Union Of India And Ors vs Adarsh Sharma
2013 Latest Caselaw 4684 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Date of Decision: 09.10.2013
+      W.P.(C) 7453/2011

    UNION OF INDIA AND ORS                      ..... Petitioner
                   Through: Mr Ankur Chhibber, Adv.
                   versus
    ADARSH SHARMA                         ..... Respondent
                   Through: None.
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                                JUDGMENT

V.K.JAIN, J. (ORAL)

The respondent before this Court, vide application dated

10.10.2009 sought the following information from CPIO of the Ministry

of Home Affairs with respect to one Dr. Vijay Kumar Vyas:

"1. Whether DR. VIJAY KUMAR VYAS is alive or dead.

2. Has he left India on 10.10.2009 for overseas?

3. What was his destination?"

Vide subsequent application dated 26.11.2009, the respondent

intimated the petitioner that Dr. Vijay Kumar Vyas had left for overseas

sometime in September-October, 2009, but he was declared dead on

03.09.2000. The following information was, therefore, sought from the

CPIO of MHA:

"1. DATE OF LAST Departure from INDIA

2. DESTINATION

3. AIRLINES

4. PASSPORT NO."

Vide yet another application dated 09.12.2008, the respondent

provided information such as passport number, date of departure, flight

number and destination to which late Dr. Vijay Kumar Vyas had

proceeded and sought the information desired earlier.

2. The applications submitted by the respondent were transferred by

CPIO of MHA to the Intelligence Bureau. The CPIO of Intelligence

Bureau vide communication dated 29.12.2009, informed the respondent

that in view of the provisions of Section 24(1) read with the Second

Schedule to RTI Act, 2005, the said Bureau is exempt from providing

any information. Being aggrieved from the said communication, the

respondent preferred an appeal before the Appellate Authority. The

appeal having been dismissed by the First Appellate Authority, the

respondent approached the Central Information Commission by way of

second appeal vide impugned order dated 20.07.2011. The Central

Information Commission directed as under:-

"11. Now, withstanding the fact that the Respondent No.2 is an exempt organization under Section 24 (1) of the RTI Act, it is nevertheless the duty of Respondent No.2, as an intelligence and security organization to inquire into the allegations made by the Appellant in this case. Not discharging its duty would tantamount to „Nonfeasance‟, i.e., the omission of acts which a man was by law bound to do. The following excerpts from the judgement of Division Bench of the Hon‟ble Gujarat High Court in Union of India (UOI) and Ors. Vs. V. Shankaran and Anr.[2008 (4) GLT 885] is of relevance here:

"25. [...] "Official misconduct" defines in Black‟s Law Dictionary (7th Edition) as a public officer‟s corrupt violation of assigned duties by malfeasance; misfeasance; or nonfeasance, which is also termed as misconduct in office; misbehaviour in office; malconduct in office; misdemeanour in office; corruption in office and official corruption."

12. Thus, if the Intelligence Bureau simply refuses to take cognizance of allegations which are clearly based on reasonably sound legal evidence and omits to probe into such allegations when it was lawfully bound to do so, then such nonfeasance clearly amounts to an act of Corruption. If the nonfeasance results in allowing some allegedly dead person named Dr. Vijay Kumar Vyas to escape from being brought to justice in a pending legal proceeding involving him before the Hon‟ble High Court of Rajasthan, then it will amount to

corrupt practice on part of Respondent No.2. Thus, unless the Respondent No.2 inquires into the truthfulness of the Appellant‟s allegations with respect to the status of Dr. Vijay Kumar Vyas, it will clearly appear as if the Respondent No.2 has indulged in corrupt practices.

13. Thus, the facts and circumstances of the present case squarely attract the Proviso (I) to Section 24 (1) of the RTI Act and the information sought by the Appellant clearly relates to such information which pertains to allegation of corruption against the Respondent No.2.

14. In light of the above observations, reasoning and findings, the Commission hereby directs the CPIO of the Respondent NO.2 to provide information to the Appellant as to whether at all Dr. Vijay Kumar Vyas (alleged to be dead) departed from India for Auckland, New Zealand via Flight No.CX708 on 10/10/2009 on Passport No.H-0980681. The information shall be furnished within 20 days of receiving this Order."

Being aggrieved from the direction given by the Commission, the

petitioner is before this Court by way of this writ petition.

3. As regards information sought by the respondent vide application

dated 10.10.2009, the desired information could not have been provided

by the petitioner in the absence of particulars as to when he left India,

and vide which particular flight. The same would be the position with

respect to the information sought vide second application dated

26.11.2009. However, vide application dated 09.12.2009, the

respondent gave particulars such as passport number of Dr. Vijay

Kumar Vyas, the date of departure from India, flight number as well as

the destination for which he was alleged to have left. The Immigration

Office at the Airport is a wing of Intelligence Bureau and every person

going out of India is required to obtain immigration clearance before, he

can board the flight. Therefore, in case Dr. Vijay Kumar Vyas left India

on 10.10.2009 for Auckland on flight No. CX708, such an information

can be available with the Immigration Office controlled by Intelligence

Bureau. However, the difficulty in the matter is Intelligence Bureau is

one of the organizations included in the Second Schedule appended to

the Right to Information Act and its name appears at Serial No. 1 of the

Schedule. Section 24 of the RTI Act to the extent it is relevant reads as

under:

"24. Act not to apply to certain organizations. - (1) Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government.

Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section:"

Therefore, the provisions of the RTI Act would not apply to the

aforesaid organisation except in the matters relating to allegations of

corruption and human rights violation.

4. The information sought by the respondent was neither any

information related to the allegations of corruption in Intelligence

Bureau nor an information related to the human rights violations. The

Commission, therefore, was clearly wrong in directing the Intelligence

Bureau to provide the said information to the respondent under the

provisions of Right to Information Act. Therefore, the order passed

by the Central Information Commission being contrary to the provisions

of the Act, cannot be sustained and is hereby quashed.

5. However, in my view, if an information of the nature sought by

the respondent is easily available with the Intelligence Bureau, the

agency would be well-advised in assisting a citizen, by providing such

an information, despite the fact that it cannot be accessed as a matter of

right under the provisions of Right to Information Act. It appears that

there is a litigation going on in Rajasthan High Court between the

respondent and Dr. Vijay Kumar Vyas. It also appears that the

respondent has a serious doubt as to whether Dr. Vijay Kumar Vyas,

who was reported to have died on 03.09.2009, has actually died or not.

The Intelligence Bureau could possibly help in such matters by

providing information as to whether Dr. Vyas had actually left India on

10.10.2009 for Auckland on flight No CX708. Therefore, while

allowing the writ petition, I direct the Intelligence Bureau to consider

the request made by the respondent on administrative side and take an

appropriate decision thereon within four weeks from today. It is again

made clear that information of this nature cannot be sought as a matter

of right and it would be well within the discretion of the Intelligence

Bureau whether to supply such information or not. Whether a person

aggrieved from refusal to provide such information can approach this

Court under Article 226 of the Constitution, is a matter which does not

arise for consideration in this petition.

The writ petition stands disposed of. No order as to costs.

V.K. JAIN, J

OCTOBER 09, 2013 BG