There is no provision in the RTI Act which restrains the citizen’s right to use it if another route to access information has been offered, ruled the CIC. This is the 34th in a series of important judgements given by former Central Information Commissioner Shailesh Gandhi that can be used or quoted in an RTI application
The Central Information Commission (CIC) while issuing a show-cause notice to the Public Information Officer (PIO) for not providing information within 30 days, said, that it is a citizen’s right to use the most convenient and efficacious means available to him. While giving this important judgement, Shailesh Gandhi, former Central Information Commissioner said if the complainant has more than one way of seeking remedy he has the freedom to opt for the way which is more convenient for him.
“The existence of another method of accessing information cannot be a justification to deny the citizen his freedom to exercise his fundamental right codified under the Right to Information (RTI) Act. If Parliament wanted to restrict this right, it would have been stated expressly in the Act. Nobody else has the right to constrain or limit the rights of the Sovereign Citizen,” the CIC said in its order issued on 14 July 2009.
Delhi resident Dharmender Kumar Garg, on 28 May 2009, sought information from the Registrar of Companies (RoC) about Bloom Financial Services. He sought information through following queries...
1. Who are the directors of this company? Please provide their names, addresses, dates of appointment and copies of consent filed at RoC.
2. After incorporation of above company, how many times directors were changed? Please provide the details of documents files and copies of Form 32 filed at ROC.
3. Please provide the copies of Annual Returns filed at RoC since incorporation to 1998.
4. On what ground prosecution has been filed please provide the details of prosecution and persons included for prosecution. Please provide the copies of Order Sheets and related documents.
5. On what ground the name of Dharmender Kumar Garg has been included for prosecution?
6. Please provide the copies of Form no.5 and other documents filed for increase of capital?
7. How much fee was paid for increase of capital of the above company? Please provide the details of payment of fee at RoC.
8. Please provide the copies of Statutory Report and SLP filed at RoC.
There was no mention of any replies either from the PIO or the First Appellate Authority (FAA). Mr Garg then filed his second appeal before the Commission.
During a hearing on 1 July 2009, the PIO stated that the information is available under Section 610 of the Companies Act on payment of the prescribed fee. The PIO also relied on the department circular of the ministry of company affairs dated 24 January 2006, a decision of the Commission CIC/MA/A/2006/00016 dated 29 March 2006 and CIC/AT/A/2007/00112 dated 12 April 2007 (particularly paras 8, 12 and 13).
Mr Garg stated that, “...their (RoC) website was inspected on 6 May 2009 on payment of Rs50 but no information was available. Thereafter after getting the reply under RTI, I went to the Manesar office (Gurgaon) and inspected the file. It was mentioned in the file that past records had been weeded out. Only three four documents were available. I took the copies on payment of more than Rs1,200 even then the information could not be collected from the record. The files are totally incomplete.”
Mr Garg's contention was that prosecution has been launched against him in spite of the fact that the records are not up-to-date.
The PIO contented that since they offered inspection under Section 610 of the Companies Act on payment of the prescribed fee, they need not give information under the RTI Act.
The Commission then reserved its decision.
During another hearing on 14 July 2009, the PIO submitted his arguments for denying the information. He said, once the information is available in the public domain accessible to the citizens, the information is automatically excluded from purview of the RTI Act as held by Information Commissioner AN Tiwari in the case of CIC/AT/A/2007/00112.
“Section 610 of the Companies Act, 1956, provides that any person may inspect any document kept by ROC and obtain copy of any document from the ROC concerned on payment of prescribed fee. Therefore, the complainant need not seek information under RTI Act. This was held by Information Commissioner MM Ansari in the case of CIC/MA/A/2006/0016,” the PIO stated.
The Commission, while interpreting Section 2(j) of the RTI Act had said that “…unless an information is exclusively held and controlled by a public authority that information cannot be said to be an information accessible under the RTI Act. Inferentially it would mean that once a certain information is placed in the public domain accessible to the citizens either freely or on payment of a pre-determined price that information cannot be said to be ‘held’ or ‘under the control of the public authority’ and thus would cease to be an information accessible under the RTI Act…”
Mr Gandhi said he begged to differ from this decision. He said, even if the information is in public domain, an applicant can still ask a public authority to grant him the information if it is held by it. Even if some information is available at various places, it is the citizen'’s choice from where he wishes to access it.
“The Commission would like to clarify that Section 2 of the RTI Act is the definitional provision and therefore Section 2(j) is not an exemption clause under RTI Act. It merely defines the ‘right to information’. So the exemption from disclosing the information cannot be sought under Section 2(j),” Mr Gandhi said.
The Commission noted that the information asked for is very basic information and records related to this particular information are missing. “This information is very important for the complainant as he is facing a threat of arrest and needs the information to prove his innocence. Not granting such information clearly leads to violation of the fundamental right of the complainant as provided under Article 21 of the Constitution,” it observed.
The PIO's second argument was the information should be sought only under Section 610 of the Companies Act. In his order (CIC/MA/A/2006/0016) Commissioner Ansari while upholding FAA’s order stated that “There is already a provision for seeking information under Section 610 of The Companies Act, 1956. The complainant may accordingly approach the RoC as advised by the Appellate Authority to obtain the relevant information.”
Mr Gandhi said the PIO have not made any claim for exemption under the RTI Act to deny the information. “If a Public Authority has a procedure of disclosing certain information which can also be accessed by a citizen using the Right to Information Act, it is the citizen’s prerogative to decide which route he wishes to take,” the CIC said.
“It appears to the Commission that information is being denied to the complainant without any valid grounds and this delay is causing mental agony to the complainant who is living under the constant fear of arrest,” Mr Gandhi noted.
While allowing the appeal, he then directed the PIO to provide complete information before 25 July 2009.
The Commission also held the PIO responsible for not supplying the complete, required information within 30 days as required under sub-section (1) of Section 7 of the RTI Act. The CIC then issued a show-cause notice to the PIO.
CENTRAL INFORMATION COMMISSION
Decision No. CIC/SG/C/2009/000702/4128
Complaint No. CIC/SG/C/2009/000702
Complainant : Dharmender Kumar Garg,
New Delhi - 110003
Respondent : Raj Kumar Sah
Registrar of Companies & CAPIO
NCT Delhi and Haryana,
4th Floor, IFCI Tower,
Nehru Place, New Delhi - 110003
Even though the applicant wanted to withdraw her appeal after receiving a ration card, the CIC said in larger public interest it is necessary to provide info about the delay. This is the 33rd in a series of important judgements given by former Central Information Commissioner Shailesh Gandhi that can be used or quoted in an RTI application
The Central Information Commission (CIC) directed the Public Information Officer (PIO) to provide the information in larger public interest even though the applicant wanted to withdraw her complaint after receiving a ration card. While giving this important judgement, Shailesh Gandhi, former Central Information Commissioner said there is clearly a public interest in knowing the truth of why the card was not given.
“The PIO is directed to provide complete information as per the available record and send a copy to the appellant and the Commission before 25 November 2009,” the CIC said in its order issued on 10 November 2009.
Delhi resident Shrimati Virbati, on 16 March 2009, sought information about her ration card from the Food and Supplies Department of the Government of the National Capital Territory of Delhi (GNCTD). On the basis of her application for a ration card under the “below poverty line” (BPL) category, she sought information about...
1. Copy of the daily progress report on the application for a BPL card.
2. The name, designation, phone, address and time taken by each official to process the file regarding the BPL application.
3. The time taken to process the entire application as per the norms, rules and regulations.
4. Whether any officials are responsible for dereliction of duty and a copy of the duties of these officials.
5. Copy of rules which state the time duration to process the BPL application.
6. The reasons for the appellant being asked to fill up a form for the second time for a BPL card.
7. The name, designation and phone no of person responsible for the delay of the BPL card.
8. The action and the time that can be taken against the official responsible for the delay.
9. Till what date the ration will be given on the receipt.
10. The time duration when the appellant will get the BPL card.
The PIO in his reply on 9 April 2008 said:
1. The department does not make a Daily Progress Report.
2. The concerned officials have been transferred.
3. Action has been taken within the stipulated time.
4. Action has been taken as per procedure.
5. The time limit to issue APL card is 45 days but there is no time limit prescribed for BPL cards.
6. No order has been issued to fill the form a second time.
7. The appellant has not been issued BPL cards due to non-eligibility.
8. Same as above.
9. Ration can be availed till advance orders.
10. The appellant has not been issued a BPL card due to non-eligibility.
Not satisfied with the PIO’s reply, Virbati then filed her first appeal before the First Appellate Authority (FAA). The FAA, in an order on 29 May 2009, asked the PIO to give precise reasons to the appellant for the rejection of BPL cards within 30 days. Since the PIO failed to provide the information within 30 days, Virbati then approached the CIC with her second appeal.
During the hearing 10 November 2009, the PIO brought a letter from the appellant (Virbati) stating that she wishes to withdraw the appeal. “It is evident that a BPL card which should have been given two years back was denied without any stated reasons and the card was now been given because of the RTI application. There is clearly a public interest in knowing the truth of why this card was not given,” Mr Gandhi said in his order.
The Commission then directed the PIO to provide complete information as per the available record and send a copy to the appellant and the CIC before 25 November 2009.
CENTRAL INFORMATION COMMISSION
Decision No. CIC/SG/A/2009/002309/5447
Appeal No. CIC/SG/A/2009/002309
Appellant : Smt Virbati,
Respondent : Subodh Sharma
Public Information Officer & AC (NE)
Government of NCT of Delhi
O/o Assistant Commissioner, North Zone,
Food and Supplies Department, Bunker Complex,
Nand Nagari, Delhi- 110093
The PIO sent a complaint to the Registrar of Cooperative Societies, against which allegations of corruption of about Rs39 crore were made. The CIC then asked the PIO to provide letters and file notings of the process followed to take the decision. This is the 32nd in a series of important judgements given by former Central Information Commissioner Shailesh Gandhi that can be used or quoted in an RTI application
Questioning the rational of sending a complaint to the body against which the allegations are made, the Central Information Commission (CIC) directed the Public Information Officer (PIO) to provide the letters and notings which evidence the process of deciding to send this case to the body. While giving this important judgement, Shailesh Gandhi, former Central Information Commissioner said it appears a little bizarre and difficult to understand what purpose would be served by this.
“The Commission directs Amitabh Joshi, the PIO of the Director of Vigilance, to provide the letters and notings which evidence the process of deciding to send this case to the Registrar of Cooperative Societies (RCS),” the CIC said in its order issued on 13 July 2009.
Delhi resident Rajinder Kumar Kaushik, on 9 May 2008, filed a complaint about corruption and embezzlement to the tune of Rs39 crore alleging that officers of the Registrar of Cooperative Societies were involved with the Central Bureau of Investigation (CBI). He sought the status and progress report of the following documents:
i) Letter No.DLI/ACB/Complaints/CA-2865/06/8123 dated 08/06/20007 sent to the Director (Vigilance) w.e.f 13/11/2006 to till date
ii) The names and designations of the officials who were entrusted/assigned to take action or investigate.
iii) The names with the addresses of the persons who were summoned to appear or record their statement and/or examined in the process of investigation.
iv) As these officials (who were supposed to attend but not done so) found erring/guilty, does your good office (i.e. Director Vigilance) plan to take action against them?
v) If yes, in how much time & shape i.e. penalty/punishment/department enquiry or any other?
Since Mr Kaushik said he did not receive any reply from the PIO, he filed first appeal with the First Appellate Authority (FAA). The FAA in his order stated that the PIO had given the reply within the stipulated time, which is given below:
i) A complaint dated 13 November 2006 was received from RK Kaushik, in through CBI vide No DLI/Anti Corruption Branch/Complain/CA 2865/06/8123 dated 8 June 2007 the complaint was forwarded to RCS vide letter dated 11 July 2007 for taking necessary action at their end.
ii) The requisite information pertains to office of the RCS, Government of National Capital Territory of Delhi (GNCTD), in the view of above a copy of the RTI application is being transferred u/s 6(3) of RTI Act to the PIO RCS for furnishing information.
iii) As above.
iv) As above.
v) As above.
The FAA, later said, “The appellant sought names and details of the officials who were assigned investigation of the complaint made by the appellant. Since the complaint was forwarded by the Directorate of Vigilance to the officer of the RCS for necessary action, such information could be provided by the office of RCS. Hence, the PIO’s decision to transfer the application of the appellant was correct. He was in no position to supply information sought vide point Nos. 2, 3, 4 and 5 of the application. During the hearing the appellant did not inform if he received any reply from the PIO of RCS in respect of the transferred application.”
Not satisfied with the reply received from the FAA, Mr Kaushik then filed the second appeal before the CIC. During the hearing on 10 November 2008, the Commission noted that the appellant had filed a complaint about corruption and embezzlement to the tune of Rs39 crore alleging that officers of the Registrar of Cooperative Societies were involved with the CBI. The CBI sent the complaint to the Director of Vigilance.
“The information provided by the PIO to the appellant was that the complaint was in turn forwarded to the RCS by the Director of Vigilance. This is appearing a little bizarre since it is difficult to understand what purpose will be served by sending a complaint to the body against whom the allegations are made," Mr Gandhi, the CIC, said.
While allowing the appeal, the Commission then directed the PIO of the Director of Vigilance to provide the letters and notings which evidence the process of deciding to send this case to the RCS before 30 July 2009.
CENTRAL INFORMATION COMMISSION
Decision No. CIC/SG/A/2009/001370/4110
Appeal No. CIC/SG/A/2009/001370
Appellant : Rajinder Kumar Kaushik
Respondent : Amitabh Joshi
Public Information Officer
O/o the Director (Vigilance)
Delhi Secretariat, I. P. Estate,