20.01.06

THE CENTRAL INFORMATION COMMISSION COMPLAINT U/S 18(1)(F) OF THE RIGHT TO INFORMATION ACT, 2005 IN THE MATTER OF: NON-IMPLEMENTATION OF RTI ACT IN DELHI METRO RAIL CORPORATION LTD BY: GITA DEWAN VERMA, 1356, DI VASANT KUNJ, N DELHI - 110070; PH: 26132921, 26895840 AGAINST: MANAGING DIRECTOR, DMRC LTD, NBCC PLACE, PRAGATI VIHAR, BHISHMA PITAMAH MARG, N DELHI - 110003

Complaint

1. Delhi Metro Rail Corporation (DMRC) was created in 1995 with equal equity of Central and Delhi Governments. Later, Parliament enacted the Delhi Metro Railways (Operation & Maintenance) Act, 2002, and Delhi Metro Railways General Rules, 2002 were notified. Under Right to Information Act, 2005, particulars of Public Information Officers were published on DMRC website (in "Corporates" section, one of two sections on it, the other being "Commuters") on page titled "Public Information" (Annexure-1). As will be noticed in the following paragraphs, DMRC is otherwise not implementing RTI Act. It has:
   1. not published mandatory s.4(1)(b) information, nor made arrangements to receive fee
   2. not answered requests made in ambit of s.4(1)(c), s.4(1)(d), s.4(3) and s.4(4)
   3. not aligned with s.4(2) its ad-hoc PR approach of "marketing" rather than informing, with deleterious implications for interests of public and investors as well as for the credibility of premier organisations (including DMRC), professions and institutions.
2. DMRC has not published mandatory s.4(1)(b) information on its website and not made arrangements for receiving applications/fees under s.6(1), as evidenced by the following:
   1. The organisational structure of DMRC has not been disclosed, in violation of sub-clauses (i), (ii), (iii), (ix) and (x) of s.4(1)(b). Under "Structure", the About-Us page in "Corporates" section of DMRC website names only Chairman Shri Anil Baijal and Managing Director Shri E Sreedharan and provides number of Directors (13), etc, and says that present number of full-time functional directors including MD is 4. It does not name the other directors and it names no employees. The contents of this About-Us page are at Annexure-2.
   2. Functions and duties of DMRC have not been disclosed, in violation of sub-clauses (i), (iv), (v), (viii) and (xi) of s.4(1)(b). The About-Us section projects DMRC in vein of a private company, describing its Corporate Culture and Mission and introducing it as company registered in 1995, "not falling within the category of a Public Sector Undertaking" and "vested with greater autonomy and powers", without any reference to Metro Act or Rules of 2002, etc.
   3. Financial details of DMRC have not been disclosed, in violation of sub-clauses (x), (xi), (xii) and (xiii) of s.4(1)(b). Its website archives its two-monthly promotional newsletter since 1999, but does not have its Annual Reports. It provides no details of Financing Plan and "Project Cost" link on "Corporates" section home-page is to a page that says only: "capital cost of phase I is Rs. 6,000 crores at Apr 96 price level. However taking into account the element of escalation during construction period of 71/2 years, the completion cost has been estimated as Rs.10,571 crores". It is pertinent that financial details of MRTS are liable to be disclosed also because it uses abuse-prone property development. The broad financing plan, as indicated on DMRC page (in "Major Projects" section) on Delhi Govt website, is at Annexure-3.
   4. Arrangements for public consultation have not been disclosed, in violation of s.4(1)(b)(vii). That these might be in derogation of statutory procedures is illustrated by DMRC Public Notice to invite suggestions on its phase-II Environmental Impact Assessment (EIA). It is pertinent that Environment Protection Act, 1986, requires EIA hearings in Delhi to be arranged by Delhi Pollution Control Committee and DPCC to forward applications to MoEF for clearance. But DMRC published on its own EIA Public Notice on 06-January-2006 (tucked away in "Advertisements" sub-section of "Corporates" section on website), which, with contents of the report (tucked away in "Eco-friendly" sub-section), is at Annexure-4. Neither specifies DMRC procedure for EIA and, in violation of s.4(1)(c) of RTI Act, relevant facts about important decision to modify statutory EIA procedures have not been disclosed.
   5. Information needed for resort to RTI has not been disclosed, in violation of sub-clauses (vi), (xiv) and (xv) of s.4(1)(b). DMRC also appears not to be receiving RTI applications / fees, as illustrated by an account of an unsuccessful attempt to file an Application in its offices on 06-January-2006, posted (in context of another RTI experience of which the Commission is seized) on public mailing list of the Complainant on 18-January-2006 (Annexure-5).
3. DMRC has not acknowledged / answered 7 requests for information made by the Complainant in ambit of section-4, enclosed as Annexure-6 and summarised below:
   1. On 18-October-2005 (based on same day news reports / study-visit of College of Defence Management) for publication of relevant facts pertaining to decision to host this primarily at Shastri Park, site of DMRC constructions subject of court matters / orders and instruction from President (Supreme Commander of the Armed Forces).
   2. On 25-October-2005 (based on news reports about visit by Kerala CM and DMRC consultancy for Kerala metro projects) for publication of statutory basis for DMRC consultancy in other cities and techno-legal details of its own financing plan and public consultation procedures in view of proposals made by it for Kochi metro.
   3. On 08-November-2005 (based on news report about appointment of DMRC MD as consultant for Mumbai metro, news report quoting precise rate of return in Delhi metro, etc) for consultancy basis, financial plan and public hearing procedures
   4. On 02-January-2006 (with reference to DMRC website up-dating, including of page on Shastri Park), for information about building permits / further works awards and (on basis of news reports of PM remarks at opening of Line-3) about non-publication, despite up-date, of financing plan and basis of consultancy by DMRC
   5. On 07-January-2006, for website publication of phase-2 EIA report (as per Public Notice of previous day) with link on home-page and with information of relevant statutory provisions enabling the Public Notice and subsequent procedures
   6. On 12-January-2006 (with reference to reports about DMRC property tax arrears and exemption claim and about further honours for DMRC MD) to ask if DMRC has / claims exemption also from RTI Act (as from development, environment and tax law)
   7. On 17-January-2006, on basis of news reports about metro-visit by Hon'ble Chief Justice of India and his companion judges, including to Shastri Park, on 15-January-2006, for information about who decided on behalf of DMRC the itinerary and, if the visit was at instance of DMRC, also who decided that and the manner of invitation, with reasons for these decisions and whether the guests were appraised of, and if they were not then the reasons for decision to no appraise them of, Delhi High Court matters pertaining to metro property at Shastri Park, viz, status of follow-up / compliance in WP(C) 19808/2004 (Delhi Metro Rail Corporation Ltd v/s DDA & Ors) and that DMRC has been restrained from finalising tender for further development at the site in WP(C) 6500/2005 (Gita Dewan Verma v/s Delhi Metro Rail Corporation & Ors) and pleadings therein have revealed gross illegalities in prior development at the site, including construction without mandatory environmental clearance or building permit, ie, violations inviting severe penalties.
4. In the aforementioned RTI requests, the Complainant has:
   1. sought, to no avail, acknowledgement, procedures / fees for s.4, and prompt intimation in case of rejection of requests (cf 18-October, 25-October, 02-January, 07-January, last also to Appellate Authority) and even to know if DMRC has any exemption from RTI Act (cf 07-January, 12-January, both also to Appellate Authority)
   2. pointed out non-compliance of s.4(1)(b) (cf 25-October, 02-January) and sought, to no avail, specific s.4(1)(b) information in ambit of s.4(4) (cf 02-January, about property development, consultancy and PR departments and Board of DMRC)
   3. clarified that requests under s.4(1)(c) and s.4(1)(d) arose from information continuing to be provided by DMRC through ad-hoc media publicity in a manner inconsistent with s.4(2) (cf, 18-October, 25-October, 08-November, 12-January)
   4. articulated the apprehension, with reference to her pending writ petition, that DMRC PR amounts to mis-information / misleading public, professionals, investors, authorities and institutions to participate in / endorse / replicate DMRC activities inclusive of violations attracting severe penalties (cf requests of 18-October, 02-January, 12-January, 17-January)
5. DMRC is spending huge amount of public money, but even basic facts of its functioning, accounts, etc, are not known to public. In counter-affidavits filed in the Complainant's writ petition gross illegalities in some DMRC activities have been revealed in latter half of 2005, ie, shortly after enactment of RTI Act. Since then, DMRC (especially its MD) has made plenty of time to "market" itself to secure consultancies and awards, but no time at all to implement RTI Act or respond to requests for that. It has displayed, alongside propensity to personalise the organisation with a combination of corporate opacity and self-promotional PR, utter indifference to transparency and accountability guarantees of RTI Act. DMRC, which purportedly exemplifies a role-model organisational culture, has thus exemplified a culture of dis-information and mis-information that contravenes not just each and every provision but also the very spirit of RTI Act.

In the foregoing context and perspective, the Complainant prays that the Commission receive and inquire into this matter as a grievous one under s.18(1)(f) and grant her opportunity to submit additional facts and documents if needed.

sd/- Gita Dewan Verma New Delhi, Dated: 20.01.2006

17.04.06

IN THE CENTRAL INFORMATION COMMISSION

In re:
Complaint dated 20 January 2005
Re: Non-implementation of RTI Act in Delhi Metro Rail Corporation
By: Gita Dewan Verma ...
Against: Managing Director, DMRC Ltd ...

Supplementary Affidavit of the Complainant (With Prayer)

1. The Complainant had filed the above Complaint with reference, inter alia, to gaps in DMRC website in terms of section 4 of the ACT (para-2) and to seven requests for information under section 4 made during 18.10.05 and 17.01.06 (para-3, Annexure-6). In these requests the Complainant had pointed out non-compliance of section 4(1)(b), sought publication under sections 4(1)(b) or 4(1)(c) of 4(2) and/or information under section 4(1)(d) or 4(4), and said that continuing ad-hoc PR by DMRC amounted to "mis-information / misleading public, professionals, investors, authorities and institutions to participate in / endorse / replicate DMRC activities inclusive of violations attracting severe penalties" (para-4). Contending that "DMRC is spending huge amount of public money, but even basic facts of its functioning, accounts, etc, are not known to public" and it is exemplifying "a culture of dis-information and mis-information" by displaying "alongside propensity to personalise the organisation with a combination of corporate opacity and self-promotional PR, utter indifference to transparency and accountability guarantees of RTI Act" (para-5), the Complainant had prayed to the Commission to "receive and inquire into this matter as a grievous one under s.18(1)(f) and grant her opportunity to submit additional facts and documents".
2. The Complainant is filing this Supplementary Affidavit to bring on record the following and to pray for specific directions in their light:
   1. Purported reply dated 30.03.06 to her requests under section 4 that is variously evasive, misleading, incomplete and inaccurate. Copy of this is at Annexure-7
   2. Patently incomplete and misleading information in a new section titled Right to Information Act (accessible from a new link at the bottom of Public Information page previously filed as Annexure-1) added on DMRC website in purported compliance of section-4(1)(b). Description of this is at Annexure-8.

PRAYER

It is respectfully prayed that this Hon'ble Commission may be pleased to:

1. Direct DMRC to rectify, inter alia, the following omissions under section 4(1)(b):
   1. non-publication of information under s.4(1)(d)(xiii) ("particulars of recepients of concessions, permits and authorisations granted by it") even as the same is central to its large scale development activities;
   2. non-publication of information under s.4(1)(b)(xii) ("the manner of execution of subsidy programmes...") even as the same is central to subsidized tariffs;
   3. non-publication of information of Delhi Metro Railways Act, 2002, in information under s.4(1)(b)(i), under which are published only scanned copies of unspecified document setting out some other "Main object (functions and duties)" and of two dim organograms (Annexure-8-a);
   4. non-publication of department-wise duties of officers and employees under s.4(1)(b)(ii) ("powers and duties ..."), for which only powers in terms of financial limits for awarding works, etc, are published (Annexure-8-b);
   5. non-publication of department-wise details under s.4(1)(b)(xi) ("budget allocated to each of its agency..."), for which only work-item-wise summary budget for 2005-06 and broad financial plan for phase-1 are published (Annexure-8-c);
   6. non-publication of specific information under s.4(1)(b)(iii), (v) and (v), for which are published only vague remarks like "All major decisions are taken by the board of Directors. Day to day affairs are managed by the managing director who is assisted by four functional directors" and "DMRC discharges its functions in accordance with rules..., etc decided by it from time-to time" (even as Metro Act requires rules made by Central govt, etc);
   7. non-publication of specific information under s.4(1)(b)(vi) ("a statement of the categories of documents ..."), for which is published only that "The documents held by DMRC include files on subjects dealt with by DMRC and service documents of its officials";
   8. non-publication of specific information under s.4(1)(b)(viii) ("a statement of the boards, councils, committees..."), for which are published only vague remarks short even of particulars of all Board members.
2. Direct DMRC to ensure, in the above, publication of information requested by the Complainant apropos, inter alia, financial plan (e-mails dated 25.10.05, 08.11.05, 02.01.06, 12.01.06) and consultancy activities (25.10.05, 08.11.05, 02.01.06);
3. Direct DMRC to publish under section 4(2) information requested by the Complainant apropos statutory provisions under which DMRC issued EIA Public Notice on 06.01.06 (e-mail dated 07.01.06), public consultation procedures (25.10.05, 08.11.05, 07.01.06), mandatory permissions for further constructions (02.01.06, 07.01.06), etc;
4. Direct DMRC to furnish to the Complainant relevant facts / reasons for administrative decisions relating to hosting visits to Shastri Park for College of Defence Management and for Hon'ble Chief Justice of India and companion judges and to acceptance / publicity of academic / professional honours for DMRC MD for DMRC work, requested under section 4(1)(d) vide e-mails dated 18.10.05, 12.01.06 and 17.01.06);
5. Impose penalties on DMRC Managing Director / functional directors, who manage day to day affairs, for lackadaisical compliance of section-4 and for persistent refusal of requests to publish / provide information under section-4; and
6. Issue any other directions as the Hon'ble Commission deems appropriate.

GROUNDS

In making the afore-said prayers the Complainant relies on provisions of section-4 being mandatory and their non-compliance tantamount to obstruction of meaningful resort to section-6 and, apropos the purported reply dated 30.03.06 (Annexure-7) to her requests, also on the following among other Grounds:

1. Because in item-1 PIO has provided evasive and misleading reply to request dated 18.10.05 for publication under section 4(1)(c) of relevant facts of "decision, announced by the press on 18.10.05, to host (College of Defence Management's) visit to, primarily, Shastri Park". With reference to the site being sub-judice and to representation about it to Hon'ble President, Supreme Commander of the Armed Forces, it was specifically stated that "I believe an impropriety has occurred and I do not believe that the College of Defence Management would have participated in it knowingly". PIO has merely asserted that no decision affecting the public was involved. He has not clarified why, then, press was informed or the request not treated u/s.4(1)(d). He has also conveyed that the plan / itinerary was decided by CDM, without substantiating that suggestion;
2. Because in joint item-2&3 PIO has evaded reply to requests dated 25.10.05 and 8.11.05 to publish under section 4(1)(b) r/w s.4(2) information of (a) statutory basis and award details of DMRC consultancies for Kochi, Thiruvananthapuram and Mumbai, (b) details / basis of its financial plan recommendations for Kochi, and (c) public hearing processes being followed by DMRC. PIO has merely said that Kochi hearing was arranged by state govt and DMRC participated only to clarify technical points.
3. Because in item-4 PIO has evaded request dt 02.01.06 to confirm rejection of prior requests and, thereby, clarification of why that information is not liable to be published;
4. Because in item-4 PIO has evaded, and thereby refused without reason, request dt 02.01.06 for "whatever information is available in electronic format with you (in terms of s.4(4) of RTI Act). In regard to s.4(1)(b) ... about only the property development / disposal, consultancy and PR departments and Board of DMRC".
5. Because in item-4b PIO has obfuscated refusal of requests to publish information of Financial Plan with false assertion that the same "has been uploaded on the website". On the website a "Financial Plan for Phase-I" (same as indicated in item-6 of the reply) is reached by click-path: Home > Corporate > Public Information > Right to Information Act > 11.Budget allocated to various activities in the financial year 2005-06 > Financial Plan for Phase-I. This is just a 3-d pie-chart indicating percentages from 4 sources. Not only does this not qualify to be called Financial Plan for a massive project, the figures also do not tally with those published on Delhi Govt website (previously filed as Annexure-3) and funding heads do not tally with annual budget heads (Annexure-8-c).
6. Because in item-4c PIO has obfuscated refusal of requests to publish information of consultancy activities with the misleading assertion that "DMRC by its memoranda and articles of association is permitted to undertake consultancy works in other states / cities". The requests starting 25.10.05 had specifically sought statutory basis / regime "in terms of Delhi Metro Railway (Operation and Maintenance) Act, 2002" (not prior MoA) and of organisational structure for consultancy. It is pertinent that the annual budget 2005-06 now published on DMRC website (Annexure-8-c) has a "Consultancy Business Area" head showing receipts of 6 crores and expenditure of 5 crores.
7. Because in item-4 a&d PIO has refused information of permits for constructions proceeding on riverbed in a sub-judice matter on plea of the matter being sub-judice, which is not a reason for refusal under section-8 and was, in fact, the grounds on which the Complainant had sought the information, being the petitioner. Her writ petition is in the matter of disposal by due process of her objections in response to three statutory Public Notices for proposals to modify Delhi Master Plan to allow metro property development by unspecified techno-financial plan. Constructions without building permit affect the Complainant as they contribute to making her petition infructuous. However, unauthorised construction is not circumscribed by the Complainant's writ petition and invites action by law as well as by current court orders in well-known PIL and, as such, is information liable to be disclosed also to partners and investors in DMRC property development. The PIO reply suggests that the constructions are proceeding without mandatory permissions, which would make the denial of information malafide.
8. Because in item-5c in reply to request dt 07.01.06 PIO has falsely claimed that information of statutory provisions under which it issued Public Notice dt 06.01.06 to invite suggestions on Ph.2 EIA has been loaded on the website. The website has only the report commissioned by DMRC. Statutory EIA procedures require Public Notice to by competent authority for hearings before submission to MoEF for clearance.
9. Because in item-6 apropos request dated 12.01.06 - which was only to ask, in context of dis-connect between PR and official website, if DMRC had exemption from RTI Act - PIO has not clarified why relevant facts of decisions announced in the press are not available on the website. Two types of common press reports were cited in the request, viz, finance (including exemptions from taxes, etc) and awards and honours for DMRC MD. About the former PIO has made some vague assertions and said nothing about the latter. It is pertinent that the Complainant had specifically said, in request dt 08.11.05, "the exceptional PR activities of DMRC raise greater expectations from it in respect of RTI" and PIO is also Chief Public Relations Officer of the DMRC.
10. Because PIO has not replied to request dated 17.01.06 for relevant facts / reasons for decisions relating to the metro visit, including to Shastri Park, hosted by the DMRC on 15.01.06 for Hon'ble Chief Justice of India and his companion judges.

sd/-
COMPLAINANT