Vikas Verma vs The Director (Mrts-I) & Cpio, ...
2016 Latest Caselaw 1702 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of decision: 2nd March, 2016.

+                       W.P.(C) No. 2927/2015

       VIKAS VERMA                                      ..... Petitioner
                        Through:     Mr. Akhil Sibal, Ms. Shraddha
                                     Deshmukh and Ms. Malavika Prasad,
                                     Advs.
                                   Versus

    THE DIRECTOR (MRTS-I) & CPIO, MINISTRY OF
    URBAN DEVELOPMENT                       ..... Respondent

Through: Mr. Vivek Goyal, CGSC with Mr. Pradeep Kumar Sharma, CGP for UOI.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. The petition impugns the decision dated 4th February, 2015 of the

Central Information Commission (CIC) constituted under the Right to

Information Act, 2005 (RTI Act) of dismissal of second appeal (File

No.CIC/KY/A/2014/000883) preferred by the petitioner against the order

dated 10th July, 2014 of the First Appellate Authority upholding the denial

dated 29th May, 2014 by the Public Information Officer (PIO) of the

respondent, "The Director (MRTS-I), Ministry of Urban Development

(MUD), New Delhi" of the information sought by the petitioner on the

grounds under Section 8(1)(i) of the RTI Act. (Though in the order of CIC

the ground of denial is mentioned as Section 8(1)(j) of the RTI Act but both

counsels agreed that it is a typographical error for Section 8(1)(i)).

2. Notice of the petition was issued and a counter affidavit has been

filed. The counsel for the petitioner stated that no rejoinder is required

thereto. The counsels were heard on 6th October, 2015 and judgment

reserved with a direction to the counsel for the respondent Union of India

(UOI) to handover the file containing the decision that all the issues relating

to Airport Line be placed before the Cabinet for consideration / directions, as

was argued. Liberty was also given to the parties to file written synopsis of

their submissions. In pursuance thereto, a synopsis has been filed by the

counsel for the petitioner and which has been perused. The counsel for the

respondent UOI has also handed over the concerned file.

3. It is the case of the petitioner:

(i) that the MUD, Govt. of India constituted a two members

Enquiry Committee to enquire into the defects in the civil structures of

the Delhi Airport Metro Express Line;

(ii) that the petitioner, from the newspaper reports gathered that the

Committee so constituted submitted its report to the MUD on 30th

March, 2013;

(iii) that the petitioner on 13th May, 2014 applied to the PIO of the

MUD for a copy of the report and supplementary notes submitted by

the said Committee along with copies of the correspondence between

the MUD and the Enquiry Committee and to also allow inspection of

copy of file notings by officers of the MUD and all records relating to

proceedings of the Enquiry Committee;

(iv) that the PIO of the office of Director (MRTS-I) of MUD vide

response dated 29th May, 2014 informed the petitioner that the various

issues relating to information sought were being put up to the

Empowered Group of Ministers (EGoM) on Mass Rapid Transit

System (MRTS) for its consideration and Section 8(1)(i) of the RTI

Act exempts from disclosure decisions of the Council of Minsters, the

reasons thereof and the material on the basis of which the decisions

were taken, till the decision has been taken and the matter is complete

or over;

(v) that the petitioner preferred a first appeal but the First Appellate

Authority of the MUD but which also vide communication dated 10th

July, 2014 informed that all issues relating to Airport Line including

findings of Enquiry Committee were being placed before the Cabinet

for consideration and hence could not be disclosed under Section

8(1)(i) of the Act. In addition, it was also reasoned that the petitioner

was an employee of Delhi Airport Metro Express Pvt. Ltd.

(DAMEPL) and there was an arbitration going on between Delhi

Metro Rail Corporation (DMRC) and DAMEPL on the issue of

termination of concession agreement and that the report of the Enquiry

Committee might be a part of the arbitration and for this reason also

could not be given;

(vi) that the petitioner being unsatisfied preferred the second appeal,

as aforesaid to the CIC and which has been dismissed by the

impugned order dated 4th February, 2015 observing that the plea taken

by the PIO under Section 8(1)(i) of the Act was justified in the eyes of

law and there is no legal flaw in the order of the PIO and of the First

Appellate Authority.

4. It is the contention of the counsel for the petitioner (a) that the

exemption under Section 8(1)(i) applies to Cabinet papers including records

of deliberations of the Council of Ministers, Secretaries and other officers;

(b) that it not the case of the respondent UOI in its counter affidavit that the

information sought has even been placed for consideration by either the

Cabinet or any Committee thereof or the Council of Ministers or Secretaries

or other Officers; (c) that what is borne out from the counter affidavit of the

respondent UOI is that at the time when information was denied, the report

of the Enquiry Committee was only being considered for being put up to the

EGoM on MRTS for its consideration and directions; (d) that admittedly the

report till date had not been put up to any EGoM and it is not even the case

of the respondent UOI in its counter affidavit that it is still under

consideration for being so put up; (e) rather, from the counter affidavit, it is

borne out that the report is still under consideration of the Board of DMRC

with a final view yet to be taken on the report; (f) however the respondent

UOI during the hearing for the first time contended that a decision had been

taken for placing the report along with the connected papers before the

Cabinet--that the said oral argument beyond the counter affidavit should not

be considered; (g) that a proposal or even a decision to refer the information

sought to the Cabinet for its consideration cannot indefinitely provide

exemption from disclosure under Section 8(1)(i); (h) without preparation of a

Cabinet note or the actual placing of the matter before the Cabinet for its

consideration, the exemption cannot be attracted; (i) that though this Court in

Union of India Vs. Pramod Kumar Jain 205 (2013) DLT 613 has held that

"Cabinet Papers" have a wider meaning in the Act and includes all the

papers pertaining to deliberations of the various Committees of the Cabinet

apart from including the papers pertaining to „records of deliberations of the

Council of Ministers‟, „records of deliberations of the Secretaries‟ and

„records of deliberations of other officers‟ and „decisions of the Council of

Ministers‟ and „material on the basis of which decision were taken‟ are just a

sub-set of the larger set of documents encompassed under the larger term

"Cabinet Papers" but CIC in decision dated 30th August, 2014 in Venkatesh

Nayak Vs. Department of Personnel & Training (2010) SCC Online 10696

has held that it is only when proposal formulated are actually taken up for

consideration by the Cabinet that they become so exempted i.e. only when a

Cabinet note is finally approved for submission to the Cabinet through the

Cabinet Secretariat will Section 8(1)(i) apply; (j) that thus a mere proposal or

decision to refer information, whose disclosure is sought, to the Cabinet

cannot possibly convert that information into „Cabinet Papers‟ and

interpreted in any other way would amount to expanding the exemption from

disclosure.

5. There is no need to elucidate the argument of the counsel for the

respondent UOI, since the same are obvious from the recording aforesaid of

the arguments of the counsel for the petitioner.

6. The counsel for the respondent UOI during the hearing handed over

copies of the file noting to the effect that a decision had been taken with the

approval of the Urban Development Minister that all the issues relating to

Airport Line would be placed before the Cabinet for considerations /

directions and that all the issues including findings of Enquiry Committee

were part of the EGoM note which would now be part of the Cabinet note. It

was to satisfy myself in this regard that the directions as aforesaid for the

counsel for the respondent UOI to produce the file had been issued.

7. I have perused the file and find (a) that since the Airport Metro Line

Project had a huge property development component to be exploited by

DMRC to generate resources and since this line was sanctioned only after it

was considered vital and further since the concessionaire i.e. DAMEPL was

supposed to run the line with borrowed money and since the likelihood of

extending the line to Gurgaon also existed, the project was sanctioned with

the permission of EGoM; (b) that considering the legal and financial

consequence of taking over of the Airport Line from DAMEPL by DMRC

on termination of contract by DAMEPL, a note was prepared by the MUD

for consideration of the EGoM; (c) the note was returned by the Cabinet

Secretariat with the instructions that the same should be circulated to the

concerned Ministers and Departments for Inter-Ministerial consultations and

a supplementary note should be prepared thereafter; (d) such supplementary

note was prepared and sent to the Cabinet Secretariat; (e) that the general

elections intervened in between and thereafter the system of EGoM was

abolished and in view thereof a note for the Cabinet was prepared; (f) that at

different times inter-ministerial consultations with ministries / departments

concerned including Department of Economic Affairs, Department of

Expenditure, Department of Legal Affairs, Ministry of Home Affairs,

Planning Commission, Department of Financial Services, Government of

National Capital Territory of Delhi were held with respect to the project; (g)

however the papers have not been put to the Cabinet as yet.

8. The question which arises for consideration is whether under Section

8(1)(i) of the RTI Act, exemption is available only qua papers which are

actually before the Cabinet or also qua papers which though are required to

be placed before the Cabinet but are under preparation and have till the date

when the information is sought not been placed before the Cabinet.

9. This Court in Pramod Kumar Jain supra has already held i) that

though there is a prohibition against disclosure of Cabinet papers, which

would include record of deliberations of the Council of Ministers, Secretaries

and other officers, such prohibition as far as RTI Act is concerned, is not for

all times to come and has a limited duration till the Council of Ministers

takes a decision in a matter and the matter is complete or over in all respects;

ii) that from the context in which the words „the matter is complete or over‟

have been used, it appears that once the decision taken by the Council of

Ministers has been given effect, by implementing the same, the prohibition

contained in Section 8(1)(i) of the RTI Act is lifted and the decision taken by

the Council of Ministers, the reasons on which the decision is based as also

the material on the basis of which the said decision was taken can be

accessed under the RTI Act; iii) a careful perusal of the proviso to Section

8(1)(i) shows that not only the decisions of the Council of Ministers and the

reasons on which the said decisions are based but also the material on the

basis of which the decisions are taken by the Council of Ministers are also

required to be disclosed, once the decision has been taken and cannot be

withheld.

10. In my opinion, the exemption granted from disclosure cannot be

defeated by allowing the disclosure of that what is exempted, before it

reaches the Cabinet. The time taken by the administrative and decision

making machinery, especially when several Ministries are involved, as in the

present case, cannot be a reason for disclosure of what is exempt therefrom.

Preparation of a note with supporting material, to be put up before the

Cabinet, takes a considerable time. In fact, a perusal of the file in the present

case shows the same to have taken years. However the same would in my

opinion not allow disclosure, once it is found that as per the rules or the

procedure or the decision already taken, the matter has to be considered and

decided by the Cabinet. The matter, in the present case, is found to be at the

stage of "cooking" for consumption of the Cabinet. If it were to be held that

the exemption is not available till the papers are before the Cabinet, it would

amount to allowing access of information which is otherwise prohibited and

defeat the purpose of the exemption.

11. Where however there is no rule or procedure or an already existing

decision for the papers to be put up before the Cabinet, information cannot

be denied indefinitely merely by mooting a proposal for putting up the same

before the Cabinet and which proposal has no basis in any earlier decision or

rules or procedure.

12. Else, when it is not in dispute as in the present case, that the papers are

required to be put up before the Cabinet, whatsoever the delay may be, they

cannot be disclosed under the RTI Act at the stage of preparation.

13. CIC in Venkatesh Nayak supra cited by the counsel for the petitioner

was concerned with a draft legislation leading to policy and with respect to

which draft, suggestions of the public were also invited; it was in this context

that it was held that exemption under Section 8(1)(i) of the RTI Act will not

apply to deliberations leading to formulation of a policy framework till such

time as the draft is submitted to the Cabinet Secretariat, with all its

necessary attachments for submission to the Cabinet, which would then be a

final form given to the draft and thereafter the draft would remain exempt

from disclosure till such time as the decision has been taken. What prevailed

with the CIC was the fact that the public was being consulted on the draft.

That is not the position here. Here, the project with respect to which

information was sought was approved with the permission of EGoM and

decisions from time to time with respect thereto are found to have the

approval of the EGoM. Now that DAMEPL (the employer of the petitioner)

is pitted in legal proceedings against DMRC and with respect whereto a note

is under preparation for putting up before the Cabinet, disclosure at this stage

would make the petitioner / his employer privy to information to which they

would not be entitled to once the note is finalized for preparation before the

Cabinet and nullify the exemption under Section 8(1)(i) of the RTI Act.

14. Supreme Court, as far back as in S.P. Gupta Vs. Union of India AIR

1982 SC 149 reiterated in Doypack Systems Pvt. Ltd. Vs. Union of India

(1988) 2 SCC 299, though not in the context of RTI Act, held that there may

be classes of documents which public interest requires should not be

disclosed, no matter what the individual documents in those classes may

contain--law recognises that there may be classes of documents which in

public interest should be immune from disclosure. It was further held that

there is one such class of documents which for years has been recognised by

the law as entitled in the public interest to be protected against disclosure and

that class consists of documents which it is really necessary for the proper

function of public service to withhold from disclosure; the documents falling

within this class are granted immunity from disclosure not because of their

contents but because of the class to which they belong--This class includes

cabinet minutes, minutes of decisions between heads of departments, high

level interdepartmental communications, papers brought into existence for

the purpose of preparing a submission to Cabinet and indeed any document

which relate to the framing of Government Policy at a high level. It was thus

held that Cabinet papers including papers brought into existence for the

purpose of preparing submission to the Cabinet are protected from

disclosure, not by reason of their contents but because of the class to which

they belong.

15. The aforesaid, in my opinion is the genesis of the exemption contained

in Section 8(1)(i) and applying the same, though of an era prior to coming

into force of RTI Act, no case for directing disclosure of information sought

is made out.

16. I therefore hold the petitioner to be not entitled to the information

sought.

17. The petition is dismissed.

No costs.

18. The file handed over by the counsel for the respondent UOI be

returned to him.

RAJIV SAHAI ENDLAW, J.

MARCH 02, 2016 „bs/gsr‟