Complaint filed before the Chief Information Commissioner, State Information Commission Maharashtra State as per the Right

to Information Act, 2005 section 18(1). No.MuMaAa/Registration no.2011/71/Complaint No.25/2010 No.MuMaAa/Registration no.50144/Appeal no.6336 Shri Bhaskar Prabhu, A-31, Royal Industrial Estate, M.M.G.S. Marg, Wadala, Mumbai 400 031 Shri S.K. Nangia, 704, Golden Chariot Co-op. Society 133/Sector-6, Charkop, Kandivli West, Mumbai 67 Shri Chetan Kothari, 52, Oceanic Apartment, Dr. Rajabali Patel Lane of B. Desai Road, Mumbai 400 026 Shri Dilip B. Nevatia, Shashi Deep 5-A, Worli Sea face, Mumbai 400 030 Versus 1. Additional Commissioner, General Administration Department, Greater Mumbai Head Quarters, Mumbai 01 Non complainants 2. Deputy Commissioner, General Administration Department, Greater Mumbai Head Quarters, Mumbai 01 --- Decision --Date of the complaint 18.10.2010 Date of hearing 2/2/2011 Complainants present, non complainants absent, representative present. Complainants

1. Shri Bhaskar Prabhu and Shri S.K. Nangia have made a complaint to the State Information Commission on date 3.1.2011 under the Right to Information 2005 section 18(1) that the Public Information Officer from the Municipal Corporation of Greater Mumbai charges unreasonable fee in the context of documents even after the decision of the State Information Commission of date 16.2.2009 and Date 9.7.2010. 2. A photo copy of the letter of the Public Information Officer of date 23.11.2010 of charging in the context of the application of Shri Chetan Kothari has been enclosed herewith. 3. Shri Dilip Nevatia has also filed second appeal with the State Information Commission on date 18.10.2010 about charging of unreasonable fee. Therefore its hearing has been conducted together on date 9.2.2011. 4. It has been stated in the complaint and in the appeal that fee is being charged in excess of the fee mentioned as per the provision in the Right to Information Rule 2005. Similarly the decisions given by the State Information Commission in appeal no.215/02, appeal no.2977/02, complaint no.352/02, 277/02 are also not being followed. 5. Hearing had been arranged in the context of the said complaint on date 2.2.2011. For that clarification had been called from the Public Information Officer as well as the Assistant Tax Assessor H/West from the Municipal Corporation of Greater Mumbai. However as they told the Commission that they could not take policy decisions, orders were issued by the Commission that the officer, who had approved the circular no.MOA/84 dated 27.4.2009 of the Municipal Corporation of Greater Mumbai, General Administration Department, should remain present at the hearing. In that, orders were for the Chief Employees/Officer, Deputy Commissioner, General Administration Department, Additional Municipal Commissioner (Eastern suburbs) to remain present. However, the concerned officers did not present themselves at the hearing; instead, they again informed that the Tax Assessor and Collector (H/West) as well as other Assistant Engineer and Executive Engineer should remain present. As such the Assistant Engineer and Executive Engineer remained present. However as per the written clarification and oral argument presented before the Commission, they said that they had only followed the rules set by the senior officers of the Municipal Corporation and said before the Commission that they could not take policy decision. They said that the senior officers of the General Administration Department only could tell on what basis the fee should be charged. 6. At the time of the hearing only of the complaint and appeal of Shri Chetan Kothari the Executive Engineer made a statement before the Commission that fee was charged as per the circular of the General Administration Department of the Municipal Corporation of Greater Mumbai and that was the reason why the Commission had issued orders that the senior officers should remain present. Even then orders were issued about the officers, who could not take decision, to remain present at the hearing of the complaint again. From this either the Chief Employees Officer, In Charge Deputy Commissioner, General Administration Department, Additional Municipal Commissioner (Eastern suburbs) did not have the gravity of the subject or their arrogance is seen. Therefore they have shown contempt of the notice of the Commission 2

and the officers of the Municipal Corporation of Greater Mumbai seem to be ignorant of the status of the State Information Commission and the status of the Chief Information Commissioner. The State Chief Commissioner enjoys the status of the post of the Central Election Commissioner and the Commission has the powers to issue warrant to any person/officer fro remaining present at a hearing for the inquiry of any complaint as per the Act, section 18(3), according to the Civil Procedure Code 1908. So it is necessary for the Commissioner, Municipal Corporation to give warning to his officers in the context of the State Information Commission and even though hearing has been conducted in the context of the said complaint, ex parte decision is being given as the officers in the decision process were not present and if the decisions of the State Information Commission are not followed henceforth, orders to pay compensation to the complainant/applicant will have to be given to the public authority. 7. The complainant Shri Bhaskar Prabhu, while arguing before the Commission, said that the Municipal Corporation of Greater Mumbai had violated the decision of the State Information Commission of date 9.7.2010. Similarly they have violated the provision of the Maharashtra Right to Information Act 2005. Shri Chetan Kothari, incidental to the application of information, brought to the notice of the Commission on date 23.11.2010 that the amount had been charged as Further expenses towards Xeroxing and conveyance to make Xeroxing will have to be borne by you. Similarly Shri Leslie Almeida had been informed by the Asst. Tax Assessor as well as by the Public Information Officer in the reference dated 18.10.2010 that inspection extracts of the property made for the year 2009-10 will be available on payment made of Rs.230/- per property per year and fee had been fixed accordingly and has been informed as per the said letter that that fee should be paid and this has been brought to the notice of the Commission. Shri Dilip Nevatia has also made argument as above before the Commission and complaints of many appellant complainants have been filed with the Commission for the above matter and are being filed. That is why this combined and all inclusive decision is given. 8. The complainant has also to say that the Public Information Officer as well as Shri Nangia brought the letter given to the Chief Information Commissioner on date 17.5.2009 also to the notice of the Commission. Charging fee as per the provision in the Maharashtra Right to Information Act 2005 will be appropriate. He said while arguing at the time of the hearing that in the two departments, namely Building/Proposals, Construction and Factories of the Municipal Corporation of Greater Mumbai, the transport expenses were charged; in that respect there was no provision in the Act or Rules and as such, charging expenses that way meant violation of the provision in the Act. Similarly as the Municipal Corporation of Greater Mumbai is not a Competent Authority/Authority as per the Act section 28, it has no power to form its own rules.

As the Assistant Tax Assessor and Collector did not receive the circular issued by the Municipal Corporation of Greater Mumbai, General Administration Department on date 18.9.2010 before replying to the applicant, it was informed to pay the fee of Rs.230/- as per the previous system. The Public Information Officer and the Tax Assessor told before the Commission that, as the applicant did not first submit the appeal to the Appellate Officer, it was not possible to give clarification in that respect. 9. The Executive Engineer argued before the Commission in respect of the transport expenses that the layouts, information of which they were demanding, were not of regular size. Plans came in sizes bigger than that and those complete layouts, maps are kept bound in a large file and as a Xerox machine printing photo copies of that size was not available, to make available Xerox copies of such layouts, maps the said file had to be transported from the Corporation office to the bazaar where such Xerox machine was available by taxi and take the Xerox copies from that place and make them available. Since that taxi charges of going and coning back were not included, the Public Information Officer informed that the appellant should bear that expense. Hundreds of applications were received in the Construction Department, Tax Assessment Department, by every Public Information Officer and it was impossible for the Public Information Officer to incur the expenses on transport in respect of those applications. The administration of the Corporation had not made any provision for the same. As such, even though it was wrong on the part of the Public Information Officer to collect that expense from the applicants, there was no option with him. This was told by the Public Information Officer at the time of the hearing. After that it has been said in the clarification that Rs.2/- per page is payable if a photo copy of the in section extract is needed and if an attested copy is required a fee of Rs.50/- is payable. Similarly it is seen that the General Administration Department of the Municipal Corporation has issued circulars in respect of charging revised fee under the Right to Information Act 2005 on date 27.4.2009, 14.9.2010 and 14.9.2010.In that (1) it has been said that if fee has already been fixed in respect of specific documents, maps etc by the concerned department, then the fixed fee plus the postage charges will be collected. (2) If attestation is asked, if the concerned department has already fixed the rates for attestation, the fee should be charged accordingly. Otherwise no separate fee should be charged for attestation. The copy for information to the applicant should bear a stamp stating Given under the Right to Information Act 2005 and after mentioning the name of the Public Information Officer, designation, it should be signed and delivered. For that no separate fee should be charged. Instructions have been given to take action like that. Similarly the Deputy Law Officer of the Municipal Corporation has also given an opinion on date 29.11.2008 that no fee should be charged for attestation. The Commission has also given decisions on date 9.7.2010 and date 4.9.2010 in the context of charging the fee. However, even then the Executive Engineer has informed Shri Chetan Kothari on date 25.11.2010: 4

(b) Payment for certification of files 1) for IOD/CC/Approved letter Rs.25 per page 2) for approved plan Rs.60 per size plan Further, Xeroxing and conveyance to make Xeroxing will have to be borne by you. On date 18.10.2010 the Information Officer informed Shri Leslie Almeida that Inspection for the property for the year 2009-10 will be made available on payment of Rs.230/- (per property per year) as scheduled fee. Similarly it was informed to Shri Dilip Nevadia that the required information will be provided on payment of scheduled fee Rs.1146/-(i.e. Rs.230/- per property per year) for inspection extract and Rs.2/- for Xerox per copy and Rs.50/- for certification. From this no single policy of any kind and no co-ordination also is seen in the Municipal Corporation itself. As per the Right to Information Act 2005 section 7(1), the State Public Information Officer shall, as per section 6, after receiving the application for receipt of information, provide the information as early as possible/under any circumstances within 30 days from the day the request is made after payment of the prescribed fee. 2. . 3. There is a provision that if a decision of giving information, after payment of any additional fee indicating expenses for giving information, is taken, then in that case the State Public Information Officer shall send notice to the requesting person mentioning the details of additional fee indicating the expenses fixed by him for providing information with calculations as to on what basis the additional amount has been fixed as per the prescribed fee as per (c)Sub section (1) and therefore the Government has made the following rules for the fee. From the Maharashtra Right to Information Rules 2005Rule no.4; Fee for information-(1) as per section 7 sub section (1) fee payable to a public authority for providing information, after giving a proper receipt if it is in the form of cash, or in the form of demand draft of the face value or a cheque of a bank or in the form of money order, shall be charged at following rates. (A)(C) In such respect where the concerned Such fixed price plus postage charges department has already fixed the price of specific documents, maps etc. (KH) In such respect where the information is (one) For every page prepared or photo copied immediately available in the form of photo (paper of A4 or A size) Rs2/- plus postal copies or in the form of other (copies) charges or (two) Actual charge or cost plus postal charges for copies of large size paper

(B) There is no fee for inspecting records for the first hour and a fee of Rs.5/- per fifteen minutes (or a part thereof) beyond that. However the applicant shall personally come and collect the information. In that respect no postal expense will be charged. (2) As per section 7 sub section (5) fee payable to a public authority for providing information, after giving a proper receipt if it is in the form of cash, or in the form of demand draft of the face value or a cheque of a bank or in the form of money order, shall be charged at following rates. (C) Rupees fifty plus postal charges for every diskette or a floppy for providing information in the form of a diskette or a floppy: and (KH) For providing information in printed form, price fixed for such publication or rupees two for every Xeroxed page from the extracts from that publication plus postal charges: However if the applicant person collects the information personally, in that case no postal expenses can be charged. In the rules (A) (K) above if the concerned department has already fixed the price for specific documents, maps etc, that is the provision in that respect. The said rules have been passed on 11th October, 2005, which means that the charges have been decided/fixed before that. However it has not been brought to the notice of the Commission that such rules had been framed by the Municipal Corporation before October, 2005. In the decision of the State Information Commission of date 9.7.2010, orders have been given that 4. Rates of the Municipal Corporation will be applicable for attested copies. In that respect also, the Municipal Corporation has not submitted the tariff for attested copies before the Commission and therefore it is unreasonable that the applicants are informed that for attestation a fee of Rs.50/- will be charged. In the Right to Information Act 2005 section 2(A), the term Right to Information has been defined and there is a provision in it (one) To inspect any work, document, record (two) To collect extracts or certified copies of notes of documents or records (three) To collect certified samples of materials (four) To collect information through diskettes, floppies etc. However the Government of Maharashtra has not formed any rules for certified copy. Provision as follows has been made in the Evidence Act 1872 about certified copy. Certified copies of public documents Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees therefore, together with a certificate written at the foot of such certificate that it is true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by each officer with his name and his official title and 6

shall be sealed, whenever such officer is authorised by law to make use of seal and such copies so certified shall be called certified copies. Explanation Any officer who by the ordinary course of official duty is authorised to deliver such copies shall be deemed to have co custody of such documents within the meaning of this section. Because of the provision as above, the fees had been fixed by taking for granted the expenses required for preparing Certified Copies as manuscript copies or type written copies in all the Government/Semi Government offices and getting them checked word by word from the original copy and certifying them and the human time. However with the advent of photo machine/Xerox machine there is no need of the expenses of preparing manuscript copy or type written copy and checking them and the human time and as a photocopy is available within 5 seconds as good as the original copy, no expenses and time are required for preparing a copy and that is why the Government has made a provision that if copies are available in the form of photo copies or (copies) in any other form easily, in that case two rupees plus postal expenses for every page (paper of A-4 or A-3 size). If a photo copy is taken (assuming that the photo copy has been taken honestly), there is no need of checking the contents in it word wise and as the provision in the Evidence Act as above is not applicable, there is no need to charge earlier certified fee. Instead of that, it will be appropriate to authenticate it as made available under the Right to Information to prove the veracity. For that, it is not necessary to charge fee. If a stamp This copy has been given under the Right to Information Act 2005. with name of the department is gotten prepared and used for attesting every copy there will be no need to charge a fee. Or if there are copies on a large scale, it will be appropriate to mention in every certificate how many copies have been made available for each subject. In case of Inspection extract of the property for the year 2009-10 will be made available on payment of Rs.230/- (per property per year) as scheduled fee. also, it will be appropriate to take a fresh decision as per the Right to Information Act 2005 Rule 4(b) and charge accordingly. In the context of Further expenses toward Xeroxing and conveyance to make Xeroxing have to be borne by you, the Information Officer, while arguing, said that if there were maps or layouts in buildings and proposals, buildings and factories or in some other departments, their books were of large size and heavy. Similarly Xerox machines were not available in that office and if those documents were to be Xeroxed they were to be taken to that shop by a taxi where a Xerox machine of that size was available and got the Xerox copies made and the taxi charges were not being compensated to the Information Officer by the Municipal Corporation. As such how many times the Public Information Officer/employees would incur the expenditure themselves; that is why such expenditure is charged as expenses on taking Xerox copies. However there was no provision in the Act in that regard and that was why the Government of Maharashtra had not made any provision in the rules also. However if 7

responsible officers had remained present for hearing on that day, the Commission could have taken an appropriate decision in that respect. In section 6(1) of the ActThere is a provision of along with fee that will be prescribed for submitting the application for information. This means that court fee of Rs.10/- as per rule 3 of the Government of Maharashtra has been mentioned. It is as per that. There is a provision as per section 6(1) that information will be given after the payment of fee as will be prescribed within 30 days as per section 7(1) and accordingly fee has been prescribed in Maharashtra Right to Information Rules 2005, Rule -4. In section 7(3) of the ActThe one who mentions the details of additional fee showing the expenses fixed by him for providing information will send the information along with the calculations as to on what basis that additional amount as per the fee prescribed as per the sub section (1) has been fixed. It means that it is binding to inform by calculating the charges of the fee as per the details of total pages of specific documents, maps etc as per the fees prescribed in Rule 4(1) of the Government of Maharashtra and it is necessary to charge fee as per Rule 4(1)(b) for the inspection of records. In addition, in sub section (5), if the information is to be provided in electronic form, it is necessary to charge as per Rule 2. From this, it is illegal to charge additional fee by taking basis of any other type. As such, the Municipal Corporation cannot charge conveyance expense. The Municipal Corporation will have to charge expense/fee of the photo copies of the documents of information as per the Maharashtra Right to Information Rules 2005 only. All inclusive rules, by including if fee has already been fixed in respect of specific documents, maps etc by the concerned department, then the fixed fee plus the postage charges as well as sub section 4(1) A (KH) sub section (2), should be distributed to all the Public Information Officers and orders should be passed that all Information Officers should charge uniformly. The Public Information Officers do not have the power to charge separate fees in their powers. As per section 7(3) of the Act, it is binding to charge for fixed expenses and give statement in regard to on what basis the charge has been made. Therefore it is not proper that at present the Public Information Officers are informing to collect photo copies by paying Rs.2/- per page after inspecting or by paying expenses at the end of inspection. It will be appropriate to inform charges at Rs.2/- per page for fixed pages or if vague information has been asked for, to ask payment of expenses as estimated number of pages x Rs.2/- or if the pages finally are more or less, fee will be charged accordingly and then the photo copies will be taken and delivered. It should be informed that if the letter of payment of expenses is issued within 5/7 days after the receipt of the application, if the payment is made, the photo copies would be available. Since the period from the issue of the letter of statement of expenses up to payment of the expenses is deductible from the 30 days, it will 8

be possible to provide the photo copies within the period from the date of issue of the letter within 30 days. The Commissioner of the Municipal Corporation of Greater Mumbai should give orders to the concerned departments to issue rules or circular as above and issue orders to distribute the same to all the departments/sections of the Municipal Corporation and to charge accordingly. ORDER 1. The complaint/appeal is being approved. 2. The Commissioner of the Municipal Corporation of Greater Mumbai should co-ordinate the rules within 15 days from the receipt of this decision and issue orders to distribute to all Information Officers. 3. This should be sent to the Commissioner of the Municipal Corporation of Greater Mumbai by post separately. Mumbai Date: 31/3/2011. Sd/(Vilas Patil) State Chief Information Commissioner

Certified copy of the original decision of the Hon. Chief Information Commissioner, Mumbai Sd/Secretary/Section Officer State Information Commission, Mumbai Copy: 1) Forwarded to the Hon. Commissioner of the Municipal Corporation of Greater Mumbai, Head Quarters, Mumbai for information and appropriate action. 2) Select file. 3) Shri Chaure, Assistant.