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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.
hereunder :-

The said Application is reproduced

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-cumADM (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

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.

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

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

notwithstanding

of

this

anything

Act

shall

have

inconsistent

effect

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

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 Section8(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

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 selfinterest 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

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.

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
Dated : 29th June, 2015.

( Bhim Sen )
State Chief Information Commissioner
Himachal Pradesh
Shimla 171 002