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
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