CENTRAL INFORMATION COMMISSION

Transcription

1 CENTRAL INFORMATION COMMISSION (Room No.315, B Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi ) Prof. M. Sridhar Acharyulu (Madabhushi Sridhar) Central Information Commissioner CIC/SA/A/2014/001212, CIC/SA/A/2015/ Prem Chand v. Land & Buildings Dept. Appellant : Prem Chand Respondent : Land & Building Department Date of hearing : Date of decision : Information Commissioner : Prof. M. Sridhar Acharyulu (Madabhushi Sridhar) Result : Disposed of with direction. Background 1. Mr. Prem Chand filed RTI request on for action taken on his application for alternate plot for his plot acquired by GNCTD, and when compensation will be paid. In First Appeal he was advised to see his seniority number in the list, which he could not find on website. L & B department told Commission in second appeal that appellant was seeking 1979 information which needs to be physically verified. Commission gave one month to check and inform. Appellant s second appeal No. CIC/SA/A/2015/ is taken up together with case for compliance of order in CIC/SA/A/2014/ and heard finally on and decision on

2 2. This is a second RTI request on similar lines as first was not answered. First appellate authority directed appellant to check seniority list on website. He approached CIC in second appeal. He alleged that the officers in L & B demanded bribe, then turned down his application saying he did not file ownership documents. 3. Officer from L & B claimed file mentioned could not be traced, though they searched as per the number given by appellant. Appellant claimed that till 1993 he went round the office several times without use. Later respondent said that his application was rejected and compensation has to be decided by LAC only. File supposed to be with L & B 4. The letter dated signed by Mr. Mahesh Prasad, Asstt. Housing Commissioner ( R&R) of L & B showed that such letter was generated by their own office hence they should trace it and inform the appellant about his claim. The Commission cannot accept the illegal defence of L & B that file is not traceable or file is missing without proof of any action or sincere effort to trace them. The Commission issued show cause notice to CPIO Mrs Usha Chaturvedi besides seeking explanation why compensation should not be paid to the appellant. 5. During hearing on , CPIO claimed to have taken lot of pains to search out file related to village Sarai Pipal Thala, but failed. As per responses from authority, some properties were demolished during Emergency period ( ). Mrs Usha Chaturvedi added that on inquiry from record room it has come to notice that RR cell was functioning during Emergency, the said file was not found at serial number 49 therein. Thereafter RR cell became defunct and that no action could be taken on this matter after lapse of 35 years. The CPIO reiterated claim of missing file. However, she has stated that a register had been received from record room which shows that 541 cases from Sarai Pipal Thala were rejected and his name was reflected at Sl No 49. Apparently appellant was not informed why his claim was rejected. 2

3 6. Though Commission waited for 100 days, there was neither positive effort nor information about the file. Then on Commission sought the offices of the Lieutenant Governor of GNCTD, the Chief Minister and the Home Minister of Union of India, to show cause as to why not value of land be paid as compensation to the appellant and the L & B to depute a responsible officer well aware of the matter along with the PIO and also directed both the parties to file written statements in the form of affidavits. Case was posted to Proceedings on Ld Counsel Mr. Sanjay Kumar Pathak presented elaborate arguments. The Commission gave further opportunity to the administration to address the issue of 541 property owners including appellant, whose plots were acquired but L & B Office lost the file. The Commission reiterated the need for planning to pay compensation and asked why it should not order the same, giving time up to Proceedings on Appellant Mr. Prem Chand, his neighbor Mr VK Sharma, CPIO Mrs Usha Chaturvedi, along with Counsel Mr. Sanjay Pathak are present. Mrs Usha Chaturedi filed additional affidavit, but no information was given. Files were not traced. Nothing was shown to say about efforts, if any, to trace the files. Affidavits of CPIO Mrs. Usha Chaturvedi 9. Learned Counsel for the respondents filed an affidavit on and additional affidavit on 23 rd May 2016 by Mrs. Usha Chaturvedi, CPIO of the L & B Department. In her additional affidavit she agreed that the obligation to pay compensation flows from statute, i.e., the Land Acquisition Act, but providing alternative plot is not a statutory obligation. She stated that alleged application dated was not received by their department. In Para 12, she agreed that the 3

4 appellant was entitled to be considered for allotment of alternative plot in lieu of acquisition of his land under the LA Act in view of the Scheme of Large Scale Acquisition Development and Disposal of Land formulated by Ministry of Home Affairs, Govt. of India which came into effect from 2 nd May 1961 (in short 1961 scheme) and not under any Relief & Rehabilitation Scheme. In this Affidavit, the CPIO raised some technical objections and excuses in general to say how such applications could be rejected on some or the other pretext. 10. The grievance of the appellant was heard by PGC on 7 th April 2016, but it was closed without any conclusion. Appellant wrote to PGC that he has submitted documents three times before L & B, he approached three times and reached Shri Trilokchand LAC North five times, but he was never informed by the L & B about need to submit documents. Appellant told the PGC that his file was misplaced by L & B. He alleged that no efforts were made by the L & B to search the file, and apprehended that missing file might have contained important papers authenticating his right to compensation or order to pay him for land acquired. 11. Respondent contended that the compensation payable under Section 19 (8)(b) is "for any loss or other detriment suffered", on account of the denial of the information under the RTI Act and not just about any loss or detriment suffered by the applicant. In NTPC Ltd. v. Mohd. Samad Khan [ILR (2010) 6 DEL 55, Para 17] it was held that compensation can be given under 19(8)(vi) only in case of loss or detriment suffered due to denial of information. It emphasized the necessity of factual determination of loss before awarding the compensation. Para 17 says: Para 17. The ambit of the power under Section 19 (8)(b) has to be determined by the scope of the powers of the CIC generally under Section 19, and as an Appellate Authority in terms of Section 19 (1) to (8). The compensation payable under Section 19 (8)(b) is "for any loss or other detriment suffered", on account of the denial of the information under the RTI Act and not just about any loss or detriment suffered by the applicant. In the context of the present case if the CIC had found that the Respondent was unfairly denied by the NTPC, the information sought for by him, the CIC was next to determine the precise loss suffered by the Respondent on account of such denial of information. Thereafter it could pass appropriate orders to compensate the 4

5 Respondent for the loss or detriment suffered. In the present case, there is no finding by the CIC that the NTPC had in its records a survey report which it unfairly denied to the Respondent. This factual determination was essential for the CIC to proceed to determine the loss suffered by the Respondent on account of the denial of such information. Thereafter under Section 19(8) (b) RTI Act it was in the discretion of the CIC to award compensation. Even while exercising that power a finding would have to be rendered by the CIC on the extent of loss, even approximately, suffered by the person to whom such information ought to have been furnished. This is because the compensation that has to be awarded under Section 19 (8)(b) is for the loss or the detriment suffered "on account of the denial of such information". Considering that the Respondent is not a resident of Delhi and has come here only for the purposes of this case, it is directed that the learned counsel for the NTPC will arrange to have another set of the entire information and documents in terms of para 16 (i) of the impugned order furnished to the Respondent by tomorrow, i.e., 10th March Mr. Bharat Sangal, the learned counsel appearing for the NTPC, states that if the Respondent visits his chamber tomorrow, i.e., 10th March 2010 at 11 a.m., he will arrange to have the entire information and documents, as directed by the CIC in para 16 (i) of the impugned order, furnished to the Respondent. The NTPC will also pay to the Respondent a sum of Rs.5,000/ towards costs of his having to stay back in Delhi to receive the information. This costs will be paid to the Respondent when he visits the chamber of the learned counsel for the Petitioner tomorrow. 12. It is clear that the Commission s direction to give compensation for the loss was upheld by the Delhi High Court. NTPC case cited by respondents will come to the rescue of appellant. The Parliament repeated provision of compensation in two words it says loss and other detriment suffered. The loss arising out of denial of information under RTI is covered by first word. Next loss intended to be covered is other detriment suffered. The law makers wanted to compensate for loss arising out of denial of information and other detriment also. In this case because of missing file, the appellant suffered unending waiting, went round offices for decades that loss has to be compensated. Another detriment he suffered is the loss of land which was not compensated. This also has arisen out of denial of information, i.e., missing of file. 13. Respondents referred to Harpal Singh Gill V DDA and others, wherein the HC dismissed the writ petition saying that it was hopelessly debarred by inordinate delay. The learned counsel for the Public Authority stated an application under RTI could not be used to revive the grievance if any arose decades ago. He also pleaded that the CIC is not having jurisdiction for 5

6 assessing/awarding compensation or value for the acquired land as the land Acquisition Collector alone is responsible officer to assess the value of the land acquired under Sections 9 and 10 of old land acquisition act. He also contended that appellant did not approach the LAC Department concerned that is North District hence he is not eligible for allotment of alternate plot. 14. This case also will not come to rescue of the respondent, but to rescue of appellant. Hopelessly inefficient department which loses the files of appellant and in a helpless situation in 541 owners claim, has no moral or legal authority to say appellant is hopelessly delayed. The history of his struggle shows that appellant was roaming around L & B and other offices since decades. 15. The proceedings before the Commission are not adversarial proceedings where the Counsel can raise such hyper technical issues deny the rights of appellant. The public authority should understand that the RTI is meant for answerability and accountability and to correct the systems /offices which are not accountable and answerable. Appellant raised the question of lack of responsive mechanism and corruption ridden working of employees, who did not feel any responsibility to discharge their duty of resolving his grievance caused by inefficient functioning reflected by missing file. The rule of law demands that appellant should not be deprived of his land without compensation simply because file was missing or public authority s governance was deficient. 16. Ms Usha Chaturvedi, Dy. Secretary (alternative) Land and building Department GNCTD, in her reply affidavit dated did not answer the questions posed by the Commission whether the public authority informed 541 property owners of Sarai Pipal Thala whose properties were acquired and demolished by the Government of Delhi that as to what documents they need to submit and also how the Public Authority was going to compensate these owners. Instead she has dealt with various provisions of law and judgments. She submitted that there is no basis to 6

7 presume that the same 541 had not been informed. She raised a presumption under Section 114(1)(e) of Evidence Act that judicial and official acts have been regularly performed. Commission finds that the CPIO and the officer who is in charge alternative plots has not answered whether the PA informed 541 owners or not, she has attempted to take shelter under legal presumption while it is evident that she has no material to show that information was sent to the owners about the requirement of documents. Mrs. Usha Chaturvedi filed additional affidavit on citing 6 cases instead of providing information. She questioned competence of Commission to pass orders it passed. She disputed date, address etc of the letter and contended that Commission cannot determine disputed facts. Then she claimed that the letter dated was not delivered to or received in Land and Building department. With these excuses, can the public authority coverup the effect of loss of file. 17. However, most important, she agreed that the appellant was entitled to be considered to the allotment of alternative plot in lieu of acquisition of his land under the LA Act in view of the Scheme of Large Scale Acquisition, development and the disposal of land formulated by Ministry of Home Affairs Government of India which came into effect on and not under any relief and Rehabilitation scheme. 18. In para 13 she submitted that a bare reading of documents filed by appellant indicated that appellant has not received any compensation, thus she assumed that appellant did not apply for allotment of alternative plot immediately or in She also claimed that Delhi administration announced Amnesty Scheme with wide publicity in newspapers inviting land owners to apply for alternate plots. She also claimed that the applications received beyond cut off date of are liable to be rejected being time barred. Quoting the judgments of Delhi High Court in different cases, she claimed applicant was guilty of delay and laches in pursuing rare cases. This is most unreasonable contention. The department is in fact guilty of delay, laches, lethargy, red tape and corruption in case of appellant. 7

8 19. She stated referred disposal of case by Public Grievance Commission which was responded by office of LAC(North Delhi) as follows: 1. As per the record of the payment in r/o item No.250 Kh. No.56 area measuring 12 bigha, was made to ADJ Court on dated for Rs / and compensation of Rs paid to Sh. Sher Singh S/o Poonam on for an area measuring 200 square yards. 2. Compensation in r/o item no.74 kh. No.64 area measuting (8 130) is entered in N.M. in the name of Mahender Singh S/o Sardar Singh Gurbachan Singh s/o Jagjeet Singh and Jamna Devi, w/o Bhura Ram. Appellant s pathetic story: 20. All the above claims and contentions of PIO are denied by the appellant. Mr. Prem Chand and his helping friend Mr Sharma expressed shock and dismay the way representatives of public authority tried to suppress the fact that the concerned file missing and it was not in a position to give any information about non payment of compensation and non allotment of alternative plot. He narrated as follows: a) I am an old man of 80 years. On , I purchased a plot of land measuring 200 sq. yard, bearing Khasra no , in Sarai Pipal Thala, Mohindra Park Delhi, Deed executed on and registered in books of Sub registrar No.1 Delhi, bearing No.3618 dated in my favour. I got constructed one room and boundary walls by Mr. Laxmi Gupta, contractor in May b) I am a poor old man, brought up my five daughters and one son, when retired from DCM, I was getting about Rs.2000/ at my retirement. I purchased the said plot after withdrawal of my PF. My wife got into depression due to loss of our hard earned life saving and died on , which shook whole of our family. c) In 1976, land of Sarai Pipal Thala including my 200 sq yards land in Khasra No was acquired by the Land & Building Department and there a DDA colony Jhangir Puri was built. d) As per 1961 Scheme, I applied for alternate plot/compensation of the plot vide my application dated , by Diary receipt no.4568 of R&R Cell of L&B Deptt, giving me a receipt. e) I received a letter No. F.39(91)(350)/78 L&B/RR/8320 dated of Sh.C L Raizada, Asstt. Housing Commissioner (RR), asking me to provide the necessary information with the originals documents in his office on at 2.00 PM. I appeared personally before the officer 8

9 with original documents of land and other information with which Shri C L Raizada, Asstt. Housing Commissioner (RR) was fully satisfied. I also provided copies of the originals documents for their doing the needful. Sh. Raizada had promised for early settlement with advise to be in touch with his PA. PA of Sh. Raizada informed me that the matter was with higher authorities, and assured to communicate the decision after return. I received letter No. F.39 (91)/350/78 L&B/RR on , signed by Sh. Mahesh Prasad, the Asstt. Housing Commissioner (RR), informing that I failed to adduce documentary evidence/proof of Boundary wall and one room/kitchen, though I have receipts of payment to the contractor, which were duly verified & agreed on by Sh.C L Raizada, Asstt. Housing Commissioner (RR). I told them that for alternate plot/compensation proof of land ownership enough. I requested meeting with the Asstt. Commissioner but I was not given any opportunity. f) DDA wrote letter no. 39(91)(350)/78/ R&R/11536 dated informing me that alternate plot could not be acceded and advised me to contact L&B Deptt (Alternate Cell) R.N 116 Vikas Bhawan New Delhi. I have appeared before Sh. Mahesh Prasad, Asstt. Housing Commissioner (R&R) in Dec.1980, requested him for compensation at the earliest. He wrote to Executive officer, DDA in May 1980 in response to letter No. 39(91) /350/78L&B / RR dated , with request to settle my case. g) After several letters to LG and MPs etc, I have received letter No.F1(30)2000/L&B/ DDA /5923 dated , addressed to Secretary L&B Dept for ATR. There was no response. h) During March 1980 to May 1989 also I requested several times for a personal hearing but no opportunity was given, despite fulfilling all the formalities. i) On sent a registered A/D Notice under section 53(B) of DDA Act., through my advocate P K Rawal, to DDA with copy endorsed to Land Acquisition Collector, Nerela circle, Tis Hazari Court, Delhi. I again submitted fresh application form for compensation /alternate plot on to L&B dept and a copy to DDA, vide registered post no. 364 and 363 respectively, to the dept. j) On I wrote request letter to Smt. Geeta Sagar, Joint secretary, (Land & Building Deptt.) Delhi Administration Delhi, Under Postal certificate, no 1171 seeking compensation, giving reference of Notification dated issued by Land and building Deptt. in the newspaper with regard to plot/land acquired by Delhi Govt., during emergency, stating that whosoever has not got the compensation and Plot/land, shall apply for the same up to I was not aware of the notification as I am not educated. Being poor I was not even purchasing any newspaper. The L&B Dept. wrote on [letter No.F.39(91)(350)/78 L&B/RR/8320] to furnish certain information, which I supplied on at 2.00PM., authorities were satisfied and assured early decision. k) The L&B Deptt. vide its letter dated , stated that my case could not be finalized, but it has not given any reasons. I was advised to appear before the signing officer (Sh. H L Ratha) Asstt. Housing Commissioner (ALT) on I appeared before the said officer, showed him all the documents again, he confirmed that he was satisfied with the information. He also advised me to talk to his PA. I met him, he told me that he will send the decision at my 9

10 address but there was no reply. I visited his office many times they made me to wait for hours and advised to come again, I went, but nothing happened. l) I again gave a notice under section 53(B) of DDA Act, through my advocate, on but again no response. I could not file a civil suit because of my poor financial conditions. LG office took up with L&B Dept. m) Again up to 2010, I wrote many letters, narrating all facts and visited the office of L&B Dept as well as DDA office. I was made to run from pillar to post but with no result. On Notice under section 53(B) of DDA Act given to Vice chairman of DDA for alternate plot. But no response from DDA. 21. Appellant then filed RTI requests with the L & B department. a) On , my application to L&B under RTI with Postal order was sent but the same was returned saying that the postal order was not drawn correctly. I have again submitted RTI request on with fresh postal order. b) In response to my RTI dated L&B Dept vide their letter dated , stated that the information asked does not fall under definition of information (u/s 2(f) of RTI Act 2005, and no such information available. c) On my appeal to 1 st appellate authority, Sh.G. Sudhakar, on stated that a seniority list of applications on basis of the date of application has been uploaded on the website of department for processing the applications in transparent and time bound manner and that 250 applications were dealt with every month as per directions of Hon ble High Court of Delhi in the matter of Rambir Singh Vs Govt. of NCT of Delhi strictly in terms of seniority. I was advised to check the list. d) I filed second appeal on No. CIC/SA/A/2014/ in which Commission directed on to check files manually and furnish the information within 1 month. e) L&B Dept wrote on saying that they are searching for the file. Further hearing on this RTI was later merged with my second RTI, CIC/SA/A/2015 / Second RTI request a) I filed RTI application to inspect the file no.f 39((1)/350/78 L&B/RR, relating to correspondence after acquisition of his plot with file numbers and copies of letters. b) On first appeal was disposed off stating that there was no file bearing number F.39(91)/350/78/L&B/RR and he advised me to approach ADM/LAC(North). I filed second appeal on c) On , CPIO did not attend hearing, Sh.Dinesh Singh, Superintendent said there is no such record with them. 10

11 d) The CIC under section 19(8)(a) of RTI Act, on directed the respondent authority to inquire into injustice done to me, directed Ms. Usha Chaturvedi, CPIO to show cause why maxim penalty should not be imposed upon her for making illegal claim of missing the file as the original letter was generated from their office. e) There was no response from PIO on gave further time upto 27 th Nov Meanwhile, I filed a complaint to Public Grievances Commission which took 11 months to close the case. L&B Dept by letter dated told PGC that record was not available. On the Grievances Commission directed to locate the file and personally present with ATR on On orders from CIC and PGC, Smt. Usha Chaturvedi, Dy. Secy (Alt) vide her letter dated advised me to file another RTI with RR Cell as file was not traceable. As such no action was taken in the matter as directed by the Commission. PGC got satisfied with the documents to prove that I had done all that was required for proving my claim. On days of hearing on and Mrs. Usha was not present. Even after five hearings there was neither response nor ATR from L&B Dept. Analysis of the Commission : 23. The appellant apparently proved that he purchased the land measuring 200 square yards which was duly registered in 1972, he got constructed a room and boundary walls in He claimed that the original document was given to LAC which being a buyer of the property is expected to maintain the records. 24. It is relevant and important to refer to the Constitution and the laws that guaranteed certain rights. 11

12 a) As per Article 300A of Indian Constitution the appellant has right to property under Article 300A, which says No person shall be deprived of his property save by authority of law. Forty Fourth Amendment Act of 1978 omitted Art 19(1) (f) with the net result being: The right not to be deprived of one s property save by authority of law has since been no longer a fundamental right, a constitutional right was introduced under Article 300A. No person shall be deprived of his property saved by authority of law (Constitution 44th Amendment, w.e.f ), and in the event of breach, the remedy available to an aggrieved person is through the High Court under Article 226 of the Indian Constitution and not the Supreme Court under Article 32 of the Constitution. b) The appellant has right to compensation under old Land Acquisition Act. The Land Acquisition Act, 1894, Section 3: (Definitions): In this Act, unless there is something repugnant in the subject or context, (a), the expression land includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth; Section 5, Payment for damage: The officer so authorized shall at the time of such entry pay or tender payment for all necessary damaged to be done as aforesaid. S.11A. Period shall be which an award within made: The Collector shall make an award under section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceeding for the acquisition of the land shall lapse. S.27. Costs. (1) Every such award shall also state the amount of costs incurred in the proceeding under this Part, and by what persons and in what proportions they are to be paid. S.31. Payment of compensation or deposit of same in Court: (1) On making an award under section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next sub section. 31 (3) Notwithstanding anything in this section the Collector may, with the sanction of the [appropriate Government] instead of awarding a money compensation in respect of any land, make any arrangement with a person having a limited interest in such land, either by the grant of other lands in exchange, the remission of land revenue on other lands held under the same title, or in such other way as may be equitable having regard to the interests of the parties concerned. c) The appellant has a right to alternate plot under 1961 scheme of GNCTD. 12

13 d) The appellant has right to information about his right to compensation under S 3 and other provisions of RTI Act, 2005, The appellant has right to compensation under Section 19(8)b of Right to Information Act. e) The appellant has right to compensation under new Act of 2013, called the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (RFCTLARR Act of 2013), which is an Act that regulates land acquisition and has provisions to provide fair compensation to those whose land is taken away, brings transparency to the process of acquisition of land and assures rehabilitation of those affected. One of the aims of the new Act is to pprovide just and fair compensation to the affected families whose land has been acquired or proposed to be acquired or are affected by such acquisition. Section 27 of the Act of 2013 defines the method by which market value of the land shall be computed. Schedule I outlines the proposed minimum compensation based on a multiple of market value. Schedule II through VI outline the resettlement and rehabilitation entitlements to land owners and livelihood losers, which shall be in addition to the minimum compensation per Schedule I. The market value would be multiplied by a factor of, at least one to two times the market value for land acquired in rural areas and at least one times the market value for land acquired in urban areas. The Act stipulates that the minimum compensation to be a multiple of the total of above ascertained market value, value to assets attached to the property, plus a solatium equal to 100 percent of the market value of the property including value of assets. A Comprehensive Compensation Package (First Schedule) 1. Market value of the land: a) the minimum land value, if any, specified in the Indian Stamp Act, 1899 for the registration of sale deeds in the area, where the land is situated; or b) the average of the sale price for similar type of land situated in the immediate areas adjoining the land being acquired, ascertained from fifty per cent of the sale deeds registered during the preceding three years, where higher price has been paid; or whichever is higher: Provided that market value so calculated for Rural Areas shall be multiplied by a multiplier factor of up to two. 2. Value of the assets attached to land: Building/Trees/Wells/Crop etc as valued by relevant govt. authority; Total compensation = Solatium: 100% of total compensation 4. Where land is acquired for urbanisation, 20% of the developed land will be reserved and offered to land owning project affected families, in proportion to their land acquired and at a price equal to cost of acquisition and the cost of development. In case the project 13

14 affected family wishes to avail of this offer, an equivalent amount will be deducted from the land acquisition compensation package payable to it 5. The Company for whom land is being acquired may offer shares limited to 25% of the Compensation amount. In case the project affected family wishes to avail of this offer, an equivalent amount will be deducted from the land acquisition compensation package payable to it. A Comprehensive R&R Package (Second Schedule) 1.Subsistence allowance at Rs per month per family for 12 months; 2.The affected families shall be entitled to: (a) Where jobs are created through the project, mandatory employment for one member per affected family or (b) Rupees 5 lakhs per family; or (c)rupees 2000 per month per family as annuity for 20 years, with appropriate index for inflation; The option of availing (a) or (b) or (c) shall be that of the affected family 3. If a house is lost in rural areas, a constructed house shall be provided as per the Indira Awas Yojana specifications. If a house is lost in urban areas, a constructed house shall be provided, which will be not less than 50 sq mts in plinth area. In either case the equivalent cost of the house may also be provided in lieu of the house as per the preference of the project affected family; 4. One acre of land to each family in the command area, if land is acquired for an irrigation project if possible BUT the same shall be in lieu of Compensation; 5. Rs 50,000 for transportation; 6. A one time Resettlement Allowance of Rs 50,000; In addition to the R&R package, SC/ST families will be entitled to the following additional benefits: 1. Land to be given to each family in every project even in the case of irrigation projects; 2. One time financial assistance of Rs. 50,000 per family; 3. Families settled outside the district shall be entitled to an additional 25%R&R benefits; 4. Payment of one third of the compensation amount at very outset; 5. Preference in relocation and resettlement in area in same compact block; 6. Free land for community and social gatherings; 7. In case of displacement, a Development Plan is to be prepared. 14

15 8. Continuation of reservation and other Schedule V and Schedule VI area benefits from displaced area to resettlement area. 25. Thus for land owners, the Act provides a) an additional subsistence allowance of Rs.38,000 for the first year may be, b) an additional entitlement of a job to the family member, or a payment of Rs. 5,00,000 up front, or a monthly annuity totalling Rs. 24,000/ per year for 20 years with adjustment for inflation the option from these three choices shall be the legal right of the affected land owner family, not the land acquirer, c) an additional upfront compensation of Rs. 50,000 for transportation, d) an additional upfront resettlement allowance of Rs. 50,000 if the land owner loses a home in a rural area, then an additional entitlement of a house with no less than 50 square meters in plinth area, e) if the land is acquired for urbanization, 20% of the developed land will be reserved and offered to land owning families, in proportion to their land acquired and at a price equal to cost of acquisition plus cost of subsequent development, f) if acquired land is resold without development, 20% of the appreciated land value shall be mandatorily shared with the original owner whose land was acquired. Schedule III deals with additional amenities over and beyond those outlined above. Schedule III proposes that the land acquirer shall provide 25 additional services to families affected by the land acquisition. Some examples of the 25 additional services include schools, health centres, roads, safe drinking water, child support services, places of worship, burial and cremation grounds, post offices, fair price shops, and storage facilities. 26. The Constitutional provisions read with and Land Acquisition Act 1894 and latest Act of 2013 imposes an obligation on the state to pay compensation at the market value for such land, building or structure acquired (Inserted by Constitution, Seventeenth Amendment Act, 1964). This right can be found in the earlier judgments of Supreme Court when property right was a fundamental right, such as 1954 AIR 170, 1954 SCR 558, which propounded that the word Compensation deployed in Article 31(2) implied full compensation, that is the market value of the property at the time of the acquisition. The Legislature must ensure that what is determined as 15

16 payable must be compensation, that is, a just equivalent of what the owner has been deprived of, and the Executive has to pay that amount to the owner of the land, which was acquired by state. 27. Compensation for the owners of the acquired land shall be four times the market value in case of rural areas and twice in case of urban areas. 28. The Act of 2013 has several transparency provisions also. For Social Impact Assessment, the Gram Sabha needs to be consulted. The Summary of SIA notified along with Draft Notification, SIA document shall be made available for public scrutiny. The R&R Scheme Summary shall be notified along with Draft declaration and be made available for public scrutiny. It also mandates that the Individual Awards passed and all other documents mandatorily to be made available in the public domain and on the website. Section 4: Preparation of Social Impact Assessment Study. (3) The Social Impact Assessment study report referred to in sub section (1) shall be made available to the public in the manner prescribed under section 6. Section: 6: Publication of Social Impact Assessment study. 1. The appropriate Government shall ensure that the Social Impact Assessment study report and the Social Impact Management Plan referred to in sub section (6) of section 4 are prepared and made available in the local language to the Panchayat, Municipality or Municipal Corporation, as the case may be, and the offices of the District Collector, the Sub Divisional magistrate and the Teshil, and shall be published in the affected areas, in such manner as may be prescribed, and uploaded on the website of the appropriate Government. 2. Wherever Environment Impact Assessment is carried out, a copy of the Social Impact Assessment report shall be made available to the Impact Assessment Agency authorised by the Central Government to carry out environmental impact assessment. Retrospective Operation of Act of 2013: 29. The Act of 2013 applied retrospectively to cases where no land acquisition award had been made. Also in cases where the land was acquired five years ago but no compensation had 16

17 been paid or no possession had taken place, the land acquisition process would have to be started afresh in accordance with the provisions of this act. Section 24. (1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, a) Where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or b) Where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed. (2) Notwithstanding anything contained in sub section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act: Provided that where an award has been made and compensation in respect of a majority of land holding has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act. Clauses (1) and (2) of Section 24 of the RFCLARR Act deal with these three scenarios. When no actual award was issued pursuant to a land acquisition notice under the 1894 law, then all the provisions related to compensation in the 2013 law would apply under Section 24(1)(a). The compensation available under the 2013 law is much higher and has to be determined using a range of criteria including market value of the land and damages incurred by standing crops or trees. Section 101 is clear and simple. It says that when any land acquired under this Act remains unutilised for a period of five years from the date of taking over the possession, the same shall be returned to the original owner or owners or their legal heirs, as the case may be, or to the Land Bank of the appropriate Government by reversion in the manner as may be prescribed by the appropriate Government. This however, applies only to land acquired under the 2013 law. 30. The Commission took a serious note of the respondent s contention that file was not traceable or the file was missing. Appellant did not receive any information till now about the causes of rejection of his application for compensation and the alternate plot. No information was given regarding 541 owners of the property whose land was acquired and houses were demolished. 17

18 31. The Public Authority disputed that Indian Postal Order to pay fee of Rs.10 is not in proper form. They spent Rs.20 to return the IPO of Rs 10. When appellant approached the post office they told him that they could ve credited the money if IPO was deposited with them. They consumed 4 months in giving reply asking illiterate appellant to search on website. CPIO breached the provisions of RTI which mandate her to help citizen in all means to secure the information. 32. The booklet of guidelines furnished to him regarding the application for compensation and the alternate plot stated This booklet is for general information and is not a legal document and cannot be quoted/produced in any judicial/quasi judicial proceedings and is subject to correction/amendments without any prior notice. 33. The Commission finds it pathetic that the Public Authority could not come up with any information on non payment of compensation and not allotting the alternate plot to 541 owners. The case on hand before the Commission is a sad reflection of most unresponsive conduct of machinery of Public Authority in which the CPIO and the officer in charge of allotments was a key part. After elaborate argument presented by the learned council the Commission s question about the missing file regarding the appellant s claim had no answer. Ms. Usha Chaturvedi reiterated that the file is missing and not traceable even now. 34. It s unfortunate that the proceedings before the information Commission is being viewed as adversarial litigation and procedural or technical excuses are raised to deny the appellant s right to compensation/ alternate plot/ information. There is no reason to disbelieve the claim of appellant that he lost all his rights because of the missing file. 35. Besides the fact that the public authority has missed a crucial file, it also missed an important aspect that it should be accountable and responsible in its working. The RTI Act is 18

19 aimed at making the public authority to be accountable for its working. The accountability, responsibility and necessity to be responsive to information needs to develop good governance systems or at least get rid of bad systems that reflected in this second appeal are certainly the issues to be considered. The Commission is not deciding rights of appeal under Land Acquisition Act, but the lack of information causing deprivation of his rights under both under old and new Land Acquisition Acts cannot be ignored because it was caused by loss of files by L & B department and it has statutory duty to secure the appellant the compensation for loss or detriment caused by denial of information. 36. The very first sentence of the preamble deals with this aspect. RTI Act is an Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. The RTI application and this second appeal exposed the pathetic working of this public authority, which is highlighted by their claim of missing file. Not only that they have lost the file, but did nothing to trace it back, find out who is responsible, act against them, build alternative file or collect from shadow files, or find out a mechanism to help victims like appellant of missing file. In the beginning the PIO was simply arguing that she was not concerned, her authority has limited scope or that others are involved etc, but later appeared to have understood the purpose of RTI and pathetic condition of her department. Orally she sought more time to address the issue, which the Commission conceded and waited for couple of months. There was no help to address the issue of 541 poor land owners who lost their small plots in acquisition without any consideration. 37. The losses caused by illegal defence of missing file, appellant have to be compensated. It could be another shade of cruelty when public authority tried to establish that appellant might get just Rs 446 even if he wins the litigation in court of law. The public authority is not ready to provide any relief to appellant. It is unfortunate that even before the information Commission; the state 19

20 chose to fight its citizen instead of performing its constitutional and legal duties. Delhi High Court in Union of India v Vishwas Bhamburkar (WPC 3660/2012/ & CM 7664/2012), ( in its judgment dated 13 th Sept 2013 in Paragraphs 7 and 8 deliberated upon the complex problem of missing file in public authorities: It is not uncommon in the government departments to evade disclosure of the information taking the standard plea that the information sought by the applicant is not available. Ordinarily, the information which at some point of time or the other was available in the records of the government, should continue to be available with the concerned department unless it has been destroyed in accordance with the rules framed by that department for destruction of old record. Therefore, whenever information is sought and it is not readily available, a thorough attempt needs to be made to search and locate the information wherever it may be available. It is only in a case where despite a thorough search and inquiry made by the responsible officer, it is concluded that the information sought by the applicant cannot be traced or was never available with the government or has been destroyed in accordance with the rules of the concerned department that the CPIO/PIO would be justified in expressing his inability to provide the desired information. Even in the case where it is found that the desired information though available in the record of the government at some point of time, cannot be traced despite best efforts made in this regard, the department concerned must necessarily fix the responsibility for the loss of the record and take appropriate departmental action against the officers/ officials responsible for loss of the record. Unless such a course of action is adopted, it would not be possible for any department/ office, to deny the information which otherwise is not exempted from disclosure, wherever the said department/ office finds it inconvenient to bring such information into public domain, and that in turn, would necessarily defeat the very objective behind enactment of the Right to Information Act. (Paragraph 7) Since the Commission has the power to direct disclosure of information provided, it is not exempted from such disclosure, it would also have the jurisdiction to direct an inquiry into the matter wherever it is claimed by the PIO/CPIO that the information sought by the applicant is not traceable/ readily traceable/ currently traceable. Even in a case where the PIO/CPIO takes a plea that the information sought by the applicant was never available with the government but, the Commission on the basis of the material available to it forms a prima facie opinion that the said information was in fact available with the government, it would be justified in directing an inquiry by a responsible officer of the department/ office concerned, to again look into the matter rather deeply and verify whether such an information was actually available in the records of the government at some point of time or not. After all, it is quite possible that the required information may be located if a thorough search is made in which event, it could be possible to supply it to the 20

21 applicant. Fear of disciplinary action, against the person responsible for loss of the information, will also work as a deterrence against the willful suppression of the information, by vested interests. It would also be open to the Commission, to make an inquiry itself instead of directing an inquiry by the department/ office concerned. Whether in a particular case, an inquiry ought to be made by the Commission or by the officer of the department/ office concerned is a matter to be decided by the Commission in the facts and circumstances of each such case. (Paragraph 8) 38. The Public Authority and its PIO are either guilty of missing file or not making proper search for them or failed to understand miseries of land owners like appellant caused by missing file. As suggested by Delhi High Court above, the Public Authority is directed to conduct an inquiry, fix responsibility of officers including the present PIO and recommend necessary disciplinary action against those found guilty. 39. It is inevitable to conclude that missing file excuse is thus the sole cause of all kinds of worries and breach of rights of the appellant right to property under Article 300A of Constitution, right to compensation under Land Acquisition Act 1894, right to alternate plot under the Scheme of Delhi Government and right to information under RTI Act, about it. His loss of these rights is directly linked to unreasonable and illegal denial of his right to information. Responses of the PIO, their senior counsel, reply affidavit and supplementary affidavit by PIO, earlier orders of this Commission, besides the repeated applications/petitions of appellant have proved that this loss is the result of most inefficient, unsystematic, non responsive and irresponsible keeping (rather nonkeeping) of records in the respondent office of L & B. 40. The issue before the Commission is quantum of compensation to be awarded to the appellant for denial of information, and also whether it should include the compensation for land which was not given till now. Even according to the contention of the Counsel for Respondents that Commission can award compensation for the losses caused by denial of information, that too after determining the quantum the appellant is entitled to compensation. 21

22 41. If Prem Chand was the owner of the land, which was acquired and the award is not passed, compensation is not paid under previous Land Acquisition Act 1894, he is entitled to cancellation of acquisition or compensation as per Act of Public authority has neither proved award nor payment of compensation, whereas Prem Chand proved that compensation was not paid to him for the plot acquired. 42. Documents which he need to claim compensation, which were denied by the respondent authority under Right to Information Act. This case is an example of pathetic condition of governance, lack of transparency and absence of accountability, for improving which the Right to Information Act is passed and citizens including Prem Chand were given right to information. His loss arising out of violation of RTI is almost same that of his entitlement to compensation under any Land Acquisition Act. 43. The Appellant explained that he incurred following costs in travelling and compilation of documents in the form of a table : S.No Date Particulars: RTI Case No. CIC/SA/A/A2014/ Costs. Rs Before 1st Appellate Authority at Vikas Bhawan Rs In Appeal Hearing at Bhikaji Cama Place, Rs In Appeal Hearing at Bhikaji Cama Place, Rs 600 Sum Total Rs: 1850 Second RTI Case Number CIC/SA/A/2015/ Before 1st Appellate Authority at Vikas Bhawan In appeal hearing at CIC Bhikaji