appear that close attention has been paid by the top management of this Authority to ensure a smooth transition to the transparency and accountability that is demanded by this law. Principal Commissioner cum Secretary, DDA Shri V.M. Bansal, although repeatedly asked to clarify various points at issue, solidly took recourse to the plea that whatever the Commission directs, the DDA will implement. He had no suggestions of what course may be followed either by internal inquiry or enquiry by professionals of the need to review the public disclosure policy of the DDA. This is a most unsatisfactory situation in a public authority, which should be in the forefront of transparency dealing with a mandate as vital as is assigned to the DDA. For this reason, this Commission in enquiring into the complaint of Dr. Sarabjit Roy is satisfied that there are grounds to enquire into the matter of compliance with sec 4 of the RTI Act by the DDA. To initiate this enquiry a Committee of the following is appointed, which will go into the details of servicing of the RTI Act by all wings and sections of the DDA and submit a report to this Commission within 45 working days of the date of receipt of this Decision Notice: 1. Ms Sujata Chaturvedi, Director MoUD 2. Shri Dunu Roy, Hazards Centre, Delhi WP (C) 12714/09 Page No. 5 of 48 3. Shri Pankaj KP Shreyaskar Jt Registrar, CIC, Member Secretary‖ (underlining added) 4. As aforesaid, the petitioner is aggrieved by the fact that the absence of the Vice-Chairman, DDA was commented upon adversely in the impugned order. The petitioner is also aggrieved by the fact that by virtue of the impugned order, the Commission has appointed a committee to inquire into the complaint of the respondent No.2 with regard to the matter of compliance by the DDA with the provisions of Section 4 of the RTI Act. According to the petitioner, there is no provision, which, under the RTI Act or the Rules made thereunder, empowers the Commission to appoint a committee, to inquire into the details of servicing of the RTI Act by all the wings and sections of the DDA and to thereafter submit a report to the Commission. The appointment of the said Committee (which includes Ms Sujata Chaturvedi, an official of the Ministry of Urban Development, Shri Dunu Roy, who represents an NGO, ‗Hazard Centre‘, Delhi and Shri Pankaj KP Shreyaskar, who is the Joint Registrar of the Commission) is sought to be justified on the part of the counsel appearing on behalf of the Commission on the basis of Regulation 20 of the impugned Regulations. It is for this reason that the petitioner has impugned the regulations as being ultra vires the Act. 5. The impugned order dated 22.09.2009 is the result of a sequence of events which were set into motion by a complaint filed by the respondent No.2 sometime in 2005 under Section 18 read with Section 19 of the said WP (C) 12714/09 Page No. 6 of 48 Act. The complaint was against the DDA and, in particular with regard to information concerning the ongoing modification of the Master Plan of Delhi for the year 2021 (MPD 2021). The respondent No.2 also sought directions to the DDA to fulfill its obligations under Section 4 of the RTI Act, which included pro-active disclosures. Initially, the respondent No.2 had claimed several reliefs, which included the providing of information sought, a direction to the DDA to deposit records with the Commission, appointment of a single Public Information Officer (PIO); re-designing of the application form; copies of 17 manuals be provided to the complainant; and payment of compensation. However, before us, the respondent No.2 submitted that his only surviving grievance is that the provisions of Section 4 of the RTI Act be complied with and the details be made available on the website of the Delhi Development Authority as expeditiously as possible. We are, therefore, focusing only on the aspect of compliance by the DDA with the provisions of Section 4 of the RTI Act. 6. On the said complaint made by the respondent No.2, the Commission passed an order on 25.02.2006, whereby the public information officer of the petitioner was, inter alia, directed to provide the Commission with a compliance report for the Commission‘s record with respect to the obligations under Section 4 of the RTI Act. It was also directed that the Acts and the Rules relevant to the functioning of the public authority (DDA) be published on the website as expeditiously as possible and, in any case, within 30 days. WP (C) 12714/09 Page No. 7 of 48 7. Thereafter, on 12.08.2008, the respondent No.2 filed another complaint against the Secretary, Delhi Development Authority submitting that the orders of the Commission dated 25.02.2006 had not yet been complied with. It appears that prior to the consideration of this complaint dated 12.08.2008, the Commission, in another appeal (Appeal CIC/S/A/2008/00006) pertaining to the DDA, had passed an order on 09.02.2009 directing the Secretary, DDA to put the DDA Act and the Rules framed thereunder on the DDA‘s website. The respondent No.2‘s complaint dated 12.08.2008 was disposed of by the Commission by virtue of its order dated 01.06.2009. In this order, the Commission observed that the information contemplated under the provisions of Section 4(1)(b) of the RTI Act, insofar as it pertained to the Delhi Development Authority, was not available on the latter‘s website. In the said order, however, it was noted that the representative of the Delhi Development Authority had submitted that in accordance with the instructions of the Commission, the DDA Act had been uploaded on the DDA‘s website. This fact had also been conceded by the respondent No.2. But, he qualified his concession by stating that it had only been done recently and not in compliance with the orders of the Commission of 25.02.2006, which had required the said information to be placed on the website within 30 days. It is not in dispute that over 3600 pages of information had been uploaded on the website of the DDA. However, it was contended by the respondent No.2 that the same was not placed in an organized manner. WP (C) 12714/09 Page No. 8 of 48 8. In the decision taken by the Commission on 01.06.2009, there is a reference to other decisions of the Commission dated 09.04.2009 and 17.03.2009 wherein, apparently, the Commission had dealt with the question of implementation of Section 4(1) of the RTI Act in detail. From the order dated 01.06.2009, it appears that detailed directions were given by the Commission in its decision of 09.04.2009 pertaining to the implementation of the provisions of Section 4(1) of the RTI Act. In the decision dated 09.04.2009, which was generally made with regard to public authorities, the Commission in purported exercise of powers conferred under Section 19(8)(a) required the public authorities to, inter alia, take the following steps:- ―xxxxx xxxxx xxxxx xxxxx xxxxx (i) Since a reasonable time has now passed form the time of promulgation of the Act in 2005, the Public Authorities should now take urgent steps to have their records converted to electronic form, catalogued, indexed and computerized for easy accessibility through the network all over the country, as mandated in Section 4(1)(a) of the Act. The computerization, dissemination and updating of record is an ongoing and continuous process and all Public Authorities should put a proper system in place to make such sharing of records as automatic, routine and continuous process, so that access to such records is facilitated. (ii) The Public Authorities are required to take immediate steps to publish detailed, complete and unambiguous information under the 16 categories, as on 31.3.2009 (if already not done or partially done) and thereafter update the information as and when necessary, but definitely every year, as mandated under section 4(1)(b) of the Act. (iii) While formulating important policies or announcing the decisions affecting the public, the Public Authorities are WP (C) 12714/09 Page No. 9 of 48 required to publish all relevant facts about such policies and decisions for the information of public at large, as mandated under section 4(1)(c) of the Act. (iv) The information disclosed by the Public Authorities under section 4(1)(b) & (c) of the Act is required to be disseminated through multiple means as provided under sub sections 2, 3 and 4 of Section 4 of the Act ….. xxxxx xxxxx xxxxx xxxxx xxxxx (vii) The names, room numbers, telephone numbers, e-mail addresses of the CPIOS/ACPIOS and Appellate Authorities may be prominently displayed in each office for the convenience of the public at large. If the complete disclosures of 4(1)(b) & (c) are also available with any other officer(s) other than the CPIOS/ACPIOs, the names, designations, room numbers and telephone numbers of such officers must be prominently displayed in the offices for easy contactability.‖ The Commission, after setting out the directions indicated above, which it had given in its decision of 09.04.2009, passed the following order:- ―In the light of the above Secretary DDA Shri Bansal is directed to ensure that the orders of this Commission of 25-2-2006 are complied with in full within 30 working days of the date of issue of this decision notice. It is noted that this is a repetition of an earlier order buttressed by subsequent elaboration in the Commission‘s orders of 17-3-09 and 9-4-09. If the compliance is not complete by the end of the period now given by CPIO found to be in non-compliance will be liable for penalty under sub-Section 1 of Section 20 on the ground that furnishing the information in the manner directed has been obstructed by that CPIO. To ensure that this is done, therefore, this Commission will hold a further hearing in this matter on 13th July, 2009 at 4.00 p.m. when all parties are directed to be present including Secretary, DDA Shri Bansal who is the coordinating authority for dissemination of information under the RTI Act so nominated by the DDA. The complaint is disposed of accordingly.‖ WP (C) 12714/09 Page No. 10 of 48 9. As a follow-up on the order dated 01.06.2009, further proceedings were held before the Central Information Commission. One such proceeding was held on 23.07.2009, whereupon the decision was announced on 24.07.2009. In the said decision of 24.07.2009, the Central Information Commission observed that the petitioner (DDA), in an effort to demonstrate compliance to the Commission, had uploaded the information in a disorganized manner which was also admittedly incomplete thereby bringing in confusion instead of clarity into the system for providing access to information as required under Section 2(i) of the RTI Act. Based upon this premise, the Central Information Commission came to the following conclusion in its order dated 24.07.2009:- ―Under the circumstances, it will be necessary to launch a more detailed enquiry into the functioning of DDA in servicing the RTI Act. For this purpose, Vice Chairman, DDA Shri Ashok Kumar together with Principal Commissioner cum Secretary, DDA, will appear before us on 3rd Sept., 2009 at 11.00 a.m. to discuss the present situation and the requirement and scope of further enquiry to enable us to reach a constructive conclusion in this matter.‖ (underlining added) 10. From the above decision, it is apparent that the Central Information Commission thought it fit to launch a detailed inquiry into the functioning of the DDA in servicing the RTI Act. For this purpose, the Commission directed the Vice-Chairman, DDA together with the Principal Commissioner-cum-Secretary, DDA to appear before the Commission on 03.09.2009. The expression used is – ―will appear before us‖. This expression has, in the impugned order, been referred to as a ‗special invitation‘. But, the order dated 24.07.2009 from its tenor does not appear to WP (C) 12714/09 Page No. 11 of 48 be an invitation, but a clear direction requiring the Vice-Chairman, DDA to appear before the Commission on the date indicated. According to the petitioner, issuance of such a direction was not within the powers of the Central Information Commission. 11. After the said order dated 24.07.2009, a hearing was held on 03.09.2009. The Vice-Chairman, DDA was not present. However, the Principal Commissioner-cum-Secretary, DDA was present alongwith other officials of the DDA. As mentioned above, the absence of the Vice- Chairman, DDA was taken adverse note of by the Central Information Commission and thereafter, the decision to appoint the three-member committee to go into the details of servicing of the RTI Act by all the wings and sections of the DDA and to submit a report to the Commission, was taken. These are, in brief, the facts of the case. Three Questions: 12. In this writ petition, the following questions need to be determined:- (1) Whether the Central Information Commission has the power, under the RTI Act and the Rules made thereunder to appoint a committee of persons other than the members of the Commission, to inquire into the implementation of the obligations cast upon a public authority, such as the DDA by virtue of Section 4 of the RTI Act ? (2) Whether the Chief Information Commissioner had the power to make the Central Information Commission (Management) Regulations, 2007 under Section 12(4) of WP (C) 12714/09 Page No. 12 of 48 the RTI Act and particularly regulations with regard to the subject matter of Chapter IV thereof, namely, ‗registration, abatement or return of the appeal‘ ? (3) Whether the Central Information Commission had the power to issue a direction requiring the presence of the Vice-Chairman, DDA in the proceedings before it ? The answers to these questions are:- (1) No; (2) No; and (3) No. The reasons for the same are given below:- Question No.1: 13. The answer to this question lies in examining the relevant provisions of the RTI Act. Section 4 of the said Act sets out the obligations of the public authorities. The same reads as under:- ―4. Obligations of public authorities.— (1) Every public authority shall— (a) maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated; (b) publish within one hundred and twenty days from the enactment of this Act,— (i) the particulars of its organisation, functions and duties; (ii) the powers and duties of its officers and employees; (iii) the procedure followed in the decision making process, including channels of supervision and accountability; (iv) the norms set by it for the discharge of its functions; WP (C) 12714/09 Page No. 13 of 48 (v) the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions; (vi) a statement of the categories of documents that are held by it or under its control; (vii) the particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof; (viii) a statement of the boards, councils, committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advice, and as to whether meetings of those boards, councils, committees and other bodies are open to the public, or the minutes of such meetings are accessible for public; (ix) a directory of its officers and employees; (x) the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations; (xi) the budget allocated to each of its agency, indicating the particulars of all plans, proposed expenditures and reports on disbursements made; (xii) the manner of execution of subsidy programmes, including the amounts allocated and the details of beneficiaries of such programmes; (xiii) particulars of recipients of concessions, permits or authorisations granted by it; (xiv) details in respect of the information, available to or held by it, reduced in an electronic form; (xv) the particulars of facilities available to citizens for obtaining information, including the working hours of a library or reading room, if maintained for public use; (xvi) the names, designations and other particulars of the Public Information Officers; (xvii) such other information as may be prescribed and thereafter update these publications every year; (xviii) publish all relevant facts while formulating important policies or announcing the decisions which affect public; WP (C) 12714/09 Page No. 14 of 48 (xix) provide reasons for its administrative or quasi- judicial decisions to affected persons. (2) It shall be a constant endeavour of every public authority to take steps in accordance with the requirements of clause (b) of sub-section (1) to provide as much information suo motu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information. (3) For the purposes of sub-section (1), every information shall be disseminated widely and in such form and manner which is easily accessible to the public. (4) All materials shall be disseminated taking into consideration the cost effectiveness, local language and the most effective method of communication in that local area and the information should be easily accessible, to the extent possible in electronic format with the Central Public Information Officer or State Public Information Officer, as the case may be, available free or at such cost of the medium or the print cost price as may be prescribed. Explanation.—For the purposes of sub-sections (3) and (4), "disseminated" means making known or communicated the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet or any other means, including inspection of offices of any public authority.‖ 14. Section 18 prescribes the powers and functions of the Central Information Commission and the State Information Commission. It reads as under:- ―18. Powers and functions of the Information Commission.— (1) Subject to the provisions of this Act, it shall be the duty of the Central Information Commission or State Information Commission, as the case may be, to receive and inquire into a complaint from any person,— (a) who has been unable to submit a request to a Central Public Information Officer or State Public Information Officer, as the case may be, either by reason that