STATE INFORMATION COMMISSION

HIMACHAL PRADESH

MAJITHA HOUSE

SHIMLA 171 002

Before : Shri Bhim Sen & Shri K.D. Batish

Date of Institution : 04-12-2014

Date of Decision : 29-06-2015

Appeal No. 0428/2014-15

Appellant : Shri Dev Ashish Bhattacharya, B-5, Pocket-7, Block-54,

Kendriya Vihar, Sector-82, Noida (U.P.) 201 304

Present

Versus

(i) P.I.O.-cum- ADM (L&O), Shimla Shri D.K. Rattan

Respondent No. 1 Present

(ii) Smt. Priyanka Gandhi Vadra through Shri S. Ramakrishanan, SPA

and Counsel Shri Gautam Sood

Respondent No. 2 Present

BRIEF FACTS OF THE CASE

The Appellant filed an RTI Application on 2-7-2014 before the PIO

of the office of Deputy Commissioner, Shimla and sought information

regarding the permission to purchase agricultural land by Smt. Priyanka

Gandhi Vadra in District Shimla. The said Application is reproduced

hereunder :-

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1) Kindly provide me the details of the piece of lands being allowed to be purchased by Smt. Priyanka Gandhi/Vadra at Shimla District

by the Government of Himachal Pradesh. The details should

include the certified copies of all the documents, note sheets, file

notings, etc., from the initiation to the finalisation of the said land

deal.

2) Kindly provide me the certified copies of the sale deeds of the lands being purchased by Smt. Priyanka Gandhi/Vadra at Shimla

District.

3) Kindly provide me the details of relaxations being given in rules for the purchase of the above said land purchase process by the

Government of Himachal Pradesh to Smt. Priyanka Gandhi/Vadra.

4) What is the status of land use, as on date, of the above said lands of Smt. Priyanka Gandhi/Vadra as per your record?

5) Has any communication being issued to Smt. Priyanka Gandhi/Vadra by the authorities for not fulfilling the norms of the

land use within the stipulated period of time? If yes, then kindly

provide the copies of the same. If not, then, provide the reasons

for not doing so.

The PIO-cum-Additional District Magistrate (L&O) transferred the

said application to PIO-cum-Tehsildar, Shimla (Rural) on 21-7-2014 under

Section-6(3) of the RTI Act. On 6-8-2014, the PIO-cum-ADM (L&O),

Shimla issued a Notice to Shri Kehar Singh Khachi, Special Power of

Attorney (SPA) of Smt. Priyanka Gandhi under Section-11 of the RTI Act

treating it as third party information. On 7-8-2014, Tehsildar (Rural),

Shimla demanded additional Fee of ` 578/- as the cost of 30 Pages of

Information and Postal Charges. When the Appellant contacted Tehsildar

(Rural), Shimla about the additional amount, he was told that the entire file

has been called back by the ADM (L&O) and that the information could not

be supplied under the changed circumstances. On 25-8-2014, the PIO-cum-

ADM (L&O) disposed of the RTI Application in view of the objections

from Shri Kehar Singh Khachi, the SPA of Smt. Priyanka Gandhi Vadra at

the time of the purchase of land. The PIO observed that information

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pertaining to Query Nos. 1 & 2 could not be given, but allowed the

disclosure of the information pertaining to Query Nos. 3, 4 & 5 of the RTI

Application dated 2-7-2014. In the said Order, the PIO asked the SPA

Shri Khachi to provide the name and address of the present SPA of Smt.

Priyanka Gandhi Vadra and liberty was given to the parties to file Appeal

within 30 days before the First Appellate Authority (FAA). The Appellant

filed First Appeal on 2-9-2014 against the Order of PIO-cum-ADM (L&O).

On 28-10-2014, the First Appellate Authority-cum-Deputy Commissioner,

Shimla remanded the case to PIO-cum-ADM (L&O) for fresh adjudication,

as according to him, Shri Kehar Singh Khachi was not the SPA of Smt.

Priyanka Gandhi Vadra at the time of submission of the RTI Application

dated 2-7-2014. On 28-11-2014, the PIO-cum-ADM (L&O), Shimla

disposed of the RTI Application by a detailed order after obtaining the

response of Shri S. Ramakrishanan, the new SPA of Smt. Priyanka Gandhi.

The PIO allowed the disclosure of information on all the points. On

23-12-2014, the new SPA of Smt. Priyanka Gandhi Vadra filed an Appeal

before the First Appellate Authority-cum-Deputy Commissioner, Shimla

and on the same day, the First Appellate Authority passed an Interim Order

staying the operation of Order dated 28-11-2014. On 27-1-2015, the First

Appellate Authority-cum-Deputy Commissioner, Shimla allowed the

Appeal of Smt. Priyanka Gandhi and set aside the Order dated 28-11-2014

of the PIO-cum-ADM (L&O), Shimla. The present Appellant first filed

Appeal against the Interim Order dated 23-12-2014 and later on filed the

amended Second Appeal, with the permission of the Commission, on

20-3-2015. It is this Order passed by the FAA on 27-1-2015, which is under

challenge in this Second Appeal.

Parties were heard in detail and have also filed written arguments

alongwith a Judgement of the Honble High Court of Himachal Pradesh on

behalf of the Third Party. This Commission has to decide the legality of the

Order passed by the FAA on 27-1-2015.

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Under the RTI Act, 2005, the PIO is required to see if exemptions

under Section-8 are applicable or not? If he feels that any of the exemptions

is applicable, he can refuse to give information and intimate the information

seeker regarding denial of information by quoting relevant provisions of

Section-8. If he feels that none of the exemptions is applicable and he

intends to disclose the information in public interest, he will issue notice

under Section-11(1) to the Third Party within 5 days, if the information

relates to the said Third Party. A perusal of the provisions of Section-11

shows that if the objection of the third party is based on trade or commercial

secrets protected by Law, only then information can be refused. In any

other case, disclosure may be allowed, if the public interest in disclosure

outweighs in importance, any possible harm or injury to the interests of such

third party.

The following part of the order passed by the FAA on 27-1-2015 is

reproduced here under :-

The Ld. Counsel emphasised in his arguments stating

that Smt. Priyanka Gandhi Vadra is an VVIP provided with

rare security cover under Special Protection Group and the

opinion of the SPG is final and very important in this regard

which have strongly objected to the disclosure of the

information for high security reasons of the appellant. The Ld.

Counsel further argued that this case is covered under the

Special Protection Group Act, 1988 (as amended in 1991, 1994

& 1999) and such information is also barred under

Section-8(e), (g) and (j) of the Right to Information Act, 2005.

Disclosure of the information may endanger the life or physical

safety of the appellant due to the source of information or

assistance derived on the basis of the disclosure of such

information. Clause (j) of Section-8 of the RTI Act also

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emphasises on the withholding of information as the disclosure

of the same would cause unwarranted invasion on the privacy

of the individual.

The FAA is very much impressed with the opinion of SPG Director

expressed by him in a private communication purported to be made with the

Third Party. The Right to Information Act has overriding effect in view of

Section-22 of the Act, which is reproduced here-in-below :-

22. The provisions of this Act shall have effect

notwithstanding anything inconsistent therewith

contained in the Official Secrets Act, 1923, and any

other law for the time being in force or in any

instrument having effect by virtue of any law other than

this Act.

In view of the above said provision, the Judgement of the Honble

High Court has been misunderstood by the FAA, as all citizens are equal

before Law and no one can say that a VIP is not covered by the RTI Act.

Under the Election Law also, all candidates, including the SPG

Protectees, are required to declare their moveable and immoveable assets

alongwith details of the property. No SPG Protectee including the Prime

Minister of India has ever taken this plea before the Election Commission

that his/her life will be endangered by the disclosure of details of his/her

immoveable property. This is a strange logic advanced by the FAA and is

totally irrational. The FAA has given undue weightage to an unverified

letter allegedly written by the SPG Director. Under Section-10(1)(C) of the

SPG Act, 1988, no member of the Group shall, without the previous

sanction in writing of the Central Government or of the prescribed authority,

communicate with the Press or publish or cause to be published any book,

letter or other document except where such communication or publication is

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in the bonafide discharge of his duties or is of a purely literary, artistic or

scientific character or is of a prescribed nature. It is also important to note

that SPG provides protection to the person and not to his properties. The

said letter written by SPG Director to Smt. Priyanka Gandhi Vadra, even if

true, is unauthorised and irrelevant as he has no authority to issue such letter

to private persons. Reference has also been made by the FAA to Section-

8(1)(e), (g), & (j) of the RTI Act without elaborating as to how these

Sections are applicable in the present case? Section-11(1) states about one

ground to deny the information i.e. Trade or Commercial Secrets protected

by Law. It is also held that there is no fiduciary relationship between a

Public Authority and a Citizen. Information under the control of Public

Authority is property of the nation and any citizen can access it.

Government Information is a national resource. Neither the particular

Government of the day nor public officials create information for their own

benefit. This information is generated for purposes related to the legitimate

discharge of their duties of office, and for the service of the public for

whose benefit the institutions of Government exist, and who ultimately

(through one kind of import or another) fund the institutions of Government

and the salaries of officials. It follows that Government and officials are

trustees of this information for the people.

In the case of State of Uttar Pradesh Versus Raj Narain, AIR

1975 SC 865 Page, the Honble Supreme Court observed that

In a government of responsibility like ours, where all

the agents of public must be responsible for their conduct,

there can be but few secrets. The people of this country have

a right to know every public act, everything that is done in a

public way, by their public functionaries. They are entitled to

know the particulars of every public transaction in all its

bearing. The right to know, which is derived from the concept

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of freedom of speech, though not absolute, is a factor which

should make one wary, when secrecy is claimed for

transactions which can, at any rate, have no repercussion on

public security. To cover with veil of secrecy, the common

routine business, is not in the interest of the public. Such

secrecy can seldom be legitimately desired. It is generally

desired for the purpose of parties and politics or personal self-

interest or bureaucratic routine. The responsibility of

officials to explain and to justify their acts is the chief

safeguard against oppression of corruption.

Exemption from disclosure of information under Section-8(1)(g) of

the RTI Act is available to Public Authorities involved in law enforcement.

This exemption is not available to revenue authorities, who are involved in

granting permission under the HP Tenancy & Land Reforms Act. In respect

of Section-8(1)(j) of the RTI Act, we must note that there is a provision at

the end, which says that information, which cannot be denied to the

Parliament or a State Legislature, shall not be denied to any person. The

State Government has informed HP Vidhan Sabha about the permission

granted to non-agriculturists to purchase land in Himachal Pradesh on

various occasions. Therefore, such information cannot be denied to the

Appellant.

It should also be noted that privacy of a person encompasses the

personal intimacies of the home, the family, marriage, motherhood,

procreation, child rearing and of the like nature. A person has right to keep

his private information or his privacy guarded from disclosure. It is this

right, which has come to be recognised as fundamental to a persons life and

liberty and is accordingly protected from unwarranted/unauthorised invasion

under the Act and even this privacy right can be overridden in larger public

interest. The provisions of Section-8(1)(j) are not at all applicable in the

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present case. In the present case, the information is being sought regarding

the permission granted by the State Government to the third party, which is

a public activity and cannot be described as private information and is not

part of persons life and liberty and not protected as a fundamental right. A

perusal of the Order of FAA shows that there is total non-application of

mind. Only Sections have been quoted without showing their applicability

to the facts of the case.

In the present case, RTI Application was filed on 2-7-2014, but the

PIO and the FAA acted in such a manner that no notice was issued to Smt.

Priyanka Gandhi Vadra within 5 days of the receipt of the Application and

efforts were being made to contact her through SPA. The Appellant, in his

RTI Application, did not refer to any Special Power of Attorney. Still

notice was issued to one Shri Kehar Singh Khachi. He, in his letter, had

specifically mentioned that he was no more the Attorney of Smt. Priyanka

Gandhi Vadra, but still his objections were wrongly entertained and an order

was passed on 25-8-2014 and RTI Application was partly allowed. When

the Applicant filed First Appeal against this order, the FAA remanded the

case to the PIO and directed to implead the concerned party or her

representative, whose name was not there before the FAA. The second

SPA Shri S. Ramakrishanan was appointed SPA on 27-10-2014. It means

that from 2-7-2014 to 27-10-2014, there was no SPA for Smt. Priyanka

Gandhi Vadra and RTI Act gives a time of 10 days to the third party to

make submissions against disclosure and in this case, four valuable months

were wasted. Again 20 days time was granted to the 2nd SPA to file same

and similar objections, which stood earlier decided in the case of Shri Kehar

Singh Khachi. And when the PIO, after wasting 5 months, allowed the RTI

Application, the FAA stayed the operation of the Order of PIO through an

Interim Order and ultimately dismissed the RTI Application of the

Applicant.

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Section-11(1) of the RTI Act uses the term Public Interest and

Section-8(1)(j) uses the term Larger Public Interest. Chapter-11 of HP

Tenancy & Land Reforms Act, 1972, deals with Control on transfer of

land in Himachal Pradesh. Section-118(2)(h) deals with transfer of land

in favour of non-agriculturists with the permission of the State

Government for the purposes that may be prescribed. It is also provided

that the land has to be put to use within two years or further such period not

exceeding one year, as may be allowed by the State Government for reasons

to be recorded in writing, to be counted from the day on which the Sale

Deed of Land is registered and if he fails to do so or diverts, without the

permission of State Government, the said user for any other purpose, the

land so purchased by him shall vest in the State Government free from all

encumbrances.

The vires of Section-118 of the Act has been upheld in Case titled;

Surdarshna Devi Versus Union of India ( I.L.R. 1978 HP 355 ) in

which it was held as under :-

The statement of objects and reasons to the Himachal

Pradesh Tenancy and Land Reforms Act makes a reference to

restrictions imposed on purchase of land by non-agriculturists

with a view to avoid concentration of wealth in the hands of

non-agriculturists moneyed class. It is obvious that the

agricultural land in the State like Himachal Pradesh would be

very much limited in view of its mountainous terrain. If this

land is allowed to go indiscriminately in the hands of those

who can over bid an usual customer, it is very obvious that

ultimately the very object for which the Act was enacted would

be lost. Non-agriculturists, who have not evinced any interest

in the agriculture until now, would, by the sheer strength of

their money power be able to over bid the agriculturists, and a

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class of society would emerge which would be interested not

so much in the improvement of agriculture but in the

investment of unused, and in some case, undisclosed

finances. Such an incentive would be important to them in

view of the fact that income from agriculture is exempt from

income-tax. Therefore, if one of the objects of legislature was

to prevent the limited land resources of the State from going

in the hands of financial sharks, it cannot be said that

objective was purposeless.

It is clear that if agricultural land is permitted to be purchased by a

non-agriculturist for a specific purpose, a citizen has a right to know about

the terms and conditions of permission and compliance or non-compliance

by the purchaser and action taken by the Public Authority in the matter. If

the information has a bearing on the state of the economy; the moral values

in the society; the environment; national safety; or the like; the same would

qualify as larger public interest.

The following observations made by the Honble Supreme Court in

Case titled; S.P. Gupta Versus Union of India 1981 (Supp.) SCC

1987 are relevant to mention :-

The demand for openness in the government is based

principally on two reasons. It is now widely accepted that

democracy does not consist merely in people exercising their

franchise once in five years to choose their rulers and, once

the vote is cast, then retiring in passivity and not taking any

interest in the government. Today it is common ground that

democracy has a more positive content and its orchestration

has to be continuous and pervasive. This means inter alia

that people should not only cast intelligent and rational votes

but should also exercise sound judgment on the conduct of

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the government and the merits of public policies, so that

democracy does not remain merely a sporadic exercise in

voting but becomes a continuous process of government an

attitude and habit of mind. But this important role people can

fulfill in a democracy only if it is an open government where

there is full access to information in regard to the functioning

of the government.

In view of the observations made above, the Order of

FAA dated 27-1-2015 is hereby set aside being contrary to Law

and against the spirit of RTI Act. Accordingly, we pass the

following Order :-

1) Appeal is allowed, as disclosure of information in this

Case is in larger public interest.

2) PIO is directed to disclose the information within 10

days from the date of announcement of the Order.

3) Let a Show Cause Notice be issued under Section-20

of the RTI Act to the FAA, the PIO-cum-ADM

(L&O) and the PIO-cum-Tehsildar, Shimla (Rural) as

to why penalty should not be imposed upon them for

having caused delay in providing the information to

the Applicant/Appellant. List the Case for further

proceedings on 23-7-2015.

Announced

( K.D. Batish )

State Information Commissioner

Himachal Pradesh

Shimla 171 002

( Bhim Sen )

State Chief Information Commissioner

Himachal Pradesh

Shimla 171 002

Dated : 29th June, 2015.