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2023 (2) TMI 472 - CENTRAL INFORMATION COMMISSIONIndian Laws

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RTI reply adequacy and penalty threshold: dissatisfaction alone does not justify penal action without mala fide conduct.
The information supplied, including the clarification given at hearing, was found adequate under the RTI framework, so no further disclosure direction was warranted. The separate grievance about cable laying and alleged disturbance of easement rights was treated as a collateral civil dispute outside RTI adjudication. Penal action against the CPIO was declined because no mala fide conduct, unreasonable refusal, knowingly incorrect information, or denial without reasonable cause was established. The matter was therefore closed without relief, and dissatisfaction with the reply alone was held insufficient to attract RTI penalty.

Right to information under RTI Act - Section 2(f) definition of information - Section 8(1)(d) exemption - Section 18 inquiry - Section 20 penalty - malafide/non malafide standard for imposition of penalty - inspection of records - jurisdictional limits of the Central Information CommissionRight to information under RTI Act - inspection of records - Section 8(1)(d) exemption - Whether the information furnished by the CPIO in response to the RTI applications was adequate and whether further action was warranted under the RTI Act. - HELD THAT: - The Commission examined the point wise replies furnished by the CPIO and the additional clarifications given at hearing and found that the information made available (including the identification of the jurisdictional CGST/SGST office, the accounting/service codes for services for which the company is registered, and the GST registration number) adequately responded to the queries within the scope of records held by the public authority. The CPIO offered the complainant an opportunity to inspect relevant records at the office. The Respondent also invoked Section 8(1)(d) in denying certain information; in the factual matrix the Commission did not find that the CPIO withheld information malafidely or unreasonably. Consequently, no infirmity was found in the CPIO's replies and no further remedial action was required under the RTI Act with respect to the information requests.The CPIO's replies are adequate in terms of the RTI Act and no further action is warranted concerning the information requests.Section 2(f) definition of information - Section 18 inquiry - malafide/non malafide standard for imposition of penalty - Section 20 penalty - Whether an inquiry under Section 18 and initiation of penalty proceedings under Section 20 against the CPIO were justified. - HELD THAT: - The complainant alleged that the CPIO failed to obtain or produce information from a private entity and sought an inquiry and penal action. The Commission applied the established legal standard that penalty under Section 20 is appropriate only where the PIO has acted malafidely, unreasonably, or without reasonable cause in refusing or delaying information. Having considered the record and oral submissions, and in light of precedents cited, the Commission found no cogent material establishing malafide or unreasonable withholding by the CPIO. The Commission therefore declined to initiate an inquiry under Section 18 or to impose penalty under Section 20.No inquiry under Section 18 and no penalty under Section 20; allegations of malafide withholding not established.Section 2(f) definition of information - jurisdictional limits of the Central Information Commission - Whether grievances concerning disturbance of easement rights arising from cable laying operations fall within the jurisdiction of the Commission under the RTI Act. - HELD THAT: - The Commission observed that disputes concerning easement rights or other private civil grievances are outside the mandate of the RTI Act and beyond the Commission's jurisdiction. While the RTI framework governs access to information held by public authorities, it does not empower the Commission to adjudicate private disputes between parties. The complainant's grievance about cable laying and disruption to easement rights therefore could not be remedied by the Commission in these proceedings.Grievances relating to disturbance of easement rights are outside the RTI Act and the Commission's jurisdiction; no relief can be granted on that ground.Final Conclusion: The Commission finds the CPIO's responses adequate, declines to initiate an inquiry or impose penalty in the absence of malafide or unreasonable conduct, and notes that the complainant's easement grievance is outside the Commission's remit; the complaints are accordingly disposed of.

2022 (12) TMI 363 - NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIIndian Laws

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Issues:
1. Breach of contract and deficiency of service
2. Barred by limitation under section 24-A of the Consumer Protection Act, 1986
3. Whether the Complainant qualifies as a Consumer under the Consumer Protection Act, 1986

Issue 1: Breach of contract and deficiency of service

The Complainant alleged that the Opposite Parties failed to deliver a residential duplex flat as promised in a Settlement Agreement. Despite repeated assurances, the possession was not handed over. The Complainant invested in a Joint Venture Project but faced issues with the terms and amount changed unilaterally by Opposite Party No.2. The Complainant sought a refund with interest, leading to a Settlement Agreement in 2006 for a duplex flat. However, delays and lack of progress in the project led the Complainant to demand a refund of the full value of the flats with interest and punitive damages. The Opposite Parties defended by claiming no deficiency in service and attributing delays to external factors beyond their control.

Issue 2: Barred by limitation under section 24-A of the Consumer Protection Act, 1986

The Opposite Parties argued that the Complaint was time-barred under section 24-A of the Consumer Protection Act, 1986, as it was filed after 2 years from the alleged cause of action. They contended that there was no consumer-service provider relationship, as the Complainant initially invested for profit and later agreed to take flats for profit as well. The Opposite Parties highlighted the arbitration clause in the registration form and emphasized the need for detailed evidence in the proceedings.

Issue 3: Whether the Complainant qualifies as a Consumer under the Consumer Protection Act, 1986

The Opposite Parties raised a preliminary objection, stating that the Complainant, being a businessman with a history of investments, was acting as a money lender seeking interest on the investment. They argued that the transaction was commercial in nature, with the Complainant seeking a refund as an extension of the initial investment. The Opposite Parties contended that the Complainant, as an investor, did not fall under the definition of a "Consumer" as per the Consumer Protection Act, 1986. The Commission dismissed the Consumer Complaint, deeming it not maintainable and granting the Complainant the liberty to approach the appropriate forum.

This detailed analysis of the legal judgment highlights the issues of breach of contract and deficiency of service, the limitation under the Consumer Protection Act, 1986, and the qualification of the Complainant as a Consumer. The judgment delves into the specifics of the case, the arguments presented by both parties, and the Commission's decision based on the legal framework and evidence provided.

Commission rules against Complainant in Consumer Complaint, citing lack of consumer status and barred by limitation.
The Commission dismissed the Consumer Complaint, ruling that the Complainant, despite alleging breach of contract and deficiency of service, was not considered a "Consumer" under the Consumer Protection Act, 1986. The Complaint was barred by limitation and deemed not maintainable due to the commercial nature of the transaction and the Complainant's investor status. The Opposite Parties' defense of no deficiency in service and external delays beyond their control was upheld, granting the Complainant the liberty to seek recourse through the appropriate forum.

Maintainability of consumer complaint - consumer under the Consumer Protection Act, 1986 - deficiency in service - commercial transaction / investor - settlement agreement as discharge of debt - limitation under the Consumer Protection Act, 1986 - arbitration agreementConsumer under the Consumer Protection Act, 1986 - commercial transaction / investor - settlement agreement as discharge of debt - Whether the Complainant qualifies as a 'consumer' and whether the Complaint is maintainable under the Consumer Protection Act, 1986. - HELD THAT: - The Commission found on the material placed before it that the payments made by the Complainant were originally invested by him as a partner in a joint venture and were commercial in nature. Although a subsequent settlement recorded a promise to deliver a duplex flat "accounting against" the earlier payments, that settlement operated to discharge the debt by converting the consideration into a contractual promise to deliver property; the Complainant's claim for refund with interest is therefore a continuation of the original commercial investment dispute. The Commission held that the transaction and the relief sought (refund with interest arising from the investment) are essentially commercial and intended for profit, and thus fall outside the statutory conception of a consumer entitled to relief under the Consumer Protection Act. The Commission noted the existence of an arbitration clause and the plea of limitation but concluded that the determinative point was the nature of the transaction; being an investor, the Complainant does not fall within the definition of consumer and the Complaint is not maintainable before the Commission. The Commission accordingly dismissed the Complaint while granting liberty to the Complainant to approach the appropriate forum for his commercial claim.Complaint dismissed as not maintainable since the Complainant acted as an investor and not as a consumer; liberty granted to pursue appropriate forum.Final Conclusion: The Commission held that the dispute arises from a commercial investment and the settlement merely converted the debt into a contractual promise; the Complainant is not a consumer under the Consumer Protection Act, 1986, and the Complaint is dismissed as not maintainable with liberty to the Complainant to seek remedy in the appropriate forum.

2022 (11) TMI 35 - THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIIndian Laws

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Hospital and doctors held liable for medical negligence resulting in child's death, awarded Rs. 1 Crore compensation.
The Consumer Commission found Sankara Nethralaya and the doctors liable for gross medical negligence in a case involving the death of a child during surgery. The Commission awarded a total compensation of Rs. 1 Crore to the complainants, with Rs. 85 lakh to be paid by the hospital, Rs. 10 lakh by the anesthetist, and Rs. 5 lakh by the operating surgeon. An additional Rs. 1 lakh was awarded for litigation costs, with a 9% per annum interest for delayed payment.

Medical negligence - duty of care of doctor - vicarious liability of hospital - oculocardiac reflex (OCR) - res ipsa loquitur - pre-operative evaluation and investigations - administration and timing of atropine - use of suxamethonium (scoline) and halothane risks - compensation for death of a childMedical negligence - duty of care of doctor - res ipsa loquitur - Treating doctors breached their duty of care and are liable for medical negligence causing death of the child - HELD THAT: - The Commission examined the medical records, expert evidence and committee reports and concluded that the treating doctors (the operating surgeon and the anesthetist) failed to exercise the required degree of care and skill. The Cardiologist's clearance was also criticised as casual given the physician's initial detection of a murmur and the presence of congenital chest and ocular anomalies. The Court applied established principles that a doctor owes duties in deciding to undertake a case, selecting treatment and administering it; breach of any of these duties may amount to negligence. On the facts, the anesthetic management (choice and conduct with halothane and suxamethonium), uncertainty about timing, route and dose of atropine, failed/ difficult intubation and missed intra-operative signs cumulatively evidenced a breach of duty by the treating doctors. Res ipsa loquitur was relied upon by the complainants but the decision rests on the Court's factual finding of failures in care and not on that doctrine alone. [Paras 22, 23, 24, 26, 27]OP-2 (operating surgeon) and OP-3 (anesthetist) are liable for medical negligence in relation to the death of the childOculocardiac reflex (OCR) - use of suxamethonium (scoline) and halothane risks - Cardiac arrest was caused by an intra-operative Oculocardiac Reflex (OCR) precipitated/compounded by anesthetic drugs and not identified or averted by the team - HELD THAT: - The Commission found that the clinical sequence and operative context were consistent with OCR (a vagal reflex during extraocular muscle manipulation) which commonly produces bradycardia and can progress to arrhythmia, ventricular fibrillation and asystole. The record showed halothane use (which may cause bradycardia) followed by suxamethonium (which can further precipitate bradycardia) during a difficult intubation; the intra-operative diagnosis of OCR was missed and appropriate preventive or corrective measures were not timely or effectively adopted, contributing to the cardiac arrest. [Paras 21, 22, 23]The Commission attributes the intra-operative cardiac arrest to OCR compounded by the effects of halothane and suxamethonium and to failures in recognition and management by the teamVicarious liability of hospital - duty of care of doctor - The hospital is vicariously liable for the negligence of the doctors involved - HELD THAT: - Applying established law that a hospital is vicariously liable for acts of negligence committed by doctors engaged to provide medical care, the Commission held Sankara Nethralaya responsible for the omissions and commissions of the treating doctors. Although the Cardiologist was not a party for monetary liability, the hospital is nevertheless held jointly and severally liable for the negligent acts of OP-2 and OP-3. [Paras 27]OP-1 (Sankara Nethralaya) is vicariously liable for the negligence of the treating doctorsCompensation for death of a child - Just and adequate compensation awarded to the parents for the negligent death of their only child and costs - HELD THAT: - Having found medical negligence and having regard to principles for assessing damages in wrongful death and medical negligence cases, including the objective of restitutio in integrum and precedent that compensation must be just and not a pittance, the Commission fixed total compensation at Rs. 1 crore. The Commission apportioned monetary liability between the parties: the hospital to pay the major share, with specified shares for the anesthetist and operating surgeon, and directed payment of litigation costs; interest was ordered on delayed payment. [Paras 28, 29, 30, 31]Total compensation of Rs. 1,00,00,000 awarded; Sankara Nethralaya to pay major share with specified contributions from OP-3 and OP-2; Rs.1 lakh costs and interest on delayed paymentFinal Conclusion: The complaint is partly allowed: the Commission found that the treating doctors breached their duty of care causing the death of the child; Sankara Nethralaya is vicariously liable. Total compensation of Rs.1 crore (with allocation between OP-1, OP-3 and OP-2) and costs are awarded, with interest for delayed payment.

2022 (11) TMI 87 - THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIIndian Laws

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Issues:
- Alleged mismatched blood transfusion leading to complications
- Liability of hospital and blood bank
- Transfusion reaction or DIC determination
- Quantum of compensation for medical negligence

Analysis:
1. The case involved a married couple undergoing infertility treatment where the wife received laparoscopic surgery at a hospital. Following the surgery, a blood transfusion was ordered, leading to severe complications due to alleged mismatched blood transfusion. The State Commission partially allowed the complaint, directing the hospital to pay compensation to the complainants.

2. The hospital and doctors denied the mismatched blood transfusion, attributing the complications to unforeseen circumstances. However, the State Commission found lapses in following standard procedures post-transfusion reaction, indicating negligence on the part of the hospital and staff.

3. The key questions addressed were the confirmation of wrong blood transfusion and whether the complications were a result of a transfusion reaction or Disseminated Intravascular Coagulation (DIC). The evidence pointed towards a mismatched blood transfusion leading to severe consequences, establishing the hospital's liability for negligence.

4. The judgment emphasized the importance of proper blood transfusion protocols, including immediate response to transfusion reactions and thorough investigation of adverse events. The hospital's failure to adhere to these standards contributed to the adverse outcome in this case.

5. Referring to legal precedents, the judgment held the hospital liable for medical negligence due to the error in blood transfusion. The compensation awarded was revised to Rs. 20 lakh, considering the emotional and financial impact on the deceased's family members.

6. The judgment highlighted the significance of maintaining hemovigilance and investigating transfusion-related adverse events to enhance transfusion safety. It underlined the duty of hospitals to ensure proper blood storage, labeling, and administration to prevent errors that can have life-threatening consequences.

Hospital found negligent in mismatched blood transfusion case, ordered to compensate Rs. 20 lakh to complainants
The State Commission partially allowed the complaint in a medical negligence case involving a mismatched blood transfusion following laparoscopic surgery. The hospital was found liable for negligence due to lapses in post-transfusion procedures, leading to severe complications for the patient. The judgment emphasized the importance of adhering to proper blood transfusion protocols and holding hospitals accountable for errors. A compensation of Rs. 20 lakh was awarded to the complainants, highlighting the significance of maintaining hemovigilance and investigating transfusion-related adverse events for enhanced patient safety.

Wrong blood transfusion / hemolytic transfusion reaction - Medical negligence and deficiency in service - Hospital liability for transfusion errors - Failure to preserve blood bag and investigate transfusion reaction - Haemovigilance and duty to notify blood bank - Compensation for death due to medical negligenceWrong blood transfusion / hemolytic transfusion reaction - Hospital liability for transfusion errors - Wrong blood was transfused to the patient and the hospital staff is liable for negligence. - HELD THAT: - The case sheet entry recorded by hospital staff noting "apparently mismatched Tx Pt - O+ve given A+ve blood" and subsequent clinical notes attributing DIC and ARF to mismatched transfusion establish that wrong blood was transfused. The appellants failed to prove that the error originated at the blood bank or to produce a transfusion register showing receipt, storage or issue of blood bags. The blood bag had been kept in the hospital refrigerator and there was no documentary evidence about when it was brought from the blood bank. In these circumstances the hospital, as the custodian and administrator of the transfusion process, bore the onus to prove proper procedure and failed to do so, rendering it liable for negligence. [Paras 11, 15]Wrong blood was transfused and the hospital is liable for negligence.Wrong blood transfusion / hemolytic transfusion reaction - Disseminated Intravascular Coagulation resulting from transfusion - The clinical condition was a transfusion reaction due to mismatched blood which resulted in DIC and related complications. - HELD THAT: - The patient developed shivering and other signs within half an hour of initiation of transfusion; treating notes and later anaesthesia records at the referral hospital attributed the condition to mismatched transfusion leading to DIC, acute renal failure and pulmonary complications. The medical explanation of hemolytic transfusion reaction-particularly ABO incompatible transfusion-was accepted as causative of the rapid clinical deterioration. The record and expert evidence therefore support that the primary event was a transfusion reaction which precipitated DIC and associated organ failure. [Paras 12, 13]The episode was a transfusion reaction due to mismatched blood, resulting in DIC and related complications.Failure to preserve blood bag and investigate transfusion reaction - Haemovigilance and duty to notify blood bank - Medical negligence and deficiency in service - The hospital failed to follow required post-reaction procedures and thereby committed deficiency in service. - HELD THAT: - Evidence showed that following the onset of reaction the hospital did not preserve the remaining blood in the bag, did not send the patient's blood sample and urine for investigation, and did not promptly communicate with the blood bank. Expert deposition outlined the standard duty to stop transfusion, resuscitate, collect samples and preserve pilot samples at the blood bank. The State Commission's findings, corroborated by cross-examination and absence of contemporaneous records for the critical period, demonstrate lapses in haemovigilance and breach of the duty of care constituting deficiency in service and negligence. [Paras 7, 8, 11]The hospital breached the duty to investigate and preserve evidence after the transfusion reaction and is guilty of deficiency in service.Compensation for death due to medical negligence - The complainants are entitled to enhanced compensation; the hospital and treating doctor are directed to pay specified amounts with interest for delay. - HELD THAT: - The State Commission's quantification was found inadequate in light of the gravity of negligence and resultant death. Having regard to precedents and the absence of reliable proof of deceased's income, the National Commission exercised its discretion to award a lump sum compensation to the parents and awarded litigation costs. The award is to be paid jointly and severally within the stipulated period, failing which interest at the specified rate shall apply. [Paras 16, 17]Compensation enhanced to a lump sum and costs awarded; appellants directed to pay the amounts within the stipulated time with interest for delay.Final Conclusion: The appeal is dismissed. Findings that a mismatched blood transfusion occurred, that it caused a hemolytic transfusion reaction progressing to DIC and organ failure, and that the hospital failed in its duty of haemovigilance and investigation are upheld. The hospital and treating doctor are jointly and severally directed to pay enhanced compensation and costs within the prescribed period, with interest for any delay.

2021 (9) TMI 1487 - NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIIndian Laws

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Issues: (i) Whether the complainant was a consumer within the meaning of the Consumer Protection Act, 1986; (ii) whether the complaint was beyond the pecuniary jurisdiction of the Commission; (iii) whether deficiency in service and negligence were established so as to justify compensation.

Issue (i): Whether the complainant was a consumer within the meaning of the Consumer Protection Act, 1986.

Analysis: The service invoice was generated for the haircut, the card transaction failed, and the salon nevertheless rendered the service. The subsequent complimentary treatment was also linked to the same service transaction and was not shown to be a gratuitous act disentitling the complainant from protection under the Act.

Conclusion: The complainant was held to be a consumer.

Issue (ii): Whether the complaint was beyond the pecuniary jurisdiction of the Commission.

Analysis: For consumer disputes under the 1986 Act, pecuniary jurisdiction is determined by the value of the services together with the compensation claimed. On that basis, the complaint was considered maintainable before the National Commission.

Conclusion: The objection to pecuniary jurisdiction was rejected.

Issue (iii): Whether deficiency in service and negligence were established so as to justify compensation.

Analysis: The material on record, including the contemporaneous messages and the medical certificate, was accepted as showing fault in the haircut and negligence in the hair treatment. The complainant proved mental agony, reputational harm, and consequential hardship, but the quantum claimed was found excessive. Compensation had to be awarded on a reasonable and moderated basis.

Conclusion: Deficiency in service was found proved and compensation was awarded, though in a reduced amount.

Final Conclusion: The complaint succeeded in part, the complainant obtained compensation for the deficiency found, and the claim was not accepted in full.

Ratio Decidendi: A consumer forum may treat a service recipient as a consumer where the service was invoiced or rendered in the course of a commercial service transaction, and compensation for proved deficiency must be assessed on a reasonable and moderated basis on the facts of the case.

Consumer status and moderated compensation in a salon service dispute where invoiced treatment and proved deficiency established liability.
A service recipient was treated as a consumer where the haircut was invoiced and the salon rendered the service despite payment failure, and the linked complimentary treatment did not remove consumer status. Pecuniary jurisdiction was upheld because the complaint value is assessed by the value of services together with compensation claimed. Deficiency in service and negligence were found on the basis of the contemporaneous messages and medical certificate, but compensation was reduced because the amount claimed was excessive and had to be moderated on a reasonable basis.

Deficiency in service - medical negligence - consumer and consideration/privity - misjoinder and director liability - pecuniary jurisdiction - compensation for physical, mental and economic loss - quantification of damagesMisjoinder and director liability - Opposite Party No.1 (Chairman) was improperly joined and impleadment of his successor was rejected. - HELD THAT: - The Chairperson as non executive was not shown to have personal involvement in the alleged deficiency in service; no evidence of his participation, management control or fraudulent conduct was produced. Precedents were considered to the effect that office bearers are not ordinarily service providers unless misfeasance or personal involvement is established. In these circumstances the deceased Chairman's name is struck out and the application to implead his successor is rejected. [Paras 15, 16]Name of Opposite Party No.1 struck out; impleadment of Mr. Sanjiv Puri rejected.Consumer and consideration/privity - Complainant is a 'consumer' under the Act notwithstanding that payment failed at the point of transaction. - HELD THAT: - Invoice and transaction records showed that consideration was sought and an attempted card payment for the haircut was recorded though declined. The Salon nevertheless provided the service and later offered complimentary remedial treatment; given the commercial nature of the Salon and the circumstances, the Complainant falls within the statutory definition of consumer. [Paras 20]Complainant held to be a consumer for the purposes of the complaint.Pecuniary jurisdiction - National Commission has pecuniary jurisdiction to entertain the complaint. - HELD THAT: - Under the Consumer Protection Act, 1986 pecuniary jurisdiction is determined by adding the value of goods/services and the compensation claimed. The Court applied the established test and held that the complaint as filed fell within the jurisdictional limits of the National Commission; a note was made that post 2019 law the test differs but the present matter is governed by the 1986 Act. [Paras 21]Complaint entertained by the National Commission; pecuniary jurisdiction upheld.Deficiency in service - medical negligence - compensation for physical, mental and economic loss - quantification of damages - Deficiency in service and medical negligence by Opposite Party No.2 established in part; compensation of Rs.2 crore awarded to the Complainant. - HELD THAT: - The record, including WhatsApp communication, CCTV images and the medical certificate, supported findings that the haircut was contrary to the Complainant's instructions and that subsequent treatment caused scalp injury and ongoing symptoms. The Commission applied established principles governing compensation in consumer matters, considering physical injury, emotional trauma, loss of professional opportunities and economic consequences. On moderation and in view of the facts and evidence, the Commission concluded that a substantial compensatory award was warranted to recompense the Complainant and to serve as a corrective admonition to the service provider. [Paras 22, 24, 25]Complaint allowed partly; Opposite Party No.2 directed to pay compensation of Rs.2,00,00,000 to the Complainant within eight weeks; parties to bear their own costs.Final Conclusion: The Commission struck out the non executive Chairman as an improperly joined party and refused impleadment of his successor; held the complainant to be a consumer and found the National Commission to have pecuniary jurisdiction; on merits found deficiency in service and medical negligence by the Hotel Salon in part and awarded Rs.2,00,00,000 to the complainant, with the payment ordered within eight weeks and parties left to bear their own costs.

2020 (8) TMI 940 - NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIIndian Laws

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Builder's excess area charges cancelled as unfair trade practice, possession delay compensation awarded
The National Consumer Disputes Redressal Commission, New Delhi, partially allowed the complaint against a builder regarding delayed possession and excess area charges. The Commission held that the builder's demand for excess area payment was unjustified as no proper documentation or comparison between original and final approved plans was provided. The practice of charging excess area without transparency was deemed an unfair trade practice. The Commission cancelled the excess area demand and directed the builder to issue revised demand within 30 days, followed by possession handover within 30 days. Compensation was limited to the agreed Rs.7.50 per sq.ft. per month for possession delay, following SC precedent in DLF Homes Panchkula case.

Consumer - maintainability of complaint where allottee holds multiple bookings - unfair trade practice - excess super area - requirement to compare originally approved plan with finally approved plan - possession offered after occupation certificate not tantamount to paper possession - compensation for delay - entitlement limited to agreed contractual rate; additional lump sum for mental agony may be awarded - rectification of defects and completion of possession within specified timeConsumer - maintainability of complaint where allottee holds multiple bookings - The complainant, despite having booked more than one flat, is a "consumer" within the meaning of the Consumer Protection Act and the complaints are maintainable before the Commission. - HELD THAT: - The Commission held that mere booking or ownership of more than one residential unit does not, without more, demonstrate that the purchaser is engaged in the commercial business of buying and selling properties. Whether a purchase is for a commercial purpose is a question of fact and requires evidence of trading activity; absent such evidence the allottee remains a consumer. Prior decisions of the Commission were followed to the effect that multiple acquisitions may be for personal or investment purposes and do not automatically exclude the protection of the Act. [Paras 14, 15]Complaint is maintainable and the complainant is a consumer.Unfair trade practice - excess super area - requirement to compare originally approved plan with finally approved plan - The opposite party's demand for payment on account of alleged excess super area was not sustainable and is set aside unless justified by a comparison of originally approved areas with finally approved areas. - HELD THAT: - The Commission found no documentary basis had been furnished by the opposite party to substantiate the claimed increase in super area. Once the original plan is approved, super area cannot be construed to have changed unless there is an actual change in the flat area, common buildings, or total project area; the builder must demonstrate the change by providing a comparison between original approvals and final approvals. The practice of raising such demands without transparent comparison was held to be an unfair trade practice. Consequently the demand for excess area was cancelled and the builder directed to issue a revised demand excluding the excess-area charge. [Paras 17, 19]Demand for excess area cancelled; opposite party to send revised demand excluding excess area and to offer possession within the prescribed period.Possession offered after occupation certificate not tantamount to paper possession - compensation for delay - entitlement limited to agreed contractual rate; additional lump sum for mental agony may be awarded - rectification of defects and completion of possession within specified time - Possession offered after issuance of occupation certificate is not 'paper possession'; the allottee's entitlement for delay is confined to the agreed contractual compensation for delay (subject to a limit of three months beyond the offer of possession), but the Commission may award additional lump sum compensation for mental agony and harassment; defects must be rectified and possession completed within stipulated time. - HELD THAT: - The Commission accepted that occupation certificates had been obtained and therefore the offers of possession could not be characterised as mere paper possession. Applying the principle that parties are generally bound by the consequences agreed in the builder buyer agreement, the allottee is entitled to compensation as per the agreed rate; however, recognising the allottee's mental agony and harassment, the Commission may award additional lump sum compensation. In the facts of these cases the Commission limited delay compensation under the agreement to the period up to three months beyond the offer of possession and awarded additional lump sum amounts for mental agony. The builder was directed to rectify defects noted in the joint inspection and to hand over complete possession within 30 days, failing which the specified remedies would follow. [Paras 18, 19]Possession not 'paper possession'; compensation limited to agreed rate for delay (subject to three month limit after offer of possession) plus awarded lump sum for mental agony; defects to be rectified and possession handed over within 30 days.Final Conclusion: Both complaints were partially allowed: the demand for excess area was set aside and the opposite party was directed to issue revised demands and offer complete possession after rectifying defects within 30 days; possession being offered after occupation certificate was not treated as paper possession, delay compensation was restricted to the contractual rate (for up to three months beyond offer of possession) and additional lump sum compensation was awarded to the complainant for mental agony.

2019 (6) TMI 1309 - Central Information CommissionIndian Laws

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CBI must disclose corruption or human rights info regardless of organization under RTI Act
The Commission held that the CBI is obligated to provide information on corruption or human rights violation allegations, regardless of the organization involved, as per the proviso to Section 24(1) of the RTI Act. The Commission advised the Director of CBI to ensure CPIOs are aware of the Act's scope. The appeal was dismissed due to lack of concrete evidence supporting corruption allegations.

Scope of proviso to Section 24(1) of the RTI Act regarding allegations of corruption and human rights violations - exclusion clause for organisations placed in the Second Schedule - obligation of the CPIO/CBI to disclose information pertaining to allegations of corruption - requirement of substantive material to invoke the proviso - sensitisation of CPIOs on the scope and ambit of the RTI ActScope of proviso to Section 24(1) of the RTI Act regarding allegations of corruption and human rights violations - obligation of the CPIO/CBI to disclose information pertaining to allegations of corruption - exclusion clause for organisations placed in the Second Schedule - Whether the proviso to Section 24(1) of the RTI Act limits disclosure to allegations of corruption or human rights violations only when they concern employees of organisations placed in the Second Schedule such as the CBI. - HELD THAT: - The Commission held that the proviso to Section 24(1) must be read as applying to any information which pertains to allegations of corruption or human rights violations, and is not limited to allegations concerning employees of the exempted organisations themselves. The Commission relied on the reasoning in the judgment of the Delhi High Court in CPIO, Intelligence Bureau v. Sanjiv Chaturvedi, which construed the proviso to mean that information pertaining to allegations of corruption and human rights violations is excluded from the broader exclusion clause irrespective of whether the information relates to an exempt organisation or its officers. Applying that ratio, the Commission rejected the coordinate benches' narrower view that CBI is obliged to provide information only about corruption allegations against its own employees and clarified that CBI/its CPIOs must consider disclosure where the information sought pertains to allegations of corruption or human rights violations.Proviso to Section 24(1) is not confined to allegations against an exempt organisation's own employees; information pertaining to allegations of corruption or human rights violations falls outside the exclusion and may attract disclosure by CBI/its CPIO.Requirement of substantive material to invoke the proviso - obligation of the CPIO/CBI to disclose information pertaining to allegations of corruption - Whether the appellant's RTI request in this case attracted the proviso by raising allegations of corruption and therefore required disclosure by the CBI. - HELD THAT: - The Commission examined the record and found absence of substantive material on file to support the appellant's contention that the subject matter involved allegations of corruption. The appellant did not attend the hearing to elaborate or furnish supporting material. The Commission held that a mere assertion of corruption or human rights violation, without supporting material or particulars, is insufficient to invoke the proviso and oblige disclosure under the RTI Act. Consequently the request could not be treated as one attracting the proviso on the basis of the appellant's unsubstantiated claim.The appellant's bare claim of corruption was not supported by substantive material and therefore did not attract the proviso; disclosure was not mandated on the record before the Commission.Final Conclusion: The Commission clarified that the proviso to Section 24(1) of the RTI Act applies to information pertaining to allegations of corruption or human rights violations irrespective of whether those allegations concern personnel of exempt organisations like the CBI, but dismissed the present appeal on merits because the appellant failed to produce substantive material establishing such allegations and did not appear to prosecute the appeal; the Commission also recorded an advisory to sensitize CBI CPIOs on the correct scope of the proviso.

2019 (6) TMI 357 - NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONIndian Laws

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Commission rules for refund and compensation after delay in possession of residential unit
The Commission ruled in favor of the complainant, who sought a refund and compensation due to delay in possession of a residential unit. The opposite party failed to justify the delay citing legal and environmental factors. The Commission held that cancellation charges were inapplicable as the delay was not due to the complainant's actions. The complainant was entitled to a refund of the principal amount along with compensation in the form of simple interest. The opposite party was ordered to refund the principal amount, pay compensation with interest, cover litigation costs, and make the payment within three months.

Delay in delivery of possession - justification for delay arising from orders of the National Green Tribunal - developer's obligation to deliver possession within contractual timeline - compensation for delayed possession by way of interest - inapplicability of forfeiture clause where delay is due to developer's default - jurisdiction of consumer forum notwithstanding RERADelay in delivery of possession - justification for delay arising from orders of the National Green Tribunal - Whether the delay in offering possession was justified by orders of the National Green Tribunal or other external events - HELD THAT: - The Commission held that the opposite party failed to establish that orders of the National Green Tribunal or writ petitions before the Allahabad High Court legitimately delayed construction at the project site. Prior decisions of the Commission were considered which interpret the NGT orders as applying only to projects commenced without requisite environmental clearance or in contravention of such clearance; where clearance existed, the NGT did not stay construction but only withheld completion certificates till NBWL clearance. There was no evidence that construction at this site was stayed by the High Court or that farmer agitation halted work at the site. Consequently the Commission found no justification for the delay attributable to NGT orders or other external causes as pleaded by the opposite party.Delay in offering possession is not justified by the NGT orders or the other external events relied upon by the opposite party.Inapplicability of forfeiture clause where delay is due to developer's default - developer's obligation to deliver possession within contractual timeline - Whether clause 37 (forfeiture on cancellation by allottee) entitles the developer to forfeit 15% where the allottee seeks refund because the developer failed to deliver possession within the contractual period - HELD THAT: - Clause 37 was construed as applying to cancellations initiated by the allottee for his own reasons. The Commission distinguished that clause from situations where the allottee is compelled to seek cancellation because the developer failed to deliver possession within the agreed timeline. Since the complainant sought relief after the expiry of the possession period (including the contractual grace period), the forfeiture clause did not apply to bar refund for the developer's failure to deliver possession.Clause 37 does not entitle the opposite party to forfeit 15% where the allottee seeks cancellation and refund on account of the developer's failure to deliver possession within the contractual period.Compensation for delayed possession by way of interest - consumer forum jurisdiction notwithstanding RERA - Relief to be granted to the complainant and maintainability of the complaint before the Commission - HELD THAT: - Relying on the Commission's earlier view that its jurisdiction to entertain consumer complaints remains despite RERA, and on authorities recognising entitlement to refund where possession is not delivered within the committed period, the Commission accepted the complainant's claim for refund of the principal amount paid together with compensation by way of simple interest. The complainant limited his relief to refund of the principal along with simple interest at 10% per annum from the date of each payment until refund and sought costs. The Commission found it inappropriate to require the complainant to wait further for completion where there was no certainty as to completion and the complainant had lost trust in the developer's ability to deliver possession within a reasonable time.Complaint is maintainable before the Commission; the complainant is entitled to refund of the principal amount with simple interest at 10% per annum and to litigation costs.Final Conclusion: The Commission allowed the complaint and directed refund of the principal amount paid to the opposite party with simple interest at 10% per annum from the date of each payment until refund, awarded litigation costs to the complainant, and directed payment within three months.

2019 (3) TMI 1789 - NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHIIndian Laws

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Issues Involved:
1. Delay in possession and construction of the apartment.
2. Applicability and fairness of clauses in the Apartment Buyers Agreement.
3. Entitlement to refund and compensation for the complainants.
4. Default in payment by the complainants.

Detailed Analysis:

1. Delay in Possession and Construction of the Apartment:
The complainants had applied for the allotment of a residential apartment in 'The Corridors' project and were allotted apartment no. CD-C4-04-402 for a sale consideration of Rs. 1,45,22,006/-. Despite paying Rs. 1,44,72,364/-, the possession of the apartment was not offered, and the construction was not completed. The Apartment Buyers Agreement, executed on 12.5.2014, stipulated that possession should be delivered within 42 months from the date of approval of the building plans, with an additional grace period of 180 days for unforeseen delays. The OP (Opposite Party) admitted the allotment and payment but argued that the complaint was premature, as the fire safety approval was accorded on 27.11.2014, making the proposed delivery date 27.05.2018. The complainants contended that possession should have been delivered by 23.07.2017, considering the building plans were approved on 23.07.2013.

2. Applicability and Fairness of Clauses in the Apartment Buyers Agreement:
The OP relied on clauses 43, 44, and 49 of the agreement, which outlined the conditions for possession, delay compensation, and the consequences of default by the applicant. Clause 44 allowed the applicant to terminate the agreement and seek a refund only after a delay of 12 months beyond the grace period, without any interest. Clause 21.3 stated that upon termination, the OP would refund the amounts paid without interest, after deducting certain charges, only after the resale of the apartment. The Commission had previously held in Subodh Pawar Vs. M/s. Ireo Grace Realtech Pvt. Ltd. that such clauses were wholly unfair and one-sided, allowing for the refund of the principal amount with appropriate compensation despite these clauses.

3. Entitlement to Refund and Compensation for the Complainants:
The Commission reiterated that failure to deliver possession within the stipulated time constituted a deficiency in service, entitling the complainants to a refund with compensation. The complainants, to avoid further litigation, restricted their claim to the refund of the principal amount along with compensation in the form of simple interest at 10% per annum from 10.07.2017, as awarded by the Supreme Court in a similar case. The Commission ordered the OP to refund the entire amount received from the complainants along with the specified interest within four weeks, failing which the interest would be payable from the date of each payment to the OP till the date of full payment.

4. Default in Payment by the Complainants:
During the hearing, it was revealed that the complainants had not paid installment no. 4. The OP argued that this default disqualified the complainants from claiming a refund or compensation. However, the Commission noted that similar contentions had been rejected in previous cases, such as Subodh Pawar, where defaults in multiple installments did not preclude the complainants from seeking refunds and compensation due to the builder's failure to deliver possession.

Conclusion:
The Commission concluded that the complainants were entitled to a refund of the principal amount paid along with compensation in the form of simple interest at 10% per annum from 10.07.2017 till the date of full payment. The OP was directed to make the payment within four weeks, failing which the interest would accrue from the date of each payment made by the complainants to the OP.

Refund and Interest Awarded to Complainants in Consumer Dispute
The complainants were entitled to a refund of the principal amount paid along with compensation in the form of simple interest at 10% per annum from 10.07.2017 until the date of full payment. The Opposite Party (OP) was directed to make the payment within four weeks; otherwise, interest would accrue from the date of each payment made by the complainants to the OP.

Deficiency in service - power to direct refund and compensation under the Consumer Protection Act - unfair and one-sided clause - termination and refund clause - grace period and delay compensationDeficiency in service - power to direct refund and compensation under the Consumer Protection Act - unfair and one-sided clause - Whether the complainants are entitled to refund of the amounts paid and compensation (interest) due to failure of the opposite party to deliver possession within the stipulated period despite contractual clauses limiting remedies. - HELD THAT: - The Commission found that the builder failed to deliver possession within the time committed and could not justify the delay, which amounted to a deficiency in service entitling the complainants to relief under the Consumer Protection Act. Clauses in the Apartment Buyers Agreement (notably the provision postponing termination rights and the clause providing for refund only after resale and allowing various deductions) were held to be one-sided and unfair; such terms cannot operate to deprive the buyers of effective remedies where the builder defaults in delivery. Reliance was placed on earlier decisions of the Commission addressing the same project and similar clauses, which had rejected the proprietors' contractual defences and directed refund with compensation. Applying that reasoning, the Commission directed refund of the amounts paid together with simple interest as compensation, notwithstanding the contractual limitations relied upon by the opposite party.Complainants entitled to refund of amounts paid with compensation by way of simple interest @ 10% p.a. from 10.07.2017 until payment.Termination and refund clause - grace period and delay compensation - unfair and one-sided clause - Whether clauses granting the builder a grace period and limiting delay compensation or prescribing refund only after resale can bar the Commission from directing immediate refund and interest. - HELD THAT: - The Commission held that contractual provisions granting the builder a grace period and limiting the buyer's remedy (including clause 44 and clause 21.3) are prima facie unfair and one-sided when they operate only to the buyer's detriment and leave the buyer remediless for extended periods. Such terms cannot be enforced to deny the buyer refund and compensation where possession is not delivered and construction remains incomplete. Accordingly, the Commission declined to allow those clauses to defeat the statutory power to grant relief for deficiency in service and ordered refund with interest within a specified period.Contractual clauses limiting buyer remedies or postponing refund were not permitted to deny relief; refund with interest directed.Deficiency in service - Whether the complainants' default in payment of an installment disentitles them from obtaining refund and compensation. - HELD THAT: - The opposite party contended that installment no.4 was unpaid and that default by the complainants should preclude full refund or compensation. The Commission, having regard to earlier decisions on the same project and the overall unfairness of the contractual terms relied upon by the builder, proceeded to direct refund with interest. The complaint was disposed of on the basis that the complainants would accept refund with interest on the terms ordered, thereby avoiding further litigation. The Commission did not allow the alleged default to bar the remedy in the circumstances of continued non-delivery and incomplete construction.Alleged default in an installment did not prevent directing refund and interest in the facts of this case.Final Conclusion: The complaint was allowed: the opposite party was directed to refund the entire amount received from the complainants together with simple interest at 10% per annum from 10.07.2017 until payment, to be paid within four weeks, failing which interest shall accrue in accordance with the order.

2019 (3) TMI 2000 - CENTRAL INFORMATION COMMISSIONIndian Laws

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Issues involved:
1. Delayed transfer of RTI application
2. Furnishing of circular issued by Ministry of Finance
3. Jurisdiction of Central Information Commission under RTI Act
4. Scope of Commission's intervention in grievance redressal

Delayed transfer of RTI application:
The Appellant raised concerns regarding the delayed transfer of his RTI application from the Head Office to Zonal Accounts Office, Shimla/Patiala. The Respondent clarified that their office at Shimla was established in 2012, leading to a delay in transferring such applications. The Commission noted the delay but did not delve into the merits of the case, citing the restrictions of the RTI Act.

Furnishing of circular issued by Ministry of Finance:
The Appellant sought details of a circular issued by the Ministry of Finance, which he claimed were not fully provided. The Commission directed the Respondent to furnish a copy of the OM issued by the MoF dated 30.08.2008 to the Appellant within 15 days, emphasizing the importance of providing information as per the RTI Act.

Jurisdiction of Central Information Commission under RTI Act:
The Commission referred to various legal precedents, including decisions by the Hon'ble Supreme Court and High Court of Delhi, emphasizing that the role of the Commission is limited to providing access to information and not to adjudicate disputes or grievances. It highlighted that the RTI Act does not serve as a platform for redressal of grievances or disputes, advising the Appellant to seek appropriate forums for grievance redressal.

Scope of Commission's intervention in grievance redressal:
The Commission reiterated that its jurisdiction is confined to issues related to the right to information and does not extend to resolving grievances or disputes. It cited several cases to support its stance that the RTI Act is not the appropriate law for redressal of grievances. The Commission advised the Appellant to approach the relevant forum for redressal of his grievance, signaling the limitations of the Commission's intervention in such matters.

In conclusion, the Commission disposed of the appeal, stating that no further intervention was necessary. It directed the Respondent to provide the requested circular to the Appellant and advised the Appellant to seek redressal through an appropriate forum. Additionally, the Commission instructed the Respondent to conduct conferences/seminars to educate officials on the provisions of the RTI Act for effective discharge of duties. The judgment underscored the Commission's role in providing access to information and highlighted the boundaries of its jurisdiction under the RTI Act.

Central Information Commission clarifies jurisdiction under RTI Act, directs educational programs on provisions
The Central Information Commission disposed of the appeal, emphasizing its limited role in providing access to information under the RTI Act and advising the parties to seek appropriate forums for grievance redressal. The Commission directed the Respondent to provide the requested circular to the Appellant and instructed them to conduct educational programs on RTI Act provisions. The judgment underscored the Commission's mandate in facilitating access to information while clarifying the boundaries of its jurisdiction in addressing grievances.

Definition of 'information' under Section 2(f) of the RTI Act - 'right to information' under Section 2(j) of the RTI Act - limits of the Information Commission's jurisdiction - RTI Act not a forum for redressal of service grievances - obligation to furnish records/ circulars/ orders existing in public authority's custody - duty to ensure timely transfer and disposal of RTI applicationsLimits of the Information Commission's jurisdiction - RTI Act not a forum for redressal of service grievances - Whether the Commission may adjudicate the appellant's grievance regarding pay fixation and grant relief beyond furnishing information. - HELD THAT: - The Commission applied the statutory definition of 'information' and the settled precedents which confine the Commission's role to determining access to information held by a public authority. It noted binding judicial authority that the RTI regime entitles an applicant to existing records but does not empower the Commission to decide disputes between parties or to adjudicate the merits of service grievances. Accordingly, the Commission declined to investigate or resolve the appellant's claim for re-fixation of pay, observing that such relief must be sought before the appropriate forum competent to decide service disputes.The Commission will not adjudicate the pay-fixation grievance; the appellant is advised to pursue redressal before an appropriate forum.Definition of 'information' under Section 2(f) of the RTI Act - obligation to furnish records/ circulars/ orders existing in public authority's custody - Whether the respondent must supply the Ministry of Finance/DoE OM dated 30.08.2008 sought in the RTI application. - HELD THAT: - Having held that the Commission's remit extends to access to existing information in the custody of the public authority, the Commission examined the appellant's request for the OM dated 30.08.2008. While it declined to go into merits of the underlying service dispute, the Commission found it appropriate to direct disclosure of the specific circular to which the appellant had referred, as that document falls within 'information' as defined under the Act and is not excluded from disclosure.A copy of the OM dated 30.08.2008 shall be furnished to the appellant free of cost within 15 days of receipt of this order.Duty to ensure timely transfer and disposal of RTI applications - Whether delay in transfer of the RTI application and related procedural lapse required further intervention by the Commission. - HELD THAT: - The respondents explained that the Zonal Accounts Office at Shimla came into existence in 2012, accounting for delay in transfer from the Head Office. On the material before it the Commission found no further intervention was warranted in the absence of a breach of any principle requiring remedial action beyond the directions already given. In addition, recognising systemic procedural deficiencies, the Commission recorded a need for capacity-building measures.No further remedial action on the particular delay; the Public Authority is directed to convene periodic conferences/seminars to sensitize officials about RTI obligations.Final Conclusion: The appeal is disposed. The Public Authority must supply the OM dated 30.08.2008 to the appellant free of cost within 15 days; the appellant is advised to seek redressal of the pay-fixation grievance before the appropriate forum; and the Public Authority is directed to undertake periodic training to improve compliance with RTI obligations.

2018 (5) TMI 1998 - CENTRAL ELECTRICITY REGULATORY COMMISSION, NEW DELHIIndian Laws

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Review petitions should be heard by the same members, unless necessity requires a valid substitute quorum.
Review petitions before the Commission should ordinarily be heard by the same members who passed the original order, reflecting the review principle in Section 114 and Order 47 of the CPC. Where one or more of those members are unavailable because of death, superannuation or similar unavoidable cause, the doctrine of necessity permits a substitute quorum to hear the matter. The procedure must preserve propriety while ensuring the review jurisdiction remains workable. If the original quorum is available, only that quorum should hear the review; if not, the Chairperson may form an equal quorum including the available original members, or, where that is not possible, a lesser quorum of not less than two members including the available original members.

Quorum for review petitions - Order XLVII Rule 5 CPC - same judges to hear review - doctrine of necessity - guidance of CPC for tribunals and commissions - CBR quorum requirement - Section 94 powers of Appropriate Commission (review) - Section 93 - vacancies not to invalidate proceedingsQuorum for review petitions - Order XLVII Rule 5 CPC - same judges to hear review - doctrine of necessity - CBR quorum requirement - Section 94 powers of Appropriate Commission (review) - Principles governing the constitution of the quorum of the Central Commission for hearing review petitions of its own orders. - HELD THAT: - The Commission held that, although the Code of Civil Procedure is not stricto sensu applicable to the Commission, its provisions on review (Section 114 and Order XLVII) may act as a guiding principle. The Central Electricity Regulatory Commission (CBR) prescribes a minimum quorum of two, and Section 94 empowers the Commission to exercise CPC powers, including review. Applying the established authorities and Order XLVII Rule 5, the Commission decided that where the members who formed the quorum and heard the main petition are available, those same members alone should hear and decide the review petition; no other member is to be associated at the review stage. If one or more members who heard the main petition are unavailable by reason of death, superannuation or absence for six months, the doctrine of necessity permits other member(s) to hear the review; in that event the Chairperson shall constitute a quorum consisting of an equal number of members, including any available member(s) who heard the original matter. Where it is impossible to constitute an equal quorum because of vacancies, the Chairperson may constitute a lesser quorum (subject to the statutory minimum of two members) including available member(s) who heard the original petition. These principles reconcile the Commission's Regulations, the guiding force of CPC review rules, the doctrine of necessity and Section 93's non-invalidity of proceedings despite vacancies. [Paras 22, 23]The Commission will be guided by Order XLVII of the CPC; reviews shall be heard by the same members who heard the original matter if available; otherwise the doctrine of necessity permits constitution of an appropriate quorum as specified, subject to a minimum of two members; review petitions shall be listed accordingly.Final Conclusion: The Commission laid down binding principles for constitution of quorum in review petitions: same members who decided the original matter should hear the review if available; otherwise, in cases of death, superannuation or absence for six months, the Chairperson shall constitute an appropriate quorum (preferably equal to the original quorum, or if not possible, a lesser quorum not below two) and the review petitions shall be listed before such quorums.

2018 (7) TMI 1221 - CENTRAL INFORMATION COMMISSIONIndian Laws

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Commission: Non-disclosure sans court order unjustifiable under RTI Act; Emphasizes transparency
The Commission held that non-disclosure of information based on sub-judice status without a specific court order is legally unjustifiable under the RTI Act. Emphasizing transparency, it criticized the CPIO and Bank Chief Manager for misinterpreting provisions. The Commission directed the CPIO and FAA to provide the requested information promptly, highlighting the importance of compliance with the RTI Act. The FAA was reprimanded for not adhering to RTI Act provisions and advised to be vigilant in future implementations.

Sub-judice is not a ground for denial of information under the RTI Act - exemption limited to information expressly forbidden by a court or disclosure amounting to contempt of court - obligation of CPIO/FAA to supply information unless a specific judicial prohibition exists - right to information and inspection not curtailed by pendency of proceedingsSub-judice is not a ground for denial of information under the RTI Act - exemption limited to information expressly forbidden by a court or disclosure amounting to contempt of court - Refusal to disclose information on the sole ground that the matter is sub-judice is legally untenable and the CPIO/FAA must supply the information unless disclosure has been specifically forbidden by a court. - HELD THAT: - The Commission applied the settled principle that the RTI Act contains no general exemption for matters which are sub-judice. Only where a court or tribunal has expressly forbidden publication or where disclosure would constitute contempt of court does the statutory exemption operate. Reliance on prior decisions was made to emphasise that mere pendency of litigation does not attract any of the exemptions under the Act and cannot be invoked as a reason to deny access. In the facts of the case the CPIO declined to furnish point A(iii) on the ground that the matter was sub-judice and the FAA treated that reply as null and void; the Commission found this approach incorrect and directed provision of the information, observing that denial on the basis of sub-judice was contrary to the RTI Act and the Commission's precedents.The CPIO/FAA is directed to provide the information on point A(iii) to the applicant within 15 days; denial on the ground of sub-judice is rejected.Obligation of CPIO/FAA to supply information unless a specific judicial prohibition exists - right to information and inspection not curtailed by pendency of proceedings - FAA acted improperly in endorsing non-disclosure and is admonished to exercise due diligence in implementation of the RTI Act. - HELD THAT: - The Commission noted that the FAA failed to act in accordance with the RTI Act by upholding or effectively endorsing the CPIO's refusal. The FAA is advised to be alert and cautious in future implementation of the Act and to ensure that decisions denying information rest on valid statutory exemptions-specifically a court order forbidding disclosure or a finding of contempt-rather than on the mere pendency of proceedings.FAA criticised for incorrect handling and advised to exercise due diligence; no further relief against FAA other than the advisory and the primary direction to the CPIO.Final Conclusion: Appeal disposed: the Commission directed disclosure of the requested information on point A(iii) within 15 days, held that pendency of litigation is not a ground for withholding information under the RTI Act unless disclosure is expressly forbidden by a court or would constitute contempt, and advised the FAA to act with due diligence in future RTI matters.

2018 (2) TMI 1741 - NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIIndian Laws

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Consumer Forum Orders Refund with Interest, Emphasizes Diligence in Consumer Protection Matters
The District Forum ordered the respondents to refund the amount with interest at 15% per annum due to the non-allotment of the site and failure to provide documents related to layout approval. The State Commission modified the interest rate and directed the refund of the principal amount with interest at 15% per annum. The Commission dismissed the revision petition due to a delay of 126 days, emphasizing the need for diligence in consumer protection matters. The claim for additional compensation was denied, stating no jurisdictional error or material irregularity was found in the impugned order.

Condonation of delay - sufficient cause for delay - exercise of discretionary jurisdiction - limitation as bar to revision - no jurisdictional error - consumer forum orders-scope of interferenceCondonation of delay - sufficient cause for delay - limitation as bar to revision - Whether the delay of 126 days in filing the revision petition ought to be condoned - HELD THAT: - The Court examined the explanation for the 126 days' delay and found the reasons vague, lacking day-to-day particulars, and not establishing that all possible steps were taken with due diligence. Reliance was placed on established principles that 'sufficient cause' is a question of fact and that condonation is discretionary; the petitioner's explanation did not meet the test of acting bona fide and with reasonable diligence. In these circumstances the Court concluded that sufficient cause was not shown and the revision petition was liable to be dismissed on limitation grounds. [Paras 10, 11, 12, 13, 14]Delay not condoned; revision petition dismissed on limitation groundsNo jurisdictional error - consumer forum orders-scope of interference - exercise of discretionary jurisdiction - Whether there was any jurisdictional error or material irregularity in the State Commission's order warranting interference on merits - HELD THAT: - The Court noted the factual background that the petitioner was a member of the cooperative society aware of the difficulties in land acquisition and approvals, and that she could have sought refund earlier. The State Commission's modification of the District Forum's order (refund with interest from date of complaint) was examined and no jurisdictional error or material irregularity was found that would justify interference under the revisional jurisdiction. Accordingly the Court declined to disturb the State Commission's order on merits. [Paras 15, 16]No interference with the State Commission's order; revision dismissed on meritsFinal Conclusion: The revision petition is dismissed: delay of 126 days not condoned for want of sufficient cause, and on merits no jurisdictional error or material irregularity was found in the State Commission's order; no order as to costs.

2016 (12) TMI 1896 - NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIIndian Laws

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Corporate veil and consumer liability in cooperative societies: office bearers are usually not service providers, unless fraud is proved.
A registered cooperative credit society has a separate legal identity, so service is ordinarily rendered by the society itself and ex-Secretary, ex-President and other office bearers do not become service providers merely by holding office, because they lack privity of contract with depositors. Where the society is used as a cloak for fraud, illegality or misfeasance, the corporate veil may be lifted and personal liability may be fastened on the office bearers on the facts proved. The operative distinction is therefore between ordinary corporate immunity for office bearers and exceptional personal responsibility where deceitful conduct is established.

Service provider - consumer - deficiency in service - privity of contract - corporate personality / body corporate - lifting the corporate veil - misfeasance / fraudulent activityService provider - consumer - privity of contract - corporate personality / body corporate - Whether ordinarily Ex-Secretary or Ex-President or other office bearers of a Cooperative Credit Society fall within the category of service providers. - HELD THAT: - The Commission held that a registered co-operative society is a body corporate having an identity distinct from its members and office-bearers. In dealings between depositors and the society the society alone is ordinarily the service provider, because office-bearers do not have privity of contract with the consumers. That conclusion is founded on the statutory concept of corporate personality (Section 30 of the Punjab Cooperative Societies Act) and consistent judicial exposition that members or managing committee stand on a different footing and cannot be held individually liable except by following statutory procedure under the cooperative enactment. Accordingly, office-bearers will not, as a general rule, be treated as service providers vis-a -vis depositors of the society. [Paras 14, 15, 16, 17]Ordinarily Ex-Secretary, Ex-President or other office bearers of a Cooperative Credit Society shall not fall within the category of service providers in respect of dealings between depositors and the society.Lifting the corporate veil - misfeasance / fraudulent activity - service provider - deficiency in service - Whether office bearers can be treated as service providers if they exploit the corporate form to defraud depositors or commit misfeasance. - HELD THAT: - Relying on the principle of lifting the corporate veil as expounded by the Supreme Court in Skipper Construction and authorities discussed therein, the Commission held that where the corporate form is used as a cloak for fraud or improper conduct, courts will disregard corporate personality and look to the real actors behind the society. If it is established on evidence that an Ex-Secretary, Ex-President or other office-bearer indulged in misfeasance or fraudulent activity to defraud depositors under the garb of the cooperative society, such individuals shall be treated as service providers and may be held personally liable to compensate consumers for deficiency in service. The determination of such liability is a question of fact to be decided on the basis of evidence. [Paras 17, 18, 19]If an office-bearer has exploited the corporate character to commit illegality or fraud, that person shall be treated as a service provider and may be held personally liable for deficiency in service; factual determination to be made on evidence.Deficiency in service - service provider - Further proceedings in the pending revision petitions in light of the answers given to the reference question. - HELD THAT: - The Commission directed that the revision petitions in which the reference was made be listed before appropriate Benches for further proceedings consistent with the legal conclusions provided: (a) office-bearers are not ordinarily service providers, and (b) where fraud/misfeasance under the corporate veil is established, office-bearers may be treated as service providers. The subsequent proceedings before the appropriate Benches must apply these principles and decide, on the evidence in each case, whether the office-bearers fall within the exception. [Paras 19]The referenced revision petitions are to be listed before appropriate Benches for further proceedings in light of the answers given.Final Conclusion: Answer to reference: ordinarily office-bearers of a Cooperative Credit Society are not service providers in respect of depositors' dealings with the society; but if, on evidence, an office-bearer has indulged in misfeasance or fraud by using the society's corporate form, the corporate veil may be lifted and that person treated as a service provider liable for deficiency in service. The pending revision petitions are to proceed before appropriate Benches applying these principles.

2016 (11) TMI 1569 - Central Information Commission, New DelhiIndian Laws

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RTI disclosure of termination file notings cannot be refused merely because a service dispute is pending before a tribunal.
The Right to Information law does not create a general exemption for matters merely because they are pending before a tribunal. Disclosure may be withheld only where a court or tribunal has expressly prohibited it, or where release would amount to contempt. As the request related to the appellant's own termination file, the pendency of the service dispute was not a valid ground to refuse the file notings. The CPIO was directed to obtain the records from the regional office and supply them, and disclosure was ordered.

2016 (11) TMI 1425 - CENTRAL INFORMATION COMMISSIONIndian Laws

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Respondent Directed to Provide Order Details to Commission within 30 Days
The Commission directed the respondent to provide impugned order details within 30 days and advised updating and uploading the information on the Supreme Court's website. No penalty was imposed on the CPIO.

Right to Information limited to information held by the public authority - obligation to maintain and disclose records under Section 4(1)(b) - information available in electronic database and inspection of digital data - public authority not required to create, collate or compile non existent information - interaction of procedural rules for certified copies with RTI access to held information - public interest in linking appellate orders with impugned ordersRight to Information limited to information held by the public authority - information available in electronic database and inspection of digital data - Entitlement of the appellant to details of impugned orders and inspection/provision of digital data held in the Supreme Court database - HELD THAT: - The Commission found that the appellant did not seek certified judicial records but metadata/details (name of Court/Agency which passed the order, date of judgment and case number) which are already held in the Supreme Court's kiosk/database in many cases. The Commission observed that no case to deny such information has been made out and that provision of these details would assist the public in linking Supreme Court orders with impugned orders and serve larger public interest. Consequently, where such information is held, it falls within the ambit of information accessible under the Act and ought to be furnished. [Paras 54, 55]Respondent directed to furnish, if available, the impugned order details of the cases mentioned in the RTI requests within 30 days.Interaction of procedural rules for certified copies with RTI access to held information - obligation to maintain and disclose records under Section 4(1)(b) - Whether the requirement to obtain certified copies under Order XIII of the Supreme Court Rules precludes disclosure under the RTI Act of non certified impugned order details held in the Court's database - HELD THAT: - The Commission noted that the appellant expressly did not seek certified copies and distinguished disclosure of held metadata from obtaining certified judicial records under Order XIII. While recognising that Section 4 compliance is an obligation of the public authority, the Commission advised the respondent to update and upload, as available, details of impugned orders on the Supreme Court website in the larger public interest. The Commission therefore did not treat procedural rules for certified copies as a bar to disclosure of information already held in the database in non certified form. [Paras 54, 57]Respondent advised to update and upload the available details of impugned orders on the Supreme Court's website.Public authority not required to create, collate or compile non existent information - Right to Information limited to information held by the public authority - Scope of the CPIO's obligation to collect or collate information not maintained in the form sought - HELD THAT: - The Commission considered the established principle that a public authority is not obliged to collect or collate information which is not part of its records. The respondent had contended that where information is not updated on internal servers or not available for upload, it cannot be provided or may require certified copy procedure. The Commission applied this principle by distinguishing requests for creation/compilation of new material from requests for information already held; since the impugned details exist in many cases in the database, the Commission directed disclosure of such available information while implicitly recognising that the authority is not required to create or collate information that is not held. [Paras 40, 41, 45, 56]Disclosure required where information is held; no obligation to create or collate information that is not maintained.Final Conclusion: The appeals are disposed of by directing the respondent to furnish, if available, the impugned order details of the cases specified in the RTI requests within 30 days and recommending that the respondent update and upload available impugned order details on the Supreme Court website in the larger public interest; disclosure is required as to information already held, while the authority is not bound to create or collate non existent records.

2016 (8) TMI 1457 - NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI Indian Laws

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Compensation awarded for delayed possession of apartment, unfair practices found. Justifications for delay deemed insufficient.
The complainants sought compensation for delay in possession of a residential apartment. The Commission held the opposite party liable for delay and directed payment of compensation at 10% per annum from the committed possession date until actual possession. Unfair trade practices were found due to one-sided clauses in the agreement. The opposite party's justifications for delay were deemed insufficient. The complainants were awarded a cost of litigation. The opposite party was instructed to complete construction and offer possession by a specified date, failing which execution could be sought under the Consumer Protection Act.

Deficiency in service - unfair trade practice - builder's contractual obligation to complete within committed time unless prevented by circumstances beyond its control - force majeure / delay beyond the control of the company - time not ordinarily of the essence in contracts for sale of immovable property - nominal contractual delay charge v. adequate compensation - unconscionable term - compensation for delay by way of interestForce majeure / delay beyond the control of the company - builder's contractual obligation to complete within committed time unless prevented by circumstances beyond its control - Whether the delay in completion and offer of possession was attributable to circumstances beyond the control of the opposite party so as to absolve it of liability for delay. - HELD THAT: - The opposite party pleaded shortage of labour/material due to Commonwealth Games, agitation by farmers and interim orders of the National Green Tribunal as causes beyond its control. The Commission found no evidence that labour or material were unavailable due to the Games or that contractors had refused to work; no affidavits or records substantiated the alleged two month halt due to farmers; and the NGT interim orders either did not apply to projects with requisite environmental clearance or, insofar as they withheld completion certificates, did not justify delay at a stage when construction was incomplete. The opposite party was expected to seek alternative water sources or approach the NGT for directions if governmental delay impeded clearance. On the material on record the claimed causes did not suffice to excuse the delay. [Paras 5, 6, 7, 8, 9]Delay was not shown to be due to circumstances beyond the control of the opposite party; the defence of force majeure / excusing events is rejected.Deficiency in service - unfair trade practice - time not ordinarily of the essence in contracts for sale of immovable property - Whether the unjustified delay in offering possession amounts to deficiency in service or an unfair trade practice entitling the complainants to relief under the Consumer Protection Act despite the general principle that time is not ordinarily of the essence in sale of immovable property. - HELD THAT: - While courts generally presume that time is not of the essence in contracts for sale of immovable property, that principle does not preclude relief under consumer law where a builder commits a date/timeframe and fails to honour it without justification. The primary purpose of a purchaser booking a constructed flat is to occupy it around the committed date; an unjustified failure to deliver possession constitutes deficiency in service. Further, contractual clauses prescribing nominal flat compensation (as opposed to the high contractual interest charged on buyers for delayed payments) may be unconscionable and amount to unfair trade practice because purchasers often have no real choice but to accept such standard form terms. Accordingly, the Commission held that unjustified delay by the builder amounts to deficiency in service/unfair practice and warrants compensation. [Paras 10, 12]Unjustified delay in handing over possession constitutes deficiency in service and may amount to an unfair trade practice; the complainants are entitled to compensation.Compensation for delay by way of interest - nominal contractual delay charge v. adequate compensation - unconscionable term - What is the appropriate measure and rate of compensation for the delay in handing over possession? - HELD THAT: - The Commission noted precedent where an interest based compensation was awarded and observed market borrowing and deposit rates. Considering decline in cost of borrowing and returns on bank investments, the Commission adopted an all inclusive compensation in the form of simple interest at 10% per annum, running from the committed date of possession under the Buyers Agreement until the date possession is offered. The order also permits adjustment of any balance amount payable by the complainants and allows the opposite party to set off interest/charges already paid or waived against compensation payable. [Paras 13, 14]Compensation fixed as simple interest at 10% per annum from the committed possession date until possession is offered; any outstanding dues of the complainants may be adjusted against this compensation.Builder's contractual obligation to complete within committed time unless prevented by circumstances beyond its control - compensation for delay by way of interest - Reliefs and directions to effectuate the decision, including deadline for completion, payment of compensation and costs. - HELD THAT: - The Commission directed the opposite party to complete construction, obtain requisite approvals including occupancy certificate, and offer possession on or before 31.01.2017. The opposite party was directed to pay the compensation in terms of the order when offering possession; failure to comply would entitle the complainants to execution under the Consumer Protection Act. The Commission also awarded litigation costs to the complainants. [Paras 14]Opposite party to complete construction and hand over possession by 31.01.2017, pay compensation at 10% p.a. from the committed date till possession, and pay Rs.10,000 as litigation cost; non compliance liable to execution.Final Conclusion: The Commission held that the opposite party failed to justify the delay in delivering possession and that such unjustified delay constituted deficiency in service and an unfair trade practice; it directed completion and handing over of the flat by 31.01.2017, awarded compensation by way of simple interest at 10% per annum from the committed date of possession until possession is offered (with adjustment for any sums due/waived), and granted litigation costs of Rs.10,000.

2016 (7) TMI 1700 - NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIIndian Laws

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Company purchasing goods for directors' personal use doesn't constitute commercial purpose under Section 2(1)(d) Consumer Protection Act
The National Consumer Disputes Redressal Commission ruled on whether a company's purchase of goods for directors' personal use constitutes commercial purpose under Section 2(1)(d) of the Consumer Protection Act. The Commission held that goods purchased by a company for personal use of directors/employees do not constitute commercial purpose, regardless of incidental company use. However, goods purchased for company purposes constitute commercial purpose even if incidentally used personally by directors/employees. The test is whether the acquisition is intrinsically connected to business activities and aimed at generating profits, not the value of goods purchased.

Purchase for a commercial purpose - purpose for which goods are obtained - dominant purpose test - commercial purpose connected to business activities - classification of goods/services into personal, mixed and commercial use - close nexus between purchase and profit-making activity - definition of "consumer" under the Consumer Protection ActPurchase for a commercial purpose - purpose for which goods are obtained - dominant purpose test - classification of goods/services into personal, mixed and commercial use - Whether goods (including cars) or services obtained by a company for use/personal use of its directors or employees amount to purchase or hiring for a commercial purpose under Section 2(1)(d) of the Consumer Protection Act. - HELD THAT: - The Commission held that the statutory inquiry is into the purpose for which goods are obtained or services availed and not merely into their ownership by a corporate entity. In the absence of a statutory definition of 'commercial purpose', ordinary meaning and the decisions of the Apex Court guide the test: the acquisition must be intrinsically connected with, or related to, the business or commerce of the company and aimed at generating profits or advancing the company's business activities. The Court formulated a dominant-purpose approach and classified such acquisitions into three categories: (a) goods/services obtained solely for personal use of directors/employees and unconnected with business; (b) goods/services obtained mainly for personal use but incidentally used for company purposes; and (c) goods/services obtained primarily for company purposes and only incidentally for personal use. Acquisitions in category (a) are not for a commercial purpose. Even where use is primarily personal but incidentally for business (category (b)), the dominant purpose remains personal and therefore not commercial. Only acquisitions in category (c), where the dominant purpose is to advance or sustain the company's business, qualify as obtained for a commercial purpose. The Commission rejected arguments that mere tax treatment (such as claiming depreciation) or corporate ownership alone converts a personal-use acquisition into a commercial one, noting that tax consequences are not determinative of the purpose test under the Act. The holding aligns with the requirement of a close nexus between the purchase and profit-making activity for exclusion from the definition of 'consumer'. [Paras 5, 6, 8, 9, 11]A company's purchase of goods or hiring/availing of services for the personal use of its directors or employees is not a purchase for a commercial purpose (whether used solely for personal purposes or mainly for personal purposes with incidental company use); conversely, purchases or hiring made primarily for the purposes of the company are for a commercial purpose.Final Conclusion: The reference is answered: acquisitions by a company for the personal use of its directors or employees do not constitute purchase/hiring for a commercial purpose under Section 2(1)(d) of the Consumer Protection Act, whereas acquisitions made primarily to advance the company's business do amount to commercial purpose.

2016 (5) TMI 432 - CENTRAL INFORMATION COMMISSIONIndian Laws

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Issues:
1. Non-compliance with RTI application response by the then CPIO.
2. Imposition of penalty under section 20 of the RTI Act.
3. Disciplinary action against the former CPIO.
4. Compliance with the Central Information Commission's orders.

Issue 1: Non-compliance with RTI application response by the then CPIO
The Central Information Commission had directed the former CPIO, Shri Nirmal Singh, to show cause for not replying to an RTI application within the stipulated time period. The Commission noted that Ms. Asha Sota, a subordinate to the CPIO, might have had to act as per the CPIO's instructions. The former CPIO, being responsible under the RTI Act, was required to explain why he had not responded to the RTI application under his signature, potentially abdicating his statutory responsibility. The Commission adjourned the penalty hearing and directed the former CPIO to be present with written submissions.

Issue 2: Imposition of penalty under section 20 of the RTI Act
In compliance with the Central Information Commission's order, the former CPIO, Mr. Nirmal Singh, appeared before the Commission and explained that Ms. Asha Sota, as the appointed PIO, should have responded to the RTI application. Mr. Nirmal Singh, a pensioner surviving on his pension, clarified the RTI-related issues during his tenure as CPIO. The Commission, satisfied with his compliance and explanation, dropped the penalty proceedings. The Commission directed the public authority to provide necessary assistance to Mr. Nirmal Singh, including reimbursing his expenses for attending the Commission.

Issue 3: Disciplinary action against the former CPIO
The Commission considered the former CPIO's compliance with its order and dropped the penalty proceedings after being satisfied with his explanation. Mr. Nirmal Singh's explanation regarding the RTI application and his compliance with the Commission's order led to the Commission's decision to not recommend disciplinary action against him.

Issue 4: Compliance with the Central Information Commission's orders
The CPIO informed the Commission that the required information had been provided in response to the RTI application, and the complainant had acknowledged its receipt. The Commission noted the complainant's contribution to improving the RTI system and record-keeping within the public authority. Consequently, the Commission closed the complaint as the necessary information had been provided, and the complainant was satisfied with the response.

Former CPIO Cleared in RTI Non-Compliance Case
The former CPIO was directed by the Central Information Commission to explain non-compliance with an RTI application response. The Commission adjourned the penalty hearing for the former CPIO to provide written submissions. Subsequently, the former CPIO clarified that another officer should have responded and explained RTI-related issues during his tenure. Satisfied with his compliance, the Commission dropped the penalty proceedings and directed the public authority to assist him. No disciplinary action was recommended, and the complaint was closed after the required information was provided to the complainant, who was satisfied with the response.

Penalty under the RTI Act - Designated CPIO's responsibility - Provision of information under RTI and closure of complaint - Reimbursement of expenses for compliance/attendancePenalty under the RTI Act - Designated CPIO's responsibility - Penalty proceedings against the former CPIO Shri Nirmal Singh were dropped. - HELD THAT: - The Commission recorded that Shri Nirmal Singh attended pursuant to earlier directions and explained that Ms. Asha Sota, being duly appointed PIO at the relevant time, was required to reply to the RTI application. Shri Nirmal Singh also stated his status as a pensioner and explained his compliance with the Commission's directions along with the present CPIO. The Commission accepted his explanation as official compliance and, being satisfied, discontinued the penalty proceedings initiated against him. [Paras 4]Penalty proceedings against Shri Nirmal Singh are dropped.Provision of information under RTI and closure of complaint - The required information had been furnished to the complainant and the complaint was closed. - HELD THAT: - The present CPIO stated that information ordered by the Commission had been furnished and the complainant confirmed receipt. Having considered the submissions and records, the Commission held that the requisite information has been provided and the complainant is satisfied, warranting closure of the complaint. [Paras 4]Required information has been furnished; the complaint is closed.Reimbursement of expenses for compliance/attendance - The public authority was directed to provide assistance to Shri Nirmal Singh, including reimbursement of his expenses incurred to attend the Commission, and to intimate compliance within one month. - HELD THAT: - The Commission directed the public authority to comply with its earlier order by providing necessary assistance to Shri Nirmal Singh, explicitly including reimbursement of expenditure incurred by him in attending the Commission. The Commission required the authority to intimate compliance within one month of receipt of the order. [Paras 5]Public authority to provide assistance and reimburse expenses to Shri Nirmal Singh; compliance to be intimated within one month.Final Conclusion: The Commission accepted the explanations, dropped penalty proceedings against the former CPIO, held that the required information was furnished and closed the complaint, and directed the public authority to assist and reimburse Shri Nirmal Singh for attendance-related expenses with compliance to be reported within one month.

2016 (4) TMI 1015 - CENTRAL INFORMATION COMMISSIONIndian Laws

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Issues Involved:
1. Denial of information under RTI Act based on false claim of pending investigation.
2. Allegation of deliberate obstruction of information with malafide intent.
3. Error of judgment by CPIO leading to wrongful exemption under Section 8(1)(h) of RTI Act.

Analysis:

Issue 1: Denial of information under RTI Act based on false claim of pending investigation
The appellant filed an RTI application seeking specific information related to an alleged pending investigation before the Competent Authority. The CPIO denied the information citing exemption under Section 8(1)(h) of the RTI Act, claiming the matter was under investigation. However, it was revealed that no such investigation was pending as confirmed by the Deputy Registrar/CPIO of CESTAT, Bangalore. The CPIO's response was deemed false and illegal, leading to the appellant's appeal against the denial of information.

Issue 2: Allegation of deliberate obstruction of information with malafide intent
The appellant alleged that the CPIO deliberately obstructed the information sought with malafide intent. The appellant argued that the CPIO's actions were intentional and aimed at preventing the disclosure of information rightfully requested under the RTI Act. This accusation raised concerns about the transparency and accountability of the information dissemination process under the Act.

Issue 3: Error of judgment by CPIO leading to wrongful exemption under Section 8(1)(h) of RTI Act
The respondent CPIO admitted to an error of judgment in interpreting a communication regarding a show cause notice as an indication of a pending inquiry. This misinterpretation led to the wrongful application of Section 8(1)(h) of the RTI Act to deny the requested information. The First Appellate Authority acknowledged the error and directed the CPIO to be more cautious in the future to avoid similar mistakes.

Decision:
The Central Information Commission found that the CPIO's claim of exemption under Section 8(1)(h) was wrongful as no inquiry was actually pending. While the CPIO provided misleading information, the Commission noted there was no malafide intent involved. The CPIO was cautioned to be more diligent in the future to prevent such errors and ensure compliance with the RTI Act. The appeal was disposed of with directions for free provision of the decision copy to the concerned parties.

CPIO Misapplied RTI Act Section, Commission Directs Diligence & Free Decision Copy
The Central Information Commission found that the CPIO wrongfully denied information under the RTI Act based on a false claim of a pending investigation. The Commission noted the error of judgment by the CPIO in applying Section 8(1)(h) incorrectly but found no malafide intent. The CPIO was directed to be more diligent in the future, and the appeal was disposed of with directions for the free provision of the decision copy to the parties involved.

Exemption under Section 8(1)(h) of the RTI Act - absence of pending inquiry as negating exemption - misleading or incorrect information furnished by CPIO - malafide intent - caution and direction to public authority to ensure RTI complianceExemption under Section 8(1)(h) of the RTI Act - absence of pending inquiry as negating exemption - Claim of exemption under Section 8(1)(h) held unjustified because no inquiry was pending at the relevant time. - HELD THAT: - The CPIO denied the requested information by invoking exemption under Section 8(1)(h) on the ground that an investigation/enquiry was pending. The Commission found that no inquiry was pending in 2012 and that disciplinary proceedings were ordered only on 13.03.2013, so the factual predicate for the exemption did not exist. Consequently the exemption could not lawfully be claimed and the CPIO's reply of 04.10.2012 was incorrect. The First Appellate Authority had already recorded the error and directed greater care in future. [Paras 6]The claim of exemption under Section 8(1)(h) was wrongly made and is not sustained.Misleading or incorrect information furnished by CPIO - malafide intent - caution and direction to public authority to ensure RTI compliance - Although the CPIO furnished misleading and incorrect information, there was no finding of malafide intent; CPIO is cautioned and directed to be careful and ensure RTI Act compliance. - HELD THAT: - The Commission accepted that the CPIO's response was misleading and factually incorrect. However, on the evidence and explanations placed before it, the Commission did not infer any malafide motive on the part of the CPIO, characterising the error as one of judgment. In view of the lapse the CPIO was formally cautioned and directed to ensure that future responses conform to the requirements of the RTI Act and are provided in letter and spirit. [Paras 6]No malafide intent found; CPIO cautioned and directed to be more careful and to ensure compliance with the RTI Act.Final Conclusion: The appeal is disposed of: the CPIO's claim of exemption under Section 8(1)(h) was unsustainable because no inquiry was pending at the relevant time; the CPIO furnished incorrect information but acted without malafide intent, and is cautioned and directed to ensure strict compliance with the RTI Act; copies of the decision to be supplied free of cost.

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