Central Information Commission's Decisions

PART-III

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CENTRAL INFORMATION COMMISSION

LATEST IMPORTANT DECISIONS

File No.CIC/SM/A/2011/001687

Appellant : Bombay Stock Exchange Ltd (BSE)

Respondent : Security and Exchange Board of India (SEBI)

Date of Hearing : 26.8.2011                       Date of Decision : 10.10.2011

FACTS :

This matter was heard by a Full Bench of this Commission on 26.8.2011. The Bench consisted of the following :-

(i) Shri M.L. Sharma, Information Commissioner;

(ii) Ms Annapurna Dixit, Information Commissioner; &

(iii) Ms Sushma Singh, Information Commissioner.

2. The following were present :-

Bombay Stock Exchange :-

(i) Shri Shyam Divan, Sr Advocate;

(ii) Shri Pratap Venugopal, Advocate;

(iii) Ms Surekha Rama, Advocate;

(iv) Shri Dileep P;

(v) Shri Nirma Sharma

(vi) Shri Shailesh Ja

SEBI :- Ms Jeny John, DGM, SEBI

RTI applicant :-

(i) Shri Yogesh B Mehta

(ii) Shri Suresh Kabra

3. The matter, in short, is that vide RTI application dated 07.12.2010, Shri Yogesh B Mehta had sought information on 22 paras from SEBI requesting for copies of certain documents. The CPIO of SEBI had responded to it, para-wise, vide letter dated 5.1.2011. As regards paras 07, 08, 09 & 13 of the RTI application, the CPIO had observed as follows :-

“The information sought pertains to third party and hence in terms of section 11 of the RTI Act, 2005, third party procedure has been initiated. Upon receipt of reply from third party, our reply will be furnished to you.”

4. Vide subsequent letter dated 10.10.2011, the CPIO had informed the appellant that in view of objections filed by the 3rd party, the said information could not be disclosed to him Aggrieved with the decision of CPIO, Shri Mehta had filed the first appeal which was decided by the AA through a cryptic order dated 1.3.2011. The said order is reproduced below :-

“1. The appellant had filed application dated December 7, 2010 under the Right to Information Act, 2005 (RTI Act). The respondent, vide letters dated January 5, 2011 and January 10, 2011, January 14, 2011 and January 21, 2011, responded to the appellant. Aggrieved by the responses of the respondent, the appellant has filed this appeal dated February 11, 2011.

2. I have carefully examined the application, the responses, and the appeal and find that the matter can be decided on merit based on the material available on record.

3. The main argument in this appeal is that the respondent has not given the inspection as requested by the appellant. I find that the appellant had sought inspection of documents in his original application and thereafter vide letter dated January 14, 2011. If an applicant keeps demanding inspection of documents, it is better for the respondent to allow inspection of the documents after applying the provisions of section 10 of the RTI Act to avoid application after application and appeals alleging that not everything was disclosed, as

was alleged by the appellant in this case. I feel that all other points raised by the appellant in this appeal would cover if he is allowed inspection of documents. I, therefore, direct the respondent to invite the appellant for inspection of relevant documents, in accordance with the RTI Act, within 15 days from receipt of this order.”

A bare perusal of the above order would indicate that the AA had reversed the decision of CPIO in regard to these paras and allowed inspection of documents subject to the severability clause of section 10 of the RTI Act.

5. Aggrieved with the decision of the Appellate Authority, the BSE has filed the present appeal dated 18th May, 2011, before the Commission.

6. Shri Shyam Diwan, Sr Advocate appearing for the BSE, has assailed the order of the AA. Refering to para 01 of the said order, he submits that this para refers to letters dated 5.1.2011, 10.1.2011, 14.1.2011 and 21.1.2011 but the contents thereof have not been mentioned therein, making it difficult for the BSE to make any sense out of it. He also assails this order on the ground that no opportunity of hearing was given to BSE before passing the impugned order. According to him, this order also suffers from the vice of non-application of mind. It is also his submission that Shri Mehta has tried to get information generated by and relating to BSE through SEBI indirectly and unfairly.

7. In his brief submission, Shri Suresh Kabra appearing for Shri Yogesh Mehta (RTI applicant) would submit that SEBI is the regulator of the financial markets and is entitled to seek information from the entities such as BSE. He alleges that BSE has committed a fraud of about 90 crores and one of the Directors of BSE had to resign. He also alleges that BSE has shown fraudulent expenditure of Rs 60 crores on advertisements relating to Market Making Scheme (MMS) etc. In the circumstances, disclosure of requested information by SEBI would be in the larger public interest.

8. Ms Jeny John appearing for SEBI deflates the whole issue by submitting that the CPIO had sought objections from BSE and keeping in view the objections filed by BSE, no information objected to by BSE has been disclosed to Shri Mehta. She files a written representation dated 23.8.2011 before this Commission, duly signed by Dr Anil Kumar Sharma, CPIO, which is taken on record. She in particular, draws the Commission’s attention the para 07 of the representation in this regard which is extracted below :-

“7. Not being satisfied with the reply of Respondent 2, Respondent 1 preferred an appeal before SEBI Appellate Authority (Respondent 3) who passed an order dated March 1, 2011, directing Respondent 2 to provide an opportunity to Respondent 1 for inspection of documents after applying section 10 of RTI Act (Copy of order enclosed as Annexure R-3). The Respondent No 2, after invoking section 8 (1) (d) of RTI Act did not provide any of the documents objected by the appellant to Respondent No 1 for inspection. Subsequent to inspection copies of documents were furnished to Respondent 1 vide letter reference number CPIO/AKS/JR/AAO-1084-2011/12086 dated April 8, 2011 (Copy enclosed as Annexure R-4). In the said letter reference is made that those documents objected to by the appellant to disclose were not furnished to Respondent 1 citing exemption under the RTI Act.”

9. In the appeal memo filed before this Commission, the BSE has averred as follows :-

“The Respondent No 1 thereafter filed an Appeal – No 1094 of 2011 dated February 11, 2011 against the aforesaid responses of the Respondent No 2 before the Appellate Authority, SEBI i.e. the Respondent No 3 herein. The Appellate Authority passed its order dated March 01, 2011 stating that the Respondent No 1 had sought inspection of documents in his original application and if he keeps demanding inspection of documents, it is better for the CPIO, SEBI to allow inspection of the documents after applying the provisions of s.10 of the RTI Act to avoid application after application and appeals alleging that not everything was disclosed, as was alleged by the Respondent No 1. The Appellate Authority also held that all the points raised by the Respondent No 1 in his appeal would be covered if he is allowed inspection of documents. Therefore, the Respondent No 3 directed the Respondent No 2 to invite the Respondent No 1 for inspection of relevant documents, in accordance with the RTI Act, within 15 days from the receipt of this order. The appellant was neither issued with any notice of hearing nor heard in the matter nor served with a copy of the letters/orders of the Respondent No 2 or a copy of the impugned order.”

10. Needless to say, BSE would be an aggrieved party only if SEBI discloses any information which is detrimental or injurious to its interest and which has been objected to by it. From the representation of SEBI extracted above, it is lear that it has not disclosed any information which was objected to by BSE. SEBI has also not used the larger public interest doctrine in disclosing any information objected to by BSE.

11. A few day after the hearing, M/s K.J. John & Co, claiming to be the Advocates for appellant BSE, submitted a Short Note of Submissions which is taken on record. The contentions raised in the said Note may be summarised as follows :-

(i) that the CPIO did not comply with the provisions of section 11(3) of the RTI Act inasmuchas no written notice of his decision was given to the appellant;

(ii) that the AA neither issued any notice nor granted an opportunity of hearing to the appellant;

(iii) that the AA did not communicate his decision to the appellant;

(iv) that the order dated 1.3.2011 passed by the AA is indicative of non-application of mind on his part;

(v) that the contention of SEBI that the appeal has become infructuous on account of the fact that it has not furnished any documents objected to by appellant BSE is factually incorrect as explained in the additional affidavit filed on behalf of the appellant.

(vi) that the SEBI has not followed the procedure laid down in section 11 of the RTI Act. Para 08 of the note is extracted below :-

“8. Even assuming, without admitting that the Respondent No 2 has not disclosed the documents objected to by the appellant, the present appeal ought not and cannot be disposed of without :

(a) An undertaking of the Respondent No 2/Securities and Exchange Board of India that the documents objected to by the appellant would not be disclosed either by way of inspection or by way of photocopies to the Respondent No 1;

(b) Appropriate orders/directions by this Hon’ble Commissionwith respect to the non compliance/non observation of the requirements of the RTI Act, 2005 by the Respondent No 2 and the CPIO of the Securities and Exchange Board of India.”

12. An additional affidavit dated 29.8.2011 sworn by Shri Shantilal D. Jain, Manager Legal, BSE, has also been filed before this Commission which is taken on record. It is his allegation that despite SEBI’s averment before this Commission on 26.8.2011 that no documents objected to by BSE were disclosed to the information seeker, certain documents have been disclosed. Para 03 of his affidavit is extracted below :-

“3. I say that on 26.8.2011, the Appellant has learnt from an order dated 30.6.2011 passed by the Appellate Authority (Respondent No 2) and obtained from the website of the Securities and Exchange Board of India, that part of the documents which from subject matter of the letter dated 4.1.2011 addressed by the CPIO of the Respondent No 2 to the Appellant (Annexure – A/2 at page 17 of the Appeal) and dealt with in the reply of the Appellant dated 5.1.2011 have been disclosed to the Respondent No 1, which is borne out by the said order of the Appellate Authority (Respondent No 2) dated 30.6.2011, which inter alia reads thus :-

The appellant paid Rs 64/- and SEBI vide letter dated January 14, 2011 furnished the following documents to the appellant.

i. ………………………………..

ii. ………………………………..

iii. ………………………………..

iv. ………………………………..

v. ………………………………..

vi. ………………………………..

vii. ………………………………..

viii. ………………………………..

ix. ………………………………..

x. ………………………………..

xi BSE letter dated July 2, 2004 addressed to Chairman, SEBI enclosing the proposal to introduce market making scheme. It may be pertinent to state that the document at serial No xi referred to herein above is the very document at point 13 of the letter of the Respondent No 2 dated 4.1.2011 (Annexure – A/2 at page 17 of the appeal) and dealt with in the reply of the Appellant dated 5.1.2011

(Annexure – A/3 at page 18-19 of the Appeal)

A copy of the aforesaid order of the Appellate Authority (Respondent No 2) dated 30.6.2011 is annexed hereto and marked as Exhibit –A.”

13. Before dealing with the merits of the case, we would like to observe that appellant BSE did not file a copy of the RTI application filed by the information seeker Shri Yogesh Mehta alongwith its appeal as per standard practice. Nor did it file a copy of the order passed by the CPIO. On a query from the Commission, Sr Adv Diwan would submit that a copy of the CPIO’s order was not sent to the BSE.

14. Sr Adv Dewan has raised the following procedural issues in regard to the decisions of CPIO and AA :-

(i) whether the CPIO is required to send a copy of his order to the third party from whom consent had been sought u/s 11 (1) of the RTI Act;

(ii) whether the CPIO and FAA are required to give an opportunity of hearing to the third party; and

(iii) whether order dated 1.1.2011 passed by the FAA is self contained and self speaking and fulfills the requirements of the RTI Act.

15. Issue No (i), may be answered in unambiguous terms by referring to the express provisions of sub section (3) of section 11 which is reproduced below:-

“(3) Notwithstanding anything contained in section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under section 6, if the third party has been given an opportunity to make representation under sub-section (2), make a decision as to whether or not to disclose the information or record or part thereof and give in writing the notice of his decision to the third party.”

From the above provision, it is clear that CPIO is required to send a copy of his decision to the 3rd party.

16. Coming to issue No (ii), needless to say that rendering an opportunity of hearing to the parties is a fundamental principle of jurisprudence. It is conducive to fairness and transparency and accords with the principles of natural justice. An opportunity of hearing to the parties also brings greater clarity to the adjudicating authorities. No wonder, an opportunity of hearing is given to the rival parties under our procedural laws-both criminal and civil. However, adjudication of the matters under the RTI Act is to be seen from a

slightly different angle. Lakhs of cases are filed before the CPIOs and State Public Information Officers. The appeals arising therefrom filed before the Central Information Commission and the State Information Commissions run into hundreds of thousands. This Commission always gives an opportunity of hearing to the parties but this does not appear to be done by the CPIOs/SPIOs and FAAs as there are practical difficulties therein, partly arising out of the numbers involved and party due to the limited time frame in which the matters are required to be decided at the level of CPIOs & AAs.  In view of this, we restrain ourselves from directing the CPIOs and AAs to always give an opportunity of hearing to the parties as an inflexible rule and leave the matter to their discretion. All that the we would like to suggest is that an opportunity of hearing may be given to the parties, including the third party, if practicable, without forgetting that essence of RTI Act is adherence to the timelines prescribed in the Act.

17. Now, we come to Issue No (iii). It is note worthy that the RTI application filed by Shri Yogesh B Mehta runs into 22 paras. The CPIO dealt with the application para-wise in his order dated 5.1.2011 wherein information was denied to the appellant on paras 07, 08, 09 and 13 thereof. We would have expected the AA to deal with RTI application para-wise, in the context of the order of the CPIO and the appeal memo filed before him, particularly in respect of the paras regarding which information was denied. We, however, notice that the FAA has passed a bland order without dealing with the issues

threadbare.  We also would have expected the FAA to apply the provisions of section 10 to the information to be disclosed at his own level rather than leaving the entire matter to the discretion of the CPIO. In the premises, the order passed by the AA can not be said to be self contained and self speaking. We, however, are not inclined to remand the matter back to him as, in our opinion, no prejudice appears to have been caused to appellant BSE, as demonstrated hereinafter.

18. Now, we come to the most critical part of our inquiry i.e. the merits of the case. Para 08 of this order may be recalled wherein we had extracted para 07 of the affidavit filed by CPIO of SEBI wherein he has categorically averred that no information whatsoever has been disclosed which was objected to by appellant BSE. In the written material filed before this Commission extracted herein above, there is not even a whisper as to the information which was disclosed by the CPIO, disregarding the objections filed by the appellant herein. We may, however, mention that in para 03 of his affidavit extracted hereinabove, Shri Shanti Lal D. Jain, Manager Legal, BSE, has vaguely referred to disclosure of some information but in our understanding, he has not categorically alleged that information objected to by BSE was disclosed. In fact, we have carefully perused the order dated 30.6.2011 passed by the AA of SEBI and find that in para 08 thereof, he has categorically mentioned that 3rd party information is not to be disclosed. This para is extracted below for ready reference:-

“8. As regards the prayer at (7.A), I find from the chronology of events at Para 2 supra that the respondent has complied with the order of the AA and provided inspections and relevant information to the appellant except the third party information and the information which was offered to the appellant vide letter dated April 8, 2011 on payment of additional fee.”

19. From the above, it is clear that the apprehensions of appellant BSE in this regard are misplaced.

20. There is yet another issue that calls for our attention. In para 08 of the Note submitted on behalf of the appellant, we notice that the appellant wants to have an undertaking from SEBI to the effect that the documents objected to by appellant BSE would not be disclosed either by way of inspection or by way of photocopies. By implication, the appellant is admitting that no documents objected to by the appellant have been disclosed so far. We may, however, observe that the objections filed by the appellant herein u/s 11 (1) are not binding on the CPIO. These objections are only to be kept in view by the CPIO while taking a decision regarding disclosure of information. We make it clear that this Commission can not fetter the discretion of the CPIO regarding the disclosure of 3rd party information. Thus, the relief sought is misconceived. 

21. The findings of this Commission can be crystalised as follows:-

(i) The CPIOs are mandated to send a copies of their orders to the 3rd party u/s 11 (3), from whom objections are sought u/s 11(1).

(ii) It is not practical to lay down an inflexible rule that PIOs and AAs will always offer an opportunity of hearing to the parties, let alone to the 3rd party. They may do so as per their discretion, keeping in view the complexity of legal and factual issues involved, without forgetting that timelines are to be adhered to, being the essence of the Act.

(iii) The order passed by the AA is not self-contained and speaking and we advise him to pass speaking orders in future.

(iv) In view of the averment of Dr Anil Kumar, CPIO of SEBI, extracted above, the appeal has become infructuous and is dismissed.

Order reserved & pronounced today dated 10th October, 2011.

(Sushma Singh)                                                                  (Annapurna Dixit)

Information Commissioner                                                 Information Commissioner

(M.L. Sharma)

Information Commissioner.

_______

Full Bench Decision in Appeal No. CIC/SG/A/2010/001790

Appellant : Mr. Manish Bhatnagar,

Respondent : Mr. R. N. Mangla,

SPIO & Additional Director,

Department of Women & Child Development, GNCTD,

Relevant Facts emerging from the Appeal:

Information sought:

The Appellant filed a RTI application dated 14/12/2009 with the Respondent seeking the following information:

“1. Please provide me all the information and certified copies that how many number of rescueoperation for children have been done by your relevant department, Govt. of NCT of Delhi under The Child Labour (Prohibition and Regulation) Act 1986, Juvenile Justice (Care and Protection of Children) Act 2000 as well as Bonded Labour System (Abolition) Act 1976, from 1st January 2008 to till date? Please provide a comprehensive list of each and every rescue operation indicating place, date, time and any other relevant information attached with it?

2. Please provide me the complete list and certified copies of how many Govt. officials with there designation were present along with any NGO, people representatives etc during the rescue operations? Please provide a comprehensive list of officials with each and every rescue operations stated in Question no. 1?

3. Please provide a comprehensive list of all the children rescued under each and every rescue operations stated in Question no. 1?

4. Please provide a comprehensive list and certified copies and the affidavit/ identification relied upon of all the guardians/ parents who have been handed the security of all the rescued children?

5. Please provide me the monitoring details and certified copies of each and every rescued child stated in Question no. 1 and as submitted to any Hon’ble court, competent authority or any lawful authority?

6. Please provide me the details and certified copies of how many F.I.R were registered against the employers, placement agencies etc under The Child Labour (Prohibition and Regulation) Act Page 1 of 8 1986, Juvenile Justice (Care and Protection of Children) Act 2000 as well as Bonded Labour System (Abolition) Act 1976, from 1st January 2008 to till date as per details as stated in Question no. 1?

7. Please provide me the comprehensive details of the amount recovered from the Employers, Placement agencies etc in all the rescue operations stated in Question no. 1?

8. If there is no or partial recovery of the penalty from the employer in the rescue operations, please fix the responsibility and name of the Government official who is responsible for not following the directions of the Hon’ble Supreme Court?

9. Please provide me the receipt/ details of the grant/ amount deposited by the government of NCT of Delhi for the welfare of each and every rescued child as per stated in Question no. 1?

10. List of all the adult unemployed member of the family of the child labourer who has been provided employment in his place as per stated in question no. 1/

11. List of the entire rescued child who has been directed to receive education as stated in question no. 1?

12. If the information related to questions no. 1 to 11 is incomplete or there is no data, please name and fix the responsibility of the official?

13. If the matter relates to sec 8 and 9 of RTI Act 2005, and the department declines to provide the information or partially gives the information for the above mentioned queries, please provide the justification for the same as per the ruling of Hon’ble Delhi High Court WP (C) No. 3114/2007 in Bhagat Singh Vs Chief Information Commissioner.”

Reply of the Public Information Officer (PIO):

Vide letter dated 08/02/2010, the PIO replied that the RTI application was transferred from SPIO, Department of Labour. The said application was forwarded to all the four Child Welfare Committees as they are the competent authority for children in need of care and protection. Reply of the Child Welfare Committee, Lajpat Nagar and Nirmal Chaya Complex was attached for the Appellant’s perusal. The PIO further stated that details of children cannot be provided as per Section 21 of the Juvenile Justice (Care & Protection of Children) Act, 2000 (the “Juvenile Justice Act”).

Grounds for the First Appeal:

Dissatisfied with the information received from the PIO, the Appellant filed a First Appeal on 10/02/2010.

Order of the First Appellate Authority (FAA):

The FAA vide its order dated 26/02/2010, noted that only information on queries 4 and 11 of the RTI application pertained to the Respondent whereas the remaining queries were related to the Labour Department. The FAA upheld the denial of information under Section 21 of the Juvenile Justice Act. However, the Appellant was allowed to inspect the relevant records of the Child Welfare Committees in accordance with the RTI Act and the Juvenile Justice Act.

Grounds for Second Appeal:

Due to unfair disposal of the First Appeal, the Appellant filed a Second Appeal which was received by the Commission on 28/06/2010.

Relevant facts leading to Full Bench Hearing held on July 28, 2011:

The Second Appeal was heard by Shri. Shailesh Gandhi, Information Commissioner on 09/08/2010. At the said hearing, the Respondent refused to provide the names and addresses of juveniles on the basis of Section 21 of the Juvenile Justice Act. Moreover, he argued that the right to privacy of the rescued child may be violated if the information sought was provided and therefore, it was exempted under Section 8(1) (j) of the RTI Act. On the other hand, the Appellant argued that there was a larger public interest in disclosure of the information sought. It was brought to the Commission’s notice that the Respondent had offered an inspection of the relevant records but the Appellant did not avail of the same. The Information Commissioner was of the considered view that there were certain fundamental issues in the matter, which should be decided by a larger Bench of the Commission. He therefore requested the Chief Information Commissioner to constitute a bench to decide this matter. Thereafter, a Bench comprising of Information Commissioners Smt. Annapurna Dixit, Smt. Deepak Sandhu and Shri. Shailesh Gandhi was constituted by the Chief Information Commissioner to decide the present matter. By hearing notice dated 28/06/2011, the matter was scheduled to be heard by the Full Bench on 28/07/2011.

Relevant facts emerging during Full Bench Hearing held on July 28, 2011:

The following were present:

Appellant: Mr. Manish Bhatnagar;

Respondents: Mr. R. N. Mangla, SPIO & Additional Director.

At the hearing held before the Commission on 28/07/2011, both parties argued and presented their case vociferously. The Appellant admitted that he had received all the relevant information from the Labour Department. However, no information was received by him in relation to queries 4, 5 and 11 of the RTI application from the Respondent and he was seeking information only in relation to the same. The Appellant was thus seeking information about to ‘how many number of rescue operation for children have been done by your relevant department, Govt. of NCT of Delhi under The Child Labour (Prohibition and Regulation) Act 1986, Juvenile Justice (Care and Protection of Children) Act 2000 as well as Bonded Labour System (Abolition) Act 1976, from 1st January 2008 to till date?’ and with respect to this:  “4. Please provide a comprehensive list and certified copies and the affidavit/ identification relied upon of all the guardians/ parents who have been handed the security of all the rescued children? 5. Please provide me the monitoring details and certified copies of each and every rescued child stated in Question no. 1 and as submitted to any Hon’ble court, competent authority or any lawful authority? 11. List of the entire rescued child who has been directed to receive education as stated in question no. 1?’”

The Appellant primarily argued that there was a larger public interest in disclosing the names and details of children who had been rescued from the bonded labour system. The Appellant contended that poor verification and monitoring by state agencies made it difficult to ascertain whether such children were, in fact, under any parental/ guardian supervision and if they were receiving any education or other benefits under government schemes. He also contended that a number of children were being given away to dubious persons, and thus the rescued children were being pushed from the fire into the frying pan. Given the lack of enforcement of mechanisms put in place for this purpose by the government organisations, disclosure of such information would, in the very least, enable other independent bodies, NGOs to identify such children and rehabilitate them. The Respondent gave written submissions to the Commission and argued on the basis of the same. In short, the Respondent argued that the names, addresses of the children which may identify them should not be disclosed in the interest of the child’s privacy and to prevent any stigmatization in future. In this regard, he placed reliance on Section 21 of the Juvenile Justice Act and contended that the disclosure of information was prohibited under the said provision. The Respondent further argued that the information sought was exempted from disclosure under Section 8(1)(e) and 8(1)(j) of the RTI Act. He also relied on

certain decisions of the Supreme Court of India as well as the Commission in support of his contentions. The Respondent submitted that though the Appellant could inspect all the relevant records, he would not provide copies of the same as such information could be used to harm the child. The Commission reserved the order at the hearing held on 28/07/2011.

Full Bench Decision announced on 26 August 2011:

Based on the submissions of the Appellant and perusal of the RTI application, the Commission noted that the information sought by the Appellant is as follows:

1. List of affidavits/ identification along with certified copies relied upon, of all the guardians/ parents who have been handed the security of all the children rescued from bonded labour;

2. Monitoring details along with certified copies of every child rescued from bonded labour and as submitted to any Hon’ble court, competent authority or lawful authority; and

3. List of children rescued from bonded labour who are required to receive education. The RTI Act codifies the citizens’ fundamental right to information. It was enacted with the spirit of ensuring transparency and access to information giving citizens the right to information. As observed by the High Court of Delhi in CPIO, Supreme Court of India v. S.C. Agarwal W. P. (C) No. 188/2009, the RTI Act is premised on disclosure being the norm, and refusal, the exception. According to the RTI Act, information may be exempted from disclosure in accordance with Sections 8 and 9 only and no other exemptions can be claimed while rejecting a demand for disclosure. The High Court of Delhi in Bhagat Singh v. CIC W. P. (C) No. 3114/2007 observed that exemptions in the RTI should be strictly construed and held:

“Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right itself.”

It follows from the aforesaid that under the RTI Act, information can be exempted from disclosure in accordance with Sections 8 and 9 of the RTI Act only and no other exemptions can be claimed while rejecting a demand for disclosure of information.

In the instant case, the Respondent has relied on Section 21 of the Juvenile Justice Act and argued that names, addresses of children which may identify them should not be disclosed in the interest of the child’s privacy and to prevent any stigmatization in future. Section 21 of the Juvenile Justice Act provides as follows:

“21. Prohibition of publication of name, etc., of juvenile in conflict with law or child in need of care and protection involved in any proceeding under the Act.- (1) No report in any newspaper, magazine, news-sheet or visual media of any inquiry regarding a juvenile in conflict with law or a child in need of care and protection under this Act shall disclose the name, address or school or any other particulars calculated to lead to the identification of the juvenile or child nor shall any picture of any such juvenile or child be published: Provided that for reasons to be recorded in writing, the authority holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the interest of the juvenile or the child.

(2) Any person who contravenes the provisions of sub-section (1), shall be liable to a penalty which may extend to twenty-five thousand rupees.”

Given the above, the issue which arises before the Commission is whether there is any inconsistency as regards furnishing of information between Section 21 of the Juvenile Justice Act and the RTI Act and if so, whether Section 22 of the RTI Act would override the Juvenile Justice Act to that extent. Section 22 of the RTI Act provides as follows:

“22. Act to have overriding effect.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets, Act 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”

Section 22 of the RTI Act expressly provides that the provisions of the RTI Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than the RTI Act. Section 22 of the RTI Act, in no uncertain terms, lays down that as regards furnishing of information, the RTI Act shall override anything inconsistent contained in any other law. Section 21 of the Juvenile Justice Act prohibits the disclosure of name, address, school or any other particular that would lead to the identification of a juvenile in conflict with law or a child in need of care and protection under the Juvenile Justice Act in any report of a newspaper, magazine, news sheet or visual media. The provision further places an embargo on publication of a picture of any such child or juvenile. However the Section further goes on to clarify that there is no bar on disclosure of this class of information and that- provided that for reasons to be recorded in writing, the authority holding the enquiry may permit such disclosure, if in its opinion such disclosure is in the interest of the juvenile or the child. Therefore there is no inconsistency between the provisions of the RTI Act and Section 21 of the Juvenile Justice Act which delicately balances the rights of the child with the need for disclosure of information in respect of the child if such disclosure is in the interest of the juvenile or child. Undoubtedly, the RTI Act and the Juvenile Justice Act coexist and even while operating in distinct spheres with specific objectives, are not in conflict but blend harmoniously in their quest for transparency even in the personal sphere where such disclosure is in the “larger public interest” in respect of the former and “interests of the juvenile or the child” in respect of the latter. The PIO has contended that the information sought was exempted from disclosure under Sections 8(1)(e) and 8(1)(j) of the RTI Act. Section 8(1)(e) of the RTI Act provides as follows:

“8. (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,— …(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;”

Section 8(1)(e) of the RTI Act exempts from disclosure information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information. The Respondent has elucidated the concept of ‘fiduciary’ and argued that since the children in need of care are in the custody of the officer in- charge of the Approved Home, Child Welfare Committees as well as the Respondent- public authority, there is indeed a fiduciary relationship between the child in need of care and protection and the above authorities. The Respondent has cited certain single Bench decisions of the Commission interpreting the ambit of Section 8(1)(e) of the RTI Act viz. K. G. Bafana v. MHA CIC/AT/A/2007/00073 and Milap Choraria v. President’s Secretariat CIC/WB/A/2006/01003. Section 8(1)(j) of the RTI Act stipulates as follows:

“8. (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,—…

(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”

From a plain reading of Section 8(1)(j) of the RTI Act, it appears that divulgence of any personal information to any third party that has no relationship with any public activity or interest, or which would cause unwarranted invasion of the privacy of an individual is barred under Section 8(1)(j) of the RTI Act. In this regard, the Respondent appears to have placed reliance on the concept of ‘right to privacy’ as enunciated by the Supreme Court of India in various decisions such as Kharak Singh & Ors. v. State of Uttar Pradesh AIR 1963 SC 1295, Rajagopal v. State of Tamil Nadu 1994 (6) SCC 632, PUCL v. Union of India (1997) 1 SCC 301, Govind v. State of Madhya Pradesh AIR 1975 SC 1378 and Dinesh Buddha v State of Rajasthan (decided by the Supreme Court of India on 28/02/2006).

In the present matter, the Commission is of the considered view that even if the information sought was exempted under Sections 8 (1)(e) and (j) of the RTI Act,-as claimed by the respondent,- Section 8(2) of the RTI Act would mandate disclosure of the information. Section 8(2) of the RTI Act provides as

follows:

 “Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub- section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests.”

Section 8(2) of the RTI Act mandates that even where disclosure of information is protected by the exemptions under Section 8(1) of the RTI Act, if public interest in disclosure outweighs the harm to such protected interests, the information must be disclosed under the RTI Act. This sentiment has resonance in Section 21 of the Juvenile Justice Act which complements this epithet and also allows disclosure of information pertaining to juvenile or the child if such disclosure is in the interest of the juvenile or the child. The menace of child labour has been plaguing the Indian society for a considerable period of time. Though there are several legislations, government policies and schemes in place aimed at prohibition and regulation of child labour and rehabilitation of such children, the implementation of such legislations, policies and schemes continues to remain in shambles. Moreover, despite several court verdicts, child labour still persists in a monstrous manner in our country. The Supreme Court of India, while considering the issue of ‘child labour in India’, in M. C. Mehta v. State of Tamil Nadu & Ors. (decided on 10/12/1996) observed as follows:

“2. Our Constitution makers, wise and sagacious as they were, had known that India of their vision would not be a reality if the children of the country are not nurtured and educated. For this, their exploitation by different profit makers for their personal gain had to be first indicted. It is this need, which has found manifestation in Article 24, which is one of the two provisions in Part IV of our Constitution on the fundamental right against exploitation. The farmers were aware that this prohibition alone would not permit the child to contribute its mite to the nation building work unless it receives at least basic education. Article 45 was therefore inserted in our paramount parchment casting a duty on the state to endeavour to provide free and compulsory education to children. (It is known that his provision in Part V of our Constitution is, after the decision by a Constitution Bench of this Court in Unni Krishnan, 1993-1 SCC 645, has acquired the status of a fundamental right). Our Constitution contains some other provisions also to which we shall advert

later, desiring that a child must be given opportunity and facility to develop in a healthy manner.

3. Despite the above, the stark reality is that in our country like many others, children are exploited lot. Child labour is a big problem and has remained intractable, even after about 50 years of our having become independent, despite various legislative enactments, to which we shall refer in detail subsequently, prohibiting employment of a child in a number of occupations

and avocations.” (Emphasis added)

The reality alas has not changed significantly since 1996, when the Court made these observations. The manner in which state agencies are monitoring the rescue and rehabilitation of child labourers is extremely deplorable. Poor verification procedures render ineffective any efforts to rehabilitate the child. It is not possible to ascertain whether such children have been handed over to their parents/ guardians or whether any education or other benefits have been availed by them under government schemes. Even where a child is rescued from bonded labour, poverty and illiteracy compel parents/ guardians to send the child back to work subjecting him to exploitation, cruelty and despair. Despite the observations of the Supreme Court of India on unbridled existence of child labour in India even after 50 years of independence, the reality is that this issue continues to remain a challenge to India’s commitment to economic welfare and social justice till date. It certainly is reflective of the appalling manner in which government machinery has functioned in its goal to curb child labour.  Every child is an asset who will shape the future of the country, when nurtured properly. Given the lack of enforcement of government machinery in place for the purpose of prohibiting and regulating child labour and rehabilitating such children, disclosure of the information sought by the Appellant would, in the opinion of this Bench, at least enable other independent bodies, and NGOs to identify such children and rehabilitate them. Besides such disclosure could lead to a check on the undesirable practices which are known to be prevalent. Citizens monitoring of these, is likely to reduce malpractices and could lead to improvements beneficial to the children who should be freed from child labour and bonded labour. When balancing the probable harm in releasing the information sought, with the possible good that transparency could do to the interest of the suffering and exploited child, the Commission feels the good impact of Citizens being able to protect children is much greater than any probable harm. In view of the same, the Commission rules that the public interest involved in disclosure of the information is far more than any possible harm which may come to any children by revealing their names and details. The larger public interest is to ascertain whether the Nation’s policy of abolition of bonded labour and child labour with regard to rescue, repatriation and rehabilitation of child labourers is being effectively implemented. This Bench has not delved into the issue of applicability of Sections 8(1)(e) and 8(1)(j) of the RTI Act for the reasons given above. Hence there is no requirement to consider the Commission’s decisions in K. G.Bafana Case and Milap Choraria Case, as cited by the Respondent. Moreover, the rulings of the Supreme Court of India cited by the Respondent were before the advent of the RTI Act and as such do not appear to address the issues currently before this Bench.

The Appeal is allowed. The SPIO is directed to provide the following information to the Appellant before 26 September 2011:

1. List of affidavits/ identification along with certified copies relied upon, of all the guardians/parents who have been handed the security of all the children rescued from bonded labour;

2. Monitoring details along with certified copies of every child rescued from bonded labour and as submitted to any Hon’ble court, competent authority or lawful authority; and

3. List of children rescued from bonded labour who are required to receive education. Notice of this decision be given free of cost to the parties. Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act.

Smt. Annapurna Dixit                                             Smt. Deepak Sandhu        

Information Commissioner                                      Information Commissioner

Shri. Shailesh Gandhi

Information Commissioner    

File No.CIC/WB/A/2010/000267 & 00603SM

Right to Information Act 2005Under Section (19)

Date of hearing   24 August 2011             Date of decision 24 August 2011

Name of the Appellant : Shri Ajay Kumar Aggarwal,

Name of the Public Authority : CPIO, Central Bureau of Investigation,

The Appellant was present in person.

On behalf of the Respondent, the following were present:

(i) Shri Rajeev Sharma, DIG

(ii) Shri ARun Kumar Srivastav, DLA

(iii) Shri Keshav Mishra, SSP

(iv) Shri M.K. Bhat, Sr. SP

2. The CBI had filed a representation before the Commission to dismiss this appeal on the ground that the Central Government, by a notification, had included the CBI in the Second Schedule to the Right to Information Act and, therefore, the provisions of the Act would not apply to the CBI. In order to decide on this representation of the CBI, a hearing had been fixed today in which both the parties were present and made their submissions. The Respondents representing the CBI reiterated the same argument and pleaded

that the appeals should be filed since the provisions of the Right to Information Act were no longer applicable to the CBI. They further informed that certain orders passed by the CIC recently on the question of whether the notification by the Central Government under Section 24(1) of the Right to Information Act would apply only prospectively or not had been stayed by the Delhi High Court.

3. The Appellant submitted that the appeals should be heard and the information provided because his request for information predated the Government notification and, therefore, he had a right to get the information.

4. Be that as it may, whether the effect of the notification issued by the Central Government would apply even to a RTI request made prior to the date of notification by the Central Government is now before the Delhi High Court for decision. It is also a fact that the orders passed by one of the Benches of the CIC to the effect that the above Central Government notification would not apply to cases where the request for information has been made earlier has since been stayed by the Delhi High Court. In our opinion, it would be prudent to await the decision of the High Court in the matter before we continue on this appeal. Therefore, the appeal be kept pending till the bunch of Writ Petitions pending before the Delhi High Court on this issue are finally disposed off.

5. Copies of this order be given free of cost to the parties.

(Satyananda Mishra) Chief Information Commissioner.

(Annapurna Dixit)                                        (Deepak Sandhu)

Information Commissioner             Information Commissioner

_______

Appeal No.CIC/WB/A/2009/000266 dated 30.12.2008

Appellants : Z.U. Alvi

Public Authority : Ministry of Home Affairs, GOI

Date of Hearing : 19.01.2011                                 Date of Decision : 31.01.2011

FACTS:

1. Vide his RTI Application dated 26.07.2008, the Applicant sought the following information:

(a) The letter dated 14.08.1955 from the his highness Nawab Hamidullah Khan of Bhopal to the then Hon'ble Minister of Home Affairs Government of India, New Delhi Mr. G.B.Pant, along with its enclosures.

(b) The letter dated 15 June 1956 from His Highness Nawab Hamidullah Khan of Bhopal to the then Hon'ble Minister of Home Affairs Government of India along with its enclosures e.g deed of gift of “ Riaz Manzil” together with its compound, out houses, furniture and other fitting by H.H Nawab of Bhopal to his wife Her Highness Aftab Jahan Begum.

(c) Office copy of the letter No.431/56 HN dated 6/8th January from Shri A.D Dande I.A.S Secretary to the Home Minister to the Private Secretary, H.H Nawab of Bhopal acknowledging receipt by "Pantji" of "His Highness Aftab Jahan Bagum together with its enclosure..."

(d) Copy of the letter dated 30th April 1949 from Mr. V.P Menon Advisor to G.O.I Ministry of States G.O.I New Delhi to H.H. Nawab of Bhopal.

(e) Copy of Agreement dated 30th April 1949 executed between H.H. Nawab of Bhopal and Advisor/G.O.I New Delhi.

(f). List of Properties recognized as H.H (Nawab of Bhopal)'s personal properties that constituted Annexure to the Agreement dated 30th April 1949 and referred to in article V(2) of the said Agreement.

2. The CPIO vide his order dated 02.09.2008 denied the disclosure of the requested information citing the provisions of Section 8(1)(j) of the RTI Act, 2005 (hereinafter “the RTI Act”).

3. Not satisfied with the CPIO’s reply, the Applicant preferred first appeal dated 29.09.2008 before the First Appellate Authority (hereinafter “the FAA”) who adjudicated upon it and dismissed the appeal vide his order dated 19.11.2008 by upholding the order of the CPIO.

4. The Applicant has come before this commission in second appeal.

DECISION NOTICE:

5. I have carefully considered the submissions made by the Appellant as well as the Respondent. First of all the Commission would like to deal with the matter of the property of the Navab /Ex-ruler. It is apposite to mention the overall circumstances prevailing at the time when various princely states were in the process of acceding to the Dominion of India. One of such states was Bhopal who was under the rule of H.H. Nawab Hamidullah Khan until the execution of the merger agreement of April 30th, 1949 (hereinafter “the Bhopal Merger Agreement”) when Bhopal was merged to the Madhya Bharat state of India.

6. The eleven judges constitutional bench of the Hon’ble Apex Court speaking through Hidayatullah, C.J. has made observations in its decision of H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior vs. UOI (AIR 1971 SC 530) wherein special regard was given to the accession procedure of Bhopal. Following paragraphs are pertinent for the purpose of the case before us as it shall act as a beacon to guide the ship of contentions to the port of reasoning.

7. The relevant paragraphs are as follows :

“16. In the Bhopal Merger Agreement the Nawab was to receive Rs. 11,00,000/- as Privy Purse but each of his successors was to receive only Rs. 9,00,000/-. Article IV however provided that the income derived annually from the share of the Nawab in the original investment by Qudsia Begum in the Bhopal State Railway, which share was agreed to be Rs. 5,50,000, was to be treated as the personal income of the Nawab and to be paid by the Government of India to the Nawab and his successors. Article VII provided that the succession to the throne of Bhopal State would be governed by and regulated in accordance with the provisions of the Act known as "The succession to the Throne of Bhopal Act of 1947, and then in force in the Bhopal State. The Government of India further agreed that all rights and privileges secured by the Agreement to the Nawab would be continued to his successor.”

“74. I shall now consider Article 366(22). That is only a definition clause. It is intended to point out who is the Ruler of which State. It does so by saying that a Ruler is a person (a) who entered into a Covenant or Agreement before the

commencement of the Constitution and the payment of any sum free of tax had been guaranteed or assured by the Government of the Dominion of India as privy purse or (b) the successor of such Ruler. For purposes of (a) the same repetition is again avoided by the same legislative device of referring to Article 291 for brevity. This Article renders the certainty of assumption of Rulership to depend upon recognition and that recognition is worked out primarily under Covenants and Agreements. The dominant and immediate purpose and application of the Article depends upon Covenants and Agreements. I have earlier said that the President in recognising a Ruler or withdrawing his recognition does not act arbitrarily but in the light of Covenants and Agreements. All such instruments mention law and custom of the family except the Bhopal Agreement where a local statute has to be observed. The selection of a Ruler's successor thus has to be worked out under a Covenant or Agreement. The Article, therefore, has for its dominant purpose the selection of Rulers through the application of the Covenants and Agreements.”

“200. For instance, the Nawab of Bhopal executed a Merger agreement on the 30th April, 1949 whereby the administration of the State of Bhopal was to be taken over and carried on by the Government of India and for a period of five years next after the date of transfer the State was to be administered as a Chief Commissioner's Province. The personal rights and privileges and the privy purse were secured as in the case of other Rulers. With regard to succession to the throne of Bhopal State it was agreed that the same would be governed and regulated in accordance with the provisions of the Act known as the Succession to the Throne of Bhopal Act 1947. It may be mentioned that in the case of Bhopal Article III of the agreement provided that although the then Ruler was to get a sum of Rs. 11 lakhs per annum free of all taxes, each of his successors with effect from the date of succession was to be entitled to receive for his privy purse a sum of Rs. 9 lakhs per annum free of all taxes.”

“288. Under the Merger Agreement entered into between the Governor-General and the Nawab of Bhopal, the Nawab was entitled to receive the privy purse stipulated therein from the Government of India. It is not stated in the agreement that the same has to come out from the revenues of Bhopal State.”

“289. Under the Merger Agreement executed by the Nawab of Bhopal, the State of Bhopal was merged into the Dominion of India for a period of five years only.

Article IV of the Merger Agreement provided that the income derived annually from the share of the Nawab in the original investment by Qudsia Begum in the Bhopal State Railway, which share was agreed to be Rupees five lakhs and fifty five thousand, shall be treated as the personal income of the Nawab and shall he paid by the Government of India to the Nawab, and his successors. Article VII of the Agreement provided that the succession to the Throne of Bhopal State shall be governed by and regulated in accordance with the provisions of the Act known as 'the Succession to the Throne of Bhopal Act of 1947' which was in force in the State at the time of the agreement.”

8. The foregoing observations made by the Hon’ble Apex Court clearly reveal that the Hon’ble Court had evidence before it while it “specifically” pin-pointed out the gist of various Articles of the Bhopal Merger Agreement. This leaves us without even an iota of doubt to infer that the Apex Court had the material before it on the basis of which it made those observations notwithstanding the fact that the case before them was not specifically pertaining to the state of Bhopal. In our view, while respectfully noting the observations of the Apex Court, it leaves no doubt that the contents of Bhopal Merger Agreement and the enclosures thereto are public documents. Hence, in the spirit of the RTI Act, such documents should also be furnished to the Appellant.(Decision announced on 15.12.1970).

9. Another issue which we find pertinent to address before allowing the present appeal is one as raised under its contention by the Respondent. Respondent contends that the GOI has been taking a consistent view that the details of private properties of former rulers of princely states are not to be disclosed to the public being unpublished document. The Respondent has cited a document which is the “Reply to Unstarred Question No.655” dated November 15th, 1967 through which Shri Y.B. Chavan, Home Minister, UOI (as he was then) has said that the details of the property recognized as the private property of the ruler should not be a matter for public disclosure.

10. It may be noted that the observations made by the CIC in the matter of Basanti Lal Singhvi vs. Ministry of Home Affairs (Appeal No. CIC/WB/A/2007/00518) are apt to answer the contentions raised by the Respondent before us. In that case, the Home Ministry (Respondent as it was there) made a reference to the Speaker, Lok Sabha on 29.09.2008 seeking certain clarifications regarding the Unstarred Question No.655. The reply sent by Lok Sabha Secretariat was received on 06.01.2009 wherein it was stated as follows:

“As the USQ No.655 answered in the Lok Sabha on 15th November 1967pertained to properties of rulers of Indore and Gwalior, it cannot be contended that the specific information denied to Lok Sabha in reply to that question would be divulged if the request of Shri Basanti Lal Singhvi seeking information regarding property of erstwhile Maharaja of Udaipur were to be acceded to.”

The foregoing reply itself is the reason why the Respondent’s contentions fall flat on the ground because the reply in Lok Sabha was specific only to Indore and Gwalior unlike Bhopal in the appeal before us. There is no similarity in the two situations as Bhopal’s merger agreement is a separate and peculiar document. Hence, the Respondent’s contentions are devoid of any merit and thus, dismissed. Moreover, the list of properties are not exempted in view of the Section 8(1)(3) of the RTI Act.

11. Regarding the points (a), (b) and (c ) of the RTI application (that is the correspondence between ex-ruler / the Nawab and the M/o Home Affairs) the Commission, while keeping in view the facts and circumstances of the present case and also keeping in view the fact that the letters in question relate to property, is of the view that the information sought by the Appellant is not exempted under Section 8(1)(j) of the RTI Act. Moreover, the sought for information is 20 years old and exemption clause under Section 8(1)(j) of the RTI Act is not applicable in view of the Section 8(1)(3) of the RTI Act, which reads as follows:-

“Subject to the provisions of clauses (a), (c) and (i) of sub-section (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made under section 6 shall be provided to any person making a request under that section.”

12. Regarding the submission of the Respondents that requisite information pertains to very old records which can be traced only when there is a proper reference number/file number etc. we are of the opinion that the National Archives of India is the custodian of Records which in older than 30 years, under Public Records Act, 1998 but the records are held by the Ministry of Home Affairs. The Ministry of Home Affairs will procure the documents from the National Archives by giving them the proper reference number to identify the document numbered by them, if they do not have the custody of documents at present, and supply the same to the Applicant. In case, the efforts to trace the records and documents bear no fruit, the Ministry of Home Affairs will file an affidavit for the perusal of the Commission regarding the efforts made along with the instructions issued to trace the records.

13. Appeal is allowed.

(Satyananda Mishra)                                                         

Chief Information Commissioner                           

Sushma Singh                                                                     Shailesh Gandhi

Information Commissioner                                     InformationCommissioner

_______

File No.CIC/LS/A/2010/000685

Appellant : Smt Durgesh Kumari

Respondent : Income Tax Department

Date of Hearing : 12.8.2011                       Date of Decision : 26.8.2011

FACTS :

The matter, in short, is that when the appellant was working as Income Tax Officer in the Department, she was trapped by the CBI when allegedly accepting bribe. A criminal case was instituted against her and she was prosecuted therein. Vide RTI application dated 23.8.2009, she had sought the following information :-

“It is humbly requested to provide to the undersigned the copy of the entire sanction file bearing No CIT-Delhi-VII/Estt/Susp/DK/2006-07” prescribed fee in the proper format.

2. The CPIO had disposed of the matter vide order dated 10.9.2009 refusing to disclose any information in terms of section 8 (1) (h) of the RTI Act wherein he had also relied on this Commission’s decision in Appeal No 01/IC(A)/2006 (Ashok Kumar Agarwal Vs Department of Revenue). The relevant para of the order is extracted below :-

“Your attention is also invited to the decision of the Central Information Commission given in the case of Ashok Kumar Aggarwal Vs Department of Revenue, Ministry of Finance, in Appeal No 01/IC(A)/2006 wherein it is held that “there is due process of law under which the appellant may obtain the documents to defend himself in the relevant case through the trial court. At the stage when the court is duly seized of the matter and …………………….. the exemption from disclosure of information under section 8 (1) (h) of the Act has correctly been applied by the appellate authority of the Department of

Revenue.”

3. Dissatisfied with the decision of CPIO, the appellant had filed the first appeal which was decided by the AA vide order dated 22.12.2009. The AA had dismissed the appeal on the technical ground of the appeal having been filed after the expiry of prescribed time.

4. Thereupon, the appellant filed the present appeal before this Commission which came up for hearing before the Single Bench of Shri M.L. Sharma on 28.7.2010. In view of the legal issues raised by the appellant, the Single Bench decided to refer the matter to the Chief Information Commissioner for constituting a Full Bench in pursuance whereof the Chief Information Commissioner constituted the Full Bench consisting of the following :-

(i) Shri Satyananda Mishra, Chief Information Commissioner;

(ii) Shri M.L. Sharma, Information Commissioner; &

(iii) Shri Shailesh Gandhi, Information Commissioner.

5. The matter was heard by the Full Bench on 12.8.2011. The appellant was present along with her husband Shri Sudhir Kumar. The CBI which had been issued notice, being the necessary party, was represented by Shri Sumit Sharan, Dy Inspector General and Shri V.P. Sharma, Addl SP. The parties were heard.

6. The main contention of the appellant is that information can not be denied to her in a case in which she has been convicted and her appeal against conviction is presently pending in the High Court. According to her, the process of prosecution is over and the matter can not be said to be under prosecution any more in terms of section 8 (1) (h) of the RTI Act. She has also relied on the Single Bench decision of Shri Shailesh Gandhi, Information Commissioner in File No CIC/SG/A/2009/00015/2695 (Appeal No CIC/SG/A/2009/000015) (Prakash Chandra Vs Govt of NCT of Delhi) wherein the issue before the Bench was whether a copy of SP’s report prepared by CBI could be furnished to the appellant. The present appellant has drawn the Commission’s attention to the operative paras of the above decision which are reproduced below :-

“The Delhi High Court judgment quoted by the respondent was passed after the orders of the Commission quoted by respondent. Justice Ravindra Bhat’s order in WP(C) No. 3114/2007 has clearly stated, “13. Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right itself. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8(1)(h) and other such provisions would become the haven for dodging demands for information.

14. A rights based enactment is akin to a welfare measure, like the Act, should receive a liberal interpretation. The contextual background and history of the Act is such that the exemptions, outlined in Section 8, relieving the authorities from the obligation to provide information, constitute restrictions on the exercise of the rights provided by it. Therefore, such exemption provisions have to be construed in their terms; there is some authority supporting this view(See Nathi Devi V. Radha Devi Gupta 2005(2) SCC 201; B.R. Kapoor v. State of Tamil Nadu 2001 (7) SCC 231 and V. Tulsamma v. Sesha Reddy 1977(3) SCC 99 adopting---------------------------------- mandated class of restriction on the rights under the Act, which is unwarranted. This judgment has effectively overruled the earlier orders of the CIC on this matter. In the instant case the investigations are clearly over and therefore we would only have to see whether releasing the information would impede the process of prosecution of offenders. If the basis of prosecuting the accused is the truth as it exists on the records, it is not possible to understand how it could impede the process of prosecution of the offender. If there are any details in the SP’s report which would create any doubts in the mind of the judge who is conducting the trial, this must certainly be disclosed in the interests of justice. The Commission does not agree with the grounds given by the respondent to refuse giving the information, and cannot see how the truth could impede the prosecution. If anything justice demands that the truth must be placed before the Court. Therefore, the Commission does not find merit in the denial of the information under Section 8(1)(h). However we do see merit in the respondent’s grounds of section 8(1) (g). If some people have given information based on which the prosecution has been launched, revealing their identity could result in some harm to them, and revealing their identities would also reveal the source of information. The Commission directs that the PIO apply the severability clause of Section 10 and blank out the names of those who have provided the information in confidence.

The appeal is allowed.

The PIO will give the SP’s report and copy of the said letter dated 07/12/2000 and the note portion of the file where the said letter was dealt with in Directorate of Vigilance to the appellant before 5 May, 2009.”

The appellant forcefully pleads that the ratio of this decision squarely applies in her case and, therefore, orders of the CPIO and AA are liable to be set aside.

7. On the other hand, Shri Sumit Sharan, DIG, CBI, New Delhi, would plead that the completion of trial and conviction of the appellant therein does not mean that the process of prosecution is over in terms of section 8 (1) (h) of the RTI Act. According to him, pendency of the appeal filed before the High Court by the appellant is indicative of the fact that the process of ‘prosecution’ is still continuing and is not yet over and, therefore, requested information is barred from disclosure u/s 8 (1) (h) of the RTI Act. Shri Sharan has also placed reliance on the Delhi High Court judgement dated 10.11.2006 in WP(C) No 16712/2006 (Surinder Pal Singh Vs Union of India) in which it has been held that when a case is under prosecution, disclosure of any information in regard thereto may impede the prosecution of the offenders. He has drawn our attention to the operative para of the said order which is extracted below :-

“The Central Information Commission and the Appellate Authority and CPIO had held that the prosecution of the offender is pending before the Special Judge. If the prosecution of the offender is pending and not yet complete, the information which is sought by the petitioner may impede the prosecution of the offender cannot be faulted. The emphatic argument by the learned counsel for the petitioner that since the process of investigation is already over as the chargesheet has already been filed by the Central Bureau of Investigation is not correct. Exemption from disclosure of information can be claimed for any information which may impede the process of investigation of apprehension or prosecution of offenders. Since the chargesheet has been filed the process of investigation has been completed but the petitioner can not be contend that there is no apprehension with the respondent that the information sought by the petitioner may impede the prosecution of the offender. Whether the respondents have apprehension or not is to be decided by the respondents in the present facts and circumstances. The apprehension of the respondents is not without any basis. In any case the prosecution of the offender is pending. Since prosecution of the offender is pending and has not been completed, it can not be inferred that divulgence of information will not impede the prosecution of the offender. The respondents, therefore, are justified in claiming exemption under Section 8 (1) (h) from disclosure of information sought by the petitioner. The argument of the learned counsel for the petitioner that since the process of investigation has been completed as charge sheet has already been filed can not be accepted and is contrary to all the circumstances under which exemption can be claimed under Section 8 (1) (h) of Right to Information Act, 2005. The decision of decline the request of the petitioner for the information regarding sanction of his prosecution which may impede the prosecution of offender can not be faulted in the facts and circumstances. There is no error or illegality in the orders passed by the respondents seeking exemption under Section 8 (1) (h) of Right to Information Act, 2005 nor any procedural unreasnableness can be inferred.”

8. In the light of the above judgment, Shri Sharan would forcefully plead that disclosure of any information at this stage would impede the process of prosecution and such disclosure is barred u/s 8 (1) (h) of the RTI Act.

9. The matter in hand raises the following two issues :-

(i) Whether, in view of the pendency of the appeal in the High Court, the

matter can be said to be under prosecution in terms of section 8 (1) (h) of the RTI Act; and (ii) If it is held that the matter is still under prosecution, whether disclosure of requested information would impede the process of such prosecution, as contemplated u/s 8 (1) (h).

10 We will now take up these issues one by one. As regards issue No (i) above, it would be expedient to extract clause (h) of section 8 (1) which reads as follows :-

“(h) information which would impede the process of investigation or apprehension or prosecution of offenders”

A bare reading of the above clause would indicate that any information which tends to impede the process of investigation or apprehension or ‘prosecution of offenders’ is not to be disclosed under this Act.

11. Admittedly, the appellant has been tried and convicted by the trial court. Her appeal is pending before the High Court. In our opinion, the process of ‘prosecution’ is not yet over and it is still continuing, for, it is open to the court to affirm, modify or reverse the trial court judgement and thereupon any of the parties may further agitate the matter before the apex court. The process of prosecution, thus, is a continuing process which can be said to be over only when all judicial remedies have been fully exhausted. This is the situation in the present case.

12. It is common place that the word ‘prosecution’, as occurring in section 8 (1) (h), means and implies initiation and continuation of criminal proceedings in the competent court. Termination of proceedings in the trial court can not mean conclusion of proceedings when this very issue has been agitated before a higher judicial forum (High Court in the present case) either by the State or by the accused. In the premises, we hold that the case is still under ‘prosecution’ in terms of section 8 (1) (h).

13. As regards issue No (ii), the real question is whether disclosure of requested information would impede the process of ongoing prosecution. It may be apt to mention that a full fledged Code, namely, the Code of Criminal Procedure, 1973, has been enacted by the Parliament which contains extensive provisions for the conduct of investigation and prosecution. The Code provides for fair trial, in conformity with the principles of natural justice and has stood the test of time in its previous incarnations as also in the present one ever since the introduction of anglosaxon system of justice in the country. No trial can be conducted without offering fair opportunity to the accused to defend himself. The Code provides for supply of copies of documents to the accused relied upon by the prosecution. The accused has a right to be defended by a Counsel of his choice. He has also the right to the cross examine the witnesses produced against him. Besides, he can also produce witnesses in his defence. Section 313 of the code entitles him to explain or clarify the evidence proved against him at the trial. We may also add that, as per this Code, a copy of the sanction for prosecution is also required to be supplied to the appellant well before the commencement of trial. He also has the right to cross examine the authority who accorded the sanction for prosecution. Besides, the entire file, in which the matter of sanction for prosecution has been processed, is required to be produced before the Court for its perusal. Suffice it to say that the Code provides for fair trial in conformity with the principles of natural justice. Hence, in the premises, the request of the appellant for a copy of the file in which the sanction for prosecution was processed in difficult to appreciate. Hence, the contention of Shri Sumit Sharan that disclosure of requested information would impede the process of prosecution can not be taken lightly. Further more, as mentioned hereinabove, the Delhi High Court has held that once the matter is before the court, disclosure of any information in regard thereto would impede the process of prosecution.

14. In the premises, we hold that disclosure of requested information would impede the process of prosecution.

15. To sum up, we hold that the present matter is still under ‘prosecution’ and the disclosure of requested information would impede the process of prosecution in terms of section 8 (1) (h) of the RTI Act. Hence, in our opinion, the decisions of CPIO and AA do not call for any interference.

The appeal, therefore, is dismissed.

Order reserved and pronounced on 26th August, 2011.

(Satyananda Mishra)                                  (M.L. Sharma)

Chief Information Commissioner Information Commissioner

Dissenting Decision in File No. CIC/LS/A/2010/000685

I have perused the majority decision given in the present matter by my colleagues Mr. Satyananda Mishra, Chief Information Commissioner and Mr. M. L. Sharma, Information Commissioner. The facts arising in the present matter have been stated in the majority decision and I am therefore, not repeating the same. Based on the facts and submissions of the parties, there are two main issues which have arisen for determination before the Bench. These issues have been enumerated in the majority decision and are as follows:

(i) Whether, in view of the pendency of the appeal in the High Court, the matter can be said to be under prosecution in terms of Section 8(1)(h) of the RTI Act; and

(ii) If it is held that the matter is still under prosecution, whether disclosure of requested information would impede the process of such prosecution, as contemplated under Section 8(1)(h) of the RTI Act.

As regards issue (i), I am in agreement with the majority ruling and find no reason as such to elaborate on the same. However, as regards issue (ii), I, most respectfully, disagree with the findings of the majority. At the outset, it would be relevant to mention the overriding effect of the RTI Act as mandated by Section 22 (of the RTI Act), which is as follows:

“22. Act to have overriding effect.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets, Act 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”

Section 22 of the RTI Act expressly provides that the provisions of the RTI Act

shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than the RTI Act. Section 22 of the RTI Act, in no uncertain terms, lays down that as regards furnishing of information, the RTI Act shall override anything inconsistent contained in any other law. Therefore, as far as disclosure of information is concerned, if there is any provision in the Code of Criminal Procedure (the “Cr.P.C”) which is inconsistent with the provisions of the RTI Act, it would undoubtedly be overruled by the RTI Act.

The RTI Act makes no exception to this provision of overruling effect and therefore the question of non- disclosure of information in accordance with CrPC does not arise. The Parliament does not provide for a specific overriding clause in all laws but it has done so in the form of Section 22 in the RTI Act, which would be rendered completely redundant if provisions contained in previously enacted laws were to be relied on to claim exemption from disclosure of information. Insertion of a non- obstante clause in Section 22 of the RTI Act was a conscious choice of the Parliament to safeguard the citizens’ fundamental right to information It is a rule of statutory interpretation that a legislature does not introduce unnecessary clauses in legislations. Hence, it is imperative that Section 22 of the RTI Act is applied and not rendered ineffective. In this regard, it would be relevant to mention the observations of Sanjiv Khanna, J. of the High Court of Delhi in Union of India v. Central Information Commissioner & Anr. 2009 (165) DLT 559, which are as follows:

“Section 22 of the RTI Act gives supremacy to the said Act and stipulates that the provisions of the RTI Act will override notwithstanding anything to the contrary contained in the Official Secrets Act or any other enactment for the time being in force. This non- obstante clause has to be given full effect to, in compliance with the legislative intent. Whenever there is a conflict between the provisions of the RTI Act and another enactment already in force onthe date the RTI Act was enacted, the provisions of the RTI Act will prevail. It is a different matter in case RTI Act itself protects a third enactment, in which case there is no conflict. Once an applicant seeks information as defined in Section 2(f) of the RTI Act, the same cannot be denied to the information seeker except on any of the grounds mentioned in Section 8 and 9 of the RTI Act. The Public Information Officer or the appellate authorities cannot add and introduce new reasons or grounds for rejecting furnishing of information.” (Emphasis added)

Having laid down the above, I will now examine whether disclosure of the information sought by the Appellant would impede the process of prosecution as contemplated under Section 8(1)(h) of the RTI Act. At the hearing held before the Bench in the instant matter, I had asked Mr. Saran to explain how disclosure of information would impede the process of prosecution. Mr. Saran merely submitted that since prosecution was pending, disclosure of information would impede the process of prosecution. No further explanation was provided by Mr. Saran. Section 8(1)(h) of the RTI Act provides as follows:

“8. Exemption from disclosure of information.- (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-

…

(h) information which would impede the process of investigation or

apprehension or prosecution of offenders;”

From a plain reading of the above provision, it follows that Section 8(1)(h) of the RTI Act exempts disclosure of information which would impede the process of investigation or apprehension or prosecution of offenders. Merely because the process of investigation or apprehension or prosecution of offenders is continuing, the bar stipulated under Section 8(1)(h) of the RTI Act is not attracted; it must be clearly established by the PIO that disclosure of the

information would impede the process of investigation or apprehension or prosecution of offenders. If Parliament wanted to exempt all information relating to investigation or apprehension or prosecution, it would not have imposed the condition that disclosure should ‘impede’ the investigation or prosecution. In this regard, it would be relevant to note the observations of Ravindra Bhat, J. of the High Court of Delhi in Bhagat Singh v. CIC W.P. I No. 3114/2007 dated 03/12/2007:

“13. Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right itself. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8(1)(h) and other such provisions would become the haven for dodging demands for information.

14. A rights based enactment is akin to a welfare measure, like the Act, should receive a liberal interpretation. The contextual background and history of the Act is such that the exemptions, outlined in Section 8, relieving the authorities from the obligation to provide information, constitute restrictions on the exercise of the rights provided by it. Therefore, such exemption provisions have to be construed in their terms; there is some authority supporting this view (See Nathi Devi v. Radha Devi Gupta 2005 (2) SCC 201; B. R. Kapoor v. State of Tamil Nadu 2001 (7) SCC 231 and V. Tulasamma v. Sesha Reddy 1977 (3) SCC 99). Adopting a different approach would result in narrowing the

rights and approving a judicially mandated class of restriction on the rights under the Act, which is unwarranted.” (Emphasis added)

It is clear from the ruling of Ravindra Bhat, J. that the PIO, who is denying information under Section 8(1)(h) of the RTI Act, must show satisfactory reasons as to why disclosure of such information would impede the process of

investigation or apprehension or prosecution of offenders. These reasons must be relevant and the opinion of the PIO that by disclosing the information,

prosecution of offenders shall be impeded should be reasonable. The opinion of the PIO must be based on some material and cannot be a mere apprehension not supported by any evidence.

Mr. Saran has relied on the observations of the High Court of Delhi in Surinder Pal Singh v. Union of India & Ors. W. P. I No. 16712/2006 dated 10/11/2006 in support of his contention, the relevant portions of which have already been set out in the majority decision. I have perused the decision of the High Court of Delhi in the Surinder Pal Singh Case in totality, which pertains to the scope of Section 8(1)(h) of the RTI Act.

In the Surinder Pal Singh Case, information sought by the applicant was denied on the basis of Section 8(1)(h) of the RTI Act, which had been upheld by the Commission and was the subject matter of the writ before the High Court. The main contention of the applicant before the High Court was since the charge sheet had already been filed before the Special Judge, disclosure of information would not impede the process of investigation. The Court appears to have rejected the contention of the applicant on the basis that exemption from disclosure of information can be claimed for any information which may impede apprehension or prosecution of offenders; it is not restricted to merely investigation. The Court has observed that even though the process of investigation may have been completed on filing of charge sheet, there may still be an apprehension that such disclosure may impede the prosecution of the offender. The High Court also observed that this apprehension (of the respondents) was not without any basis and therefore ruled that the information sought was exempted from disclosure under Section 8(1)(h) of the RTI Act.

From my reading of both the decisions referred to above, it appears that whether there would be an impediment to investigation or prosecution would have to be decided by the Respondent on the facts and circumstances of the case and must be based on certain reasons. Both decisions lay down the scope of Section 8(1)(h) of the RTI Act and substantiate each other in interpreting Section 8(1)(h) of the RTI Act. Given the same, the Surinder Pal Singh Case does not lend any additional support to Mr. Saran’s contention. It is pertinent to mention that the majority has observed that “…the Delhi High Court has held that once the matter is before the court, disclosure of any information in regard thereto would impede the process of prosecution”. I humbly disagree with the said observations as the High Court in the Surinder Pal Singh Case did not at any point, lay down that once the matter is before the Court, disclosure of any information in regard thereto would impede the process of prosecution. The Court only held that merely because investigation was over, it could not be assumed that no impediment could be claimed. If the PIO could show impediment to the prosecution, exemption could still be claimed under Section 8 (1)(h) of the RTI Act.

Given the above case law rulings, in the present matter, information has been

denied simply on the claim that such disclosure would impede the prosecution of offender(s). However, Mr. Saran has failed to explain how such disclosure would actually be an impediment to the process of prosecution, as laid down above by the High Court of Delhi. The denial of information by the PIO appears to be a mere blanket statement not supported by any cogent evidence or material on the basis of which it can be clearly demonstrated that such disclosure would in fact attract the exemption contained in Section 8(1)(h) of the RTI Act. When denying a right to the citizen, it has to be established beyond doubt that prosecution or apprehension of an offender would be impeded. In other words, the burden placed under Section 19(5) of the RTI Act has not been discharged while establishing that the denial of information under Section 8(1)(h) of the RTI Act was justified.

At this juncture, I would like to mention that the Supreme Court of India in a three Judge Bench decision in Director of Education v. Pushpendra Kumar & Ors. (Decided on 13/05/1998) has held that “an exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision”. The principle that an exception to the main provision must be strictly construed was also applied by a five Judge Bench in Nathi Devi v. Radha Devi Gupta 2005 (2) SCC 201. The right to information is a fundamental right of the citizens, which is reflected in Section 3 of the RTI Act which provides that subject to the provisions of the RTI Act, all citizens shall have the right to information. However, this information can be denied on the basis of Sections 8 and 9 of the RTI Act only. Since Section 8 and 9 of the RTI Act are in the nature of an exception, they cannot be interpreted in a manner which would subsume the main provision i.e. Section 3. In line with the Supreme Court rulings laid down above, Sections 8 and 9 of the RTI Act must be construed in a manner which would not render the right conferred to citizens under the RTI Act as completely redundant, or constrict it in a manner not stipulated in the Act.

On the basis of the reasons enumerated above, I reject Mr. Saran’s contention that the information sought was exempted under Section 8(1)(h) of the RTI Act and find the arguments put forward for the denial of information to be untenable. Hence I cannot agree with the majority decision, and it is my considered opinion that the information sought by the Appellant is not covered by the exemption of Section 8(1)(h) of the RTI Act and hence should be disclosed.

Order reserved and announced on September 6, 2011.

(Shailesh Gandhi)

Information Commissioner

_______

Decision No. 6010/IC(A)/2010

F. No.CIC/WB/C/2009/000424

Dated, the 15th October, 2010

The matter was initially heard on 26.3.2010 by a Full Bench of the Commission headed by Prof M.M. Ansari, IC. The proceedings of the day are extracted below :-

“Appellant : Shanmuga Patro

Respondent : Rajiv Gandhi Foundation

Date of Hearing : 26.3.2010                      

FACTS :

Vide RTI application dated 3.2.2009, the appellant had requested for information on the following 03 paras regarding Rajiv Gandhi Foundation:-

“(i) Copy of the Constitution of the Foundation;

(ii) Copy of the bye-laws and rules and regulation of the Foundation as updated till date; &

(iii) Copy of the documents showing organizational structure of the Foundation.”

2. It appears that he was not provided any information and, hence, he has filed the present complaint before the Commission.

3. The matter is heard on 26.3.2010 by a Division Bench consisting of the following :-

(i) Prof. M.M. Ansari, Information Commissioner;

(ii) Shri Satyananda Misra, Information Commissioner; &

(iii) Shri M.L. Sharma, Information Commissioner.

4. The appellant is present. The Rajiv Gandhi (Foundation hereinafter) is represented by Ms Preeti Sahai, Head Strategic Initiatives, Shri Ajay Sharma, Manager (Admn); Advocate Joy Basu & Advocate Animesh Sinha. The matter is briefly heard. It is the submission of Advocate Basu that Foundation is not a ‘Public Authority’ and, therefore, is not liable to disclose any information to the appellant. The legal ground advanced by him in this regard is that if the preamble of the RTI Act, 2005, is read with section 2 (h) and further co-related with Article 12 of the Constitution, it would emerge that the Foundation is not a ‘Public Authority’. He has also drawn the Commission’s attention to sub clause (d) of section 2 (h) of the RTI Act and submits that the Foundation has not been set up by a notification or order made by any Government and, therefore, is not a Public Authority. He, however, reserves the right to make detailed submissions before the Commission in the next hearing.

5. On a query raised by the Commission, Advocate Basu, however, would concede that the Foundation has received certain funds from the Government from time to time but the proportion of the funds is insignificant vis-à-vis its overall budget and from this angle it does not fall in the mischief of the expression ‘substantially financed’ as occurring in section 2 (h) of the RTI Act. According to him, the complaint is misconceived and deserves to be dismissed.

6. On the other hand, the appellant would submit that the Foundation has been receiving funds from the Central Government and, therefore, it may be deemed to be a ‘Public Authority’ in terms of the section 2 (h) of the RTI Act. It is also his submission that, concededly, the foundation is

engaged in a large scale public activity and by virtue of such activity, it assumes the character of a Public Authority. The appellant has also presented the following materials before the Commission which are taken on record :-

(i) ‘RGF in pursuit of Rajiv Gandhi’s Vision and Ideals’

(source : http://planningcommission.nic.in)

(ii) ‘Rajiv Gandhi Jal Mission (RGJM)’

(source : http://planningcommission.nic.in)

(iii) ‘Rajiv Gandhi Foundation - Sonia Vs Government’

(source : Out Look India)

7. Advocate Basu is hereby directed to furnish the annual audited Accounts of the Foundation right from its inception till 2008-09 along with a tabular statement indicating year-wise overall income of the Foundation and the component thereof received from the Central Government/State Government or the instrumentalities thereof. The above information may be submitted before the Commission in 06 weeks time.

8. The matter is adjourned to 14.5.2010 at 1030 hrs.” The matter is further heard on 29.9.2010. The following are present:-

Appellant Shri Shanmuga Patro, Advocate

Respondent (1) Shri Joy Basu, Advocate

(2) Ms Preeti Sahai, C/o Rajeev Gandhi Foundation

(3) Shri Ajay Sharma, C/o Rajeev Gandhi Foundation

3. As directed by the Commission, Advocate Joy Basu has furnished the Annual Audited Account of the Foundation right from its inception along with a

tabular statement indicating year-wise overall income of the Foundation and the component thereof received from the Central Government/State Government or the instrumentalities thereof. He submits the requisite information which is taken on record.

4. Shri Patro also submits a very detailed representation dated 31.8.2010 which is taken on record.

5. Opening the arguments on behalf of the Foundation, Adv Joy Basu submits that the foundation is not a ‘public authority’ in terms of section 2 (h) of the RTI Act. His first submission is that the Foundation has not been constituted by or under the constitution; or by any other law made by Parliament or State Legislature. It is the culmination of the endeavor of a few friends and admirers of Shri Rajiv Gandhi to organize themselves and taking appropriate steps for the establishment of the Foundation to promote his ideals. His second submission is that the Foundation is not owned or controlled by the Central Government or State Government. His further submission is that the Foundation is an NGO which is not substantially financed, directly or indirectly, by the Central Government or any State Government, inasmuch as the average percentage of Government funds to the total overall projects expenditure of the Foundation is less than 4%. The rest of the funds are generated from private entities. Consequently, the financial assistance from the Government is so minimal that the Foundation does not assume the character of public authority in terms of section 2(h) of the RTI Act.

6. His further submissions are as follows :-

RGF is a completely independent and a stand-alone body and has been constituted in the form of a Trust under the Indian Trusts Act, 1882.

RGF is a non-profit organization, which is not associated with any aspects of commercial activity for commercial gain. It was an entity to commemorate, through voluntary action, late Shri Rajiv Gandhi’s vision for modern India.

A joint reading of the Constitution of India and the RTI Act (its section 2(h)), leads to the conclusion that RGF is neither a State nor an instrumentality of the State, or other public authority or other authority.

The Preamble to the RTI Act specifically refers to Governments and their instrumentalities, an expression which does not include voluntary organizations. The context in which the expression has been used in the RTI Act, can be understood only with reference to Article-12 of the Constitution of India and the interpretations by Supreme Court in a series of cases.

A body can become the instrumentality of the State under Article-12 “if it is financially, functionally and administratively dominated by or under the all pervasive control of the Government. On the other hand, where the control of the Government is merely regulatory, whether under any statute or otherwise,

it would not serve to make the body ‘State’.” (Sreekant Vs. Vasant Rao. Supreme Court cases 682).

RGF is a non-profit organization; it is not owned by Government or any of its instrumentalities. Government cannot either appoint or remove trustees of RGF, not to talk of deep and pervasive control. No State instrumentality has any control over the Foundation.

None of the qualifying attributes spelt-out in Section 2(h) applies to the RGF. If it were so, all private firms and companies, which receive subsidies, for example, fertilizer subsidies, would be public authorities. The space for voluntary or private action will just cease to exist.

Similarly, companies in the private sector with substantial shareholding by public entities or State instrumentalities would have been made public authorities through interpretation by Courts. This has never happened. Any other interpretation of the law would make it entirely unworkable.

7. Adv Basu has relied on certain decisions of this Commission to buttress his point. He relies on CIC decision in Gp Capt M Kapoor Vs DGMI dated 29.1.2007, wherein it was held that the Army Welfare Housing Organisation (AWHO) is not a ‘public authority’ u/s 2 (h) of the RTI Act essentially on the ground that the Society is an autonomous body and the fact that it received some grants from the Government sporadically would not lend it the attributes of a public authority.

8. He also relied on this Commission’s decision dated 5.1.2008 in Mohd Safdar Imam Vs Indian Institute of Welfare wherein it was held that the Institute was not a public authority mainly because it received not more than 20% grants in aid from the Government.

9. As noted above, the appellant has filed a detailed representation running

into 421 pages to establish that RGF is a public authority. His principal submissions may be crystalised as follows :-

(i) The RGF was set up on an appeal made by then Vice President of India (late Dr Shankar Dayal Sharma) primarily, to promote literacy and application of science and technology in the service of the poor and deprived sections of the society. Subsequently, the formation of RGF was declared by the Govt of India through budget speech by the then Finance Minister. The Govt of India had also created a corpus for running the affairs of RGF.

(ii) RGF is functioning from a sprawling premises measuring 9,319 sq yards and a palatial building has been constructed thereon. This piece of land is situated in the heart of city. The land was initially allotted by the Govt at a normal price to the Jawahar Bhawan Trust on perpetual lease dated 22.9.1998. Later, based on the request made by the said Trust, the Ministry of Urban Development vide letter dated 28.12.1995 accepted the usage of the said land and building by RGF for absolutely free. The rental value of this real estate in the open market would be huge. (No amount has, however, been specified).

(iii) The RGF was registered on 21.6.1991 with MHA under Foreign Contributions (Regulation) Act, 1996 w.e.f. 2.8.1991. This enables RGF to receive foreign contributions. Besides, RGF is registered u/s 12A of the Income Tax Act, 1961. This registration enables RGF not to pay tax for its income.

(iv) RGF is also registered u/s 80G of the Income Tax Act with consequential

benefits.

(v) RGF is also entitled to avail exemption from payment of Customs Duty and Central Excise Duty in terms of Government notifications dated 23.7.1996 and 01.3.1997

(vi) During the period FY 1999-2000 and FY 2007-08 RGF had total income of

8,49,02,607/- out of which grants were of Rs 31,06,859/-; donations of Rs 11,03,000/-; project related income of Rs 1,51,98,740/-; foreign contribution of Rs 1,67,58,255/- and interest accrual of Rs 4,87,35,753/-. These components constitute 3.65%; 1.29%; 17.90%, 19.73% and 57.40% of the total income respectively.

(vii) Referring to the particulars of the trustees of RGF, the appellant has mentioned in his representation that ‘whos’s who’ of India is represented in RG, viz. Chairperson, National Advisory Council; Chairperson, Planning Commission; Home Minister and Finance Minister and the like. Besides, there has been no change in the Board of Trustees, Governing Council and Research Advisory Council of RGF in last 10 years.

(viii) RGF has been acting as a designated authority and an extended arm of the Government to advise on issues of public importance. The appellant has cited several instances wherein RGF has collaborated with the Government and its instrumentalities in matters like Empowerment of the Panchayati Raj Institutions, Right to Education, Public Health Systems and Processes and Disabled Related Policies etc.

(ix). The Govt of India has a permitted All India Service officers to join RGF on

deputation basis from time to time.

10 Based on the above submissions, the appellant has tried to pursuade the

Commission to declare RGF to be is a ‘public authority’ in terms of section 2 (h) of the RTI Act.

The response of the respondents on the above points is as follows :-

It is their contention that the issuing of an appeal by then Vice-President of India, Dr.Shankar Dayal Sharma in 1991 for generous donations to RGF and the mention of the RGF in the then Finance Minister’s budget speech on 24.07.1991 could not be factors leading to any decision regarding whether RGF is a public authority. The context in which these two events occurred was the death of Shri Rajiv Gandhi on 21.05.1991 and the emotional response the country made to his martyrdom. The appeal by Dr.Shankar Dayal Sharma was in his personal capacity. He never associated himself with the RGF as Vice-President. The decision of the Government to provide

Rs.100 crores to RGF over five years made in 1991 was politely turned down by RGF. Such incidental factors could not be considered for declaring RGF a public authority.

They have negated appellant’s point that RGF has received substantial funding from the Government. They have particularly rejected his contention that all funds received by RGF belong to “we the people of India”. They have reiterated their point that the direct grant of the Government did not exceed 4% of the total receipts of RGF.

Respondents have laboriously pointed out that appellant is entirely wrong in claiming that any land-grant was made to RGF. RGF was housed in the premises standing on the land granted to Jawahar Bhawan Trust (JBT), who allowed RGF to function from a part of its premises. As tenant, RGF contributes and shares the common expenditure on maintenance and service,

etc. of the premises and it also shares with JBT the property tax paid. The JBT was created through a mandate and Deed of Declaration of Trust given by Article XIX (i) of the Constitution of the Indian National Congress and was entirely independent of the Government. The perpetual lease dated 22.09.1988 was granted by the Land & Development Office to JBT and not to the RGF.

RGF registering itself under the Foreign Contributions (Regulation) Act (FCRA) has nothing to do with its designation as public authority. Such registration is necessary for obtaining funds from abroad.

The income tax relief provided to RGF could not be construed as indirect funding by the Government. Hundreds of other such entities are granted these concessions to encourage them to carry out public-related activities. Even private individuals are its beneficiaries. Do they all become public authorities?

Respondents have described as untenable the appellant’s argument that mere association of the Prime Minister of India, NAC Chairperson, Planning Commission’s Deputy Chairman, Home Minister and Finance Ministers with RGF alters its decidedly private character to make it a public authority. They are at pains to point out that these personalities were associated with RGF in their personal capacity and drew no remuneration from RGF. None holds any ex-officio position in RGF. They were associated with the Foundation because of their affection for late Shri Rajiv Gandhi and as a token of their tribute to his martyrdom.

As regards deputationists from the Government working in RGF, respondents have pointed out that the RGF accepted personnel from diverse sources, including Government, and paid all salaries and wages. Mere deputation of officers by the Government to the RGF does not alter its character from private to public authority. Further, such deputation is permissible under the AIS rules.

On the similarity between Jawaharlal Nehru Memorial Fund (JNMF) and RGF, respondents have stated that this is nothing more than a warped reasoning. The JNMF is situated in Teen Murti House, which is a Government property. It receives substantial funding from various Ministries, unlike RGF ― which receives only a miniscule grant. 50% of the total expenditure of JNMF is met by the Government. JNMF, in its constitution, functioning and location is entirely different from RGF.

They have rebutted appellant’s arguments that RGF works in close liaison with the Government. It is argued that even assuming that it is correct, for the

sake of argument, it could not be interpreted to mean that privately created entities can not occupy independent space in addressing the socio-economic issues of the country, when they act in unison with the Government.

They have also rebutted appellant’s argument that mere fact of the RGF being engaged in public activities and in promoting public welfare, would be enough reason for it to be declared a public authority. No entity in this country shall at then remain private or non-governmental, if this criteria were to be applied.

DECISION & REASONS

10.   Public Authority has been defined in clause (h) of section 2 of the RTI Act. Clause (h) is extracted below :-

“(h) public authority" means any authority or body or institution of self- government established or constituted—

(a) by or under the Constitution;

(b) by any other law made by Parliament;

(c) by any other law made by State Legislature;

(d) by notification issued or order made by the appropriate

Government, and includes any—

(i) body owned, controlled or substantially financed;

(ii) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;”

It is plain that RGF does not fall in sub clauses (a), (b) & (c) of clause (h). As per sub clause (d), to qualify for Public Authority, an entity should be owned, controlled or substantially financed, directly or indirectly, by the Government. It is nobody’s case that RGF is owned by the Government. Nor is it controlled by the Government in as much as its control vests in a Board of Trustees which is an elected body. Next question comes whether it is ‘substantially financed’ by the Government. As noted herein above, the contribution of the Government is less than 4% of the total average income of RGF since its inception. It, therefore, cannot be said to be ‘substantially financed’ by the Government.

11.    In this context, it may be apt to refer to the Hon’ble Punjab and Haryana High Court judgment dated 25.2.2008 in DAV College Trust and Management Society & Ors. –Vs- Director of Public Institutions & Ors. The operative para of

the judgment is extracted below :-

“A perusal of the definition of ‘public authority’ shows that ‘public authority’ would mean any authority or body or institution established or constituted apart from other things by the notification issued by an order made by the appropriate Government. It is to include even any body owned, controlled or substantially financed or non-Government Organisation substantially financed directly or indirectly by the funds provided by the appropriate Government. It is undisputed that the petitioners are receiving substantially grant-in-aid from the Chandigarh Administration. Once a body is substantially financed by the Government, the functions of such body partake the character of ‘public authority’. The definition of expression public authority would include any organisation/body owned, controlled or substantially financed directly or indirectly by funds provided by the Government or even the non-government organization which is substantially financed. The petitioner has claimed that they are getting only 45% grant-in-aid after admitting that initially the grant-in-aid paid to them was to the extent of 95% which was given initially allowing the petitioner to build up its own infrastructure and reducing the grant-in-aid later would not result into an argument that no substantial grant-in-aid is received and, therefore, it could not be regarded as ‘public authority’. Therefore, we do not find any substance in the stance taken by the petitioner that it is not a ‘public authority’ ”

It is noteworthy that 45% grant in aid was held to be appropriate to declare DAV Institutions as Public Authority. Viewed in the light of this judgment, RGF

cannot be said to be Public Authority by any stretch of imagination as the Government contribution is less than 4%, as noted herein above.

12.     Another point that has been canvassed by the appellant is that the RGF is functioning from a sprawling premises which belongs to the Central Government and this amounts to indirect funding of RGF. As per submission of the respondents, the property in-question was allotted to Jawahar Bhawan Trust (JBT) by the Ministry of Urban Development in 1988. It is JBT which allowed RGF to function from a part of its premises. It is also respondent’s claim that RGF contributes and shares the common expenditure on maintenance and services etc. of the premises with JBT. The perpetual lease dated 22.9.1998 was granted by Land & Development Office to JBT and not to RGF. In other words, it is the respondent’s claim that the property in-question has not been directly placed at the disposal of RGF by the Central Government and the RGF is functioning from the present premises pursuant to an understanding reached between JBT and RGF.

13.   There is yet another way of looking at this issue. The property in-question was leased out to JBT by the Central Government. This property is being used by RGF with some kind of approval of the Government. For argument’s sake, even if it is assumed that the Government has placed this property at the disposal of RGF, the question is whether its rental value at market rate is such that it would render RGF into a Public Authority. No submissions have been made about the current rental value of the property in-question by the parties. However, going by the considerable annual income/receipts of RGF, even if market rental value is attributed to the property in-question, in our opinion, it would not render RGF into Public Authority. We, therefore, are not inclined to accept the submission of the appellant that RGF is a Public Authority by virtue of its functioning from the premises in-question.

14.    As regards the question of deputation of All India Services officers to RGF, needless to say, this is being done as per All India Service Rules. Only one AIS officer is presently working in RGF and his salary etc. are being paid by RGF and not by the Central or State Government. Hence, nothing much turns on this point.

15.   The appellant has also relied on the decisions of this Commission’s decision in Sanskriti School case and Commonwealth Games Organising Committee etc. We have perused the relevant decisions and find that the ratio of the above decisions does not apply to the present case in as much as contribution of the Central Government in the aforesaid two institutions was very high as compared to the miniscule contribution of the Central Government in RGF.

       In view of the above discussion, we come to the conclusion that RGF is not a Public Authority in terms of section 2(h) of the RTI Act.

16. However, before parting with the matter, we would like to mention that RGF has been constituted by the admirers of late Shri Rajiv Gandhi to promote his ideals and for socio-economic and cultural advancement of people. The nature of its activities is such that it directly impacts the people. Hence, we would suggest to the Board of Trustees of RGF to consider and continue to voluntarily placing maximum information regarding the activities of RGF on its website viz. constitution of RGF, its Bye-Laws, Rules and Regulations, its Annual Income and Expenditure, the nature of works undertaken/completed by it and such like information. It may be clarified that this would, however, be without any prejudice to our conclusion that RGF is not a Public Authority under the RTI Act.

Decision reserved and pronounced today dated 15th October, 2010.

 ( Satyananda Misra )                                  ( M.L. Sharma )

Information Commissioner                                     Information Commissioner

 ( Prof. M.M. Ansari )

Information Commissioner

_______

Appeal No. CIC/SG/A/2010/903041

Right to Information Act 2005 – Section 19

Appellant - Ms. Sarah Cyriac

Respondent - Delhi University

Interim decision announced : 15.4.2010

Facts:

By an application of 21.7.09 Ms. Sarah Cyriac of Panchsheel Park, New Delhi applied to the CPIO Assistant Registrar (Estates), Delhi University seeking the following information:

“Please provide me with certified photocopies of my evaluated answer sheets pertaining to the following 6 papers.

Paper No.

(i) Economy, State and Society                                              8

(ii) Development Theory and Experience                               9

(iii) Public Economics                                                             12

(iv) Introductory Econometrics                                              14

(v) Topics in Microeconomics                                                 15

(vi) International Trade                                                           17

To this Ms. Sarah Cyriac received a response dated 20/24.8.09 informing her as follows:

“There is a decision of the full bench of the Hon’ble Information Commission in the case of Shri Rakesh Kumar Singh & other v/s Shri Harish Chander, Lok Sabha Secretariat & others dated 23.4.2007 (Complaint. No CIC/WB/C/2006/00223, appeal nos. CIC/WB/A/2006/00469 & 00394; appeal nos. CIC/OK/A/2006/00266/00058/00066/00315) which says that citizen cannot seek disclosure of the evaluated answer sheets under the RTI Act, 2005.’

Upon this, Ms. Sarah Cyriac moved an appeal on 11.9.09 before Registrar Shri S. K. Jaipuria, upon which Shri S. K. Jaipuria in his order of 16.10.09 decided as follows:

“Since there is no actionable point in the appeal and there are no other points on which the information has been sought, hearing in the matter may not be a prudent option. Therefore, the decision of the PIO is upheld.”

Upon this, Ms. Cyriac submitted a representation dated 23.10.09 before the Registrar, University of Delhi clarifying as follows:

“Revaluation is not an option as there is every possibility that it is not my answer scripts which are being re-evaluated.’

In response through an order of 23.10.09, the Registrar Delhi University wrote to Ms. Soma Cyriac, mother of appellant Ms. Sarah Cyriac, as follows:

“During the decision in the first appeal stage, hearing was offered to the appellant in case she was not satisfied with the decision.

After hearing both the parties, it appears that there is no ground which needs to be addressed on the basis of the original application under the Right to Information Act, 2005. Therefore, there is no further actionable point in the appeal and the decision of the PIO is upheld.

If the appellant, being a student of the University has any problem in the result, she may contact the office of the Dean (Examinations) on telephone no. 011-27667934 for other efficacious procedure available with the appellant.”

Subsequently, Ms. Sarah Cyriac submitted a further representation to the Registrar dated 28.10.09 protesting both the response received and alleged discourtesy shown to her mother, after which she moved her second appeal before this Commission.

This matter was heard by the Commission in Single Bench on 14.1.10. The Appellant had written six papers for the 3^rd Year BA Economics (Hons.). She received 50% marks in five of the six papers. In the sixth paper she was marked absent. Once she produced the examination hall attendance sheet to prove that she had taken the sixth paper, she was informed within 3 days that she had 50% marks. University of Delhi follows a policy of secrecy by which a unique number is assigned to each student and this unique number is given to each of the answer scripts of the student. This process is followed so that the examiner does not know the name of the student whose answer sheet he is evaluating. If what the appellant is stating is true i.e. her answer sheet has been confused with some other student – then re-evaluating the same answer sheet would serve no purpose. During the hearing the PIO of Delhi University and the Dy. Registrar (Results) were present. They submitted that as 28 lakh students are appearing for exams, there is a possibility for error. Consequently, this case was referred to a Full Bench, which is constituted in the Commission comprising of Chief Information Commissioner Shri Wajahat Habibullah & Information Commissioners Ms. Annapurna Dixit and Sh. Shailesh Gandhi, which heard the matter on 13.4.2010. The following are present:

Appellant

Ms. Sarah Cyriac

Ms. Soma Cyriac

Respondents

Mr. Rajesh Kumar Sinha, Registrar, Delhi University

Mr. J. Chanda, Asstt. Registrar / CPIO

Mr. Deepak Vats, Dy. Registrar

Mr. R. P. Singh, Dy. Registrar (Results)

Mr. Morice Tete, Asstt. Registrar

Mr. M. A. Sikandar, Dy. Registrar

Mr. Anil Arora, Asstt. Registrar.

Shri Rajesh Kumar Sinha, Registrar submitted that if appellant Ms. Cyriac has misgivings regarding the authenticity of results, she has two options – either (1) rechecking or (2) revaluation. She has sought neither. He further submitted that whenever doubts of this nature had been raised on the results announced by the Delhi University, such papers have been submitted in the past in several cases before the High Court and Supreme Court in sealed cover. In not a single case have the doubts expressed been substantiated, even after perusal before the highest Court of justice. He, therefore, presented the impugned papers in sealed cover in case this Commission wished to examine these.

On the other hand, appellant Ms. Sarah Cyriac submitted that simply inspection by the Information Commissioners, who are not experts in this regard, will not serve her purpose. She has grave doubts regarding the basic scrutiny exercised by the examiner in her case since she has always earned the appreciation of teachers and intellectuals on her mastery of subjects in which she has received paltry marks and, therefore, wishes to see the documents credited to her for herself. Appellant Ms Cyriac has also submitted a written petition in which she has pleaded as follows:

“1. I have been offered admission to post graduate courses in a number of foreign universities based on GRE scores, previous academic records, work, experience and extracurricular-all of which are in shocking contract to my final year university scores.

2. I am now in the process of applying for scholarships to fund my studies. Though I have excellent letters of recommendation from distinguished academicians, my undergraduate scores in the final year are so impossibly low that chances of winning a scholarship appear bleak.

3. I request the honourable full bench of CIC to ensure that the marks I have secured, that are rightfully due to me be disclosed and awarded as quickly as possible.

4. This is possible if and only if, photocopies of my answer scripts are issued to me as per my original RTI application and the submissions made by me in the presence of Hon’ble Information Commissioner Shailesh Gandhi.

5. The University of Delhi has itself realized that innumerable errors occur during the allotment of fictitious roll numbers and that the present evaluation system encouraged unaccountability, it is, therefore, proposing to revamp the system w.e.f. the 2010- 2011 Semester Examinations.

(Please see point 5 of ECISS deliberations enclosed herewith).

6. I have wasted one precious academic year while I waited for my appeal to run its course. May I therefore, appeal to the Commission to expedite the process of ‘righting a wrong’ and ensuring basic natural justice for me?”

INTERIM DECISION

The stand of respondents that this issue stands settled in a decision of this Commission is correct. It will not be possible for a Bench of this Commission to now rule on the general issue. This Commission has moreover no powers of review unless it is in exercise of general inherent power to review its decision which has erred in fact or in law. However, the applicability of the provisions which led to the decision in complaint No. CIC/WB/C2006/00223; Appeal Nos. CIC/WB/A/2006/00469 & 00394; Appeal Nos. CIC/OK/A/2006/00266/00058/00066/00315, Rakesh Kumar Singh & Ors vs. Lok Sabha Secretariat & Ors can be examined in light of the present application in the case of Ms. Sarah Cyriac, given the fact that a larger Bench has already ruled only of the applicability in regard to public examinations conducted by institutions established by the Constitution like UPSC or institutions established by any enactment by the Parliament or Rules made there under like CBSE, Staff Selection Commission, Universities., etc, the function of which is mainly to conduct examinations and which have an established system as fool-proof as that can be. In Para 40 of the same decision the Commission has also ruled that the disclosure of the answer sheets by certain institutions “shall be the general rule but each case may have to be examined individually to see as to whether disclosure of evaluated answer sheets would render the system unworkable in practice”. This will require deliberation by a larger Bench. The Chief Information Commissioner will, therefore, in exercise of his authority u/s 12(4) constitute a larger Full Bench for this purpose, the date of hearing of which will be duly intimated to the parties.

Announced in the hearing. Notice of this decision be given free of cost to the parties.

(Ms Annapurna Dixit)                                     (Shailesh Gandhi)

Information Commissioner                             Information Commissioner

(Wajahat Habibullah)

Chief Information Commissioner

_______

Appeal No.CIC//MA/A/2008/01117

Decision No.5607/IC(A)/2010

Name of the Appellants: Ms. Bindu Khanna

Respondent Public Authorities: Directorate of Education

Government of NCT of Delhi

Third Party: Pinnacle School

Date of Hearing: 30.06.2010                      Date of Decision: 14.07.2010

FACTS OF THE CASE:

1. On the grounds of non-compliance of the order dated 23.4.2008 passed by the first Appellate Authority (FAA) of the respondent, the appellant submitted her 2nd appeal before the Commission through which she pleaded for compliance of the FAA order. The Commission upheld the decision of FAA and directed the respondent to provide the information as per the direction of the FAA. Subsequently, the third party, the custodian of information, challenged the decision of the Commission before the High Court of Delhi, which has made the following observations vide its order dated 15.09.2009:

“It is an admitted case of the parties that the petitioner M/s Pinnacle School who is required to furnish information pursuant to application filed by Ms. Bindu Khanna, the respondent No.4 with the Public Information Officer of Director of Education, Govt. of NCT of Delhi, was not issued notice and heard before the impugned order dated 15th September, 2009 was passed. The impugned order passed by the Information Commissioner dated 15th September, 2008 is required to be set aside for failure to comply with Section 19(4) of the Right to Information Act, 2005. The said provision ensures compliance with principles of natural justice and requires that a third party shall be given a reasonable opportunity of being heard if an appeal is preferred before the Central Information Commission. It may be noted here that the petitioner before the Public Information Officer had relied upon Section 8(1)(j) of the Act and had submitted that information cannot be furnished.

In these circumstances, the impugned order dated 15^th September, 2008 passed by the Information Commissioner is set aside and the matter is remanded back for fresh adjudication in accordance with law. The parties will appear before the Central Information Commission on 7th October, 2009 when a date for hearing will be given.

The writ petition is accordingly disposed of.”

2. In pursuance of the above Court Order, the case was heard on 26.3.2010 and 30.6.2010. During the hearing on 30.6.2010, the following were present:

Appellant: Ms. Bindu Khanna along with Shri Manoj Khanna

Respondents:

1) Ms. Indira Rani Singh, Link Officer, DDE, Dte. of Education

2) Ms. Satinder Kaur, RD, Dte. of Educaiton

3) Ms. Renu Sharma, EO, Dte. of Education

4) Shri H.K. Maan, ADE, Dte. of Education

5) Shri K.K. Batra, Manager of School (3rd party)

6) Shri Ashok Chabra, Advocate for the School (3rd party)

3. The fact of the matter is that the Appellant Ms. Bindu Khanna, a teacher in a private school, namely, Pinnacle School, wanted certain information relating to her employment, mainly her service records, leave and other statutory allowances, working hours, medical facilities, pension & gratuity benefits, etc. She made various oral as well as written requests to the school. When she did not get the said information, she approached Directorate of Education by filing an RTI application dated 11.2.2008.

4. The Public Information Officer (PIO), Directorate of Education informed the applicant that Pinnacle School had declined to provide information under Section 8(1)(j) of the Right to Information Act, 2005 (hereinafter referred as the `RTI Act’). The Appellate Authority of the Directorate, by an order dated 23.4.2008 directed its PIO, in presence of the Manager of School Shri K.K. Batra, to procure information from the school and provide the same to the applicant. When the Appellate Authority’s order was not complied within the stipulated period due to non-cooperation of school authorities, the appellant had to file 2nd appeal before this Commission on 30.6.2008.

5. The 2nd appeal of the applicant was disposed of by the Commission on 15th September, 2008 whereby the Commission directed the Directorate to secure compliance of the order of its Appellate Authority dated 23.4.2008.

6. Pinnacle School which is a third party in these proceedings approached the Hon’ble Delhi High Court by filing Writ Petition No.6956/2008 and contended before the court that the RTI Act was not applicable to the school, inter-alia, for the following reasons:

i) Pinnacle school is a private school;

ii) Delhi School Education Act and Rules framed thereunder do not provide for disclosure of information.

7. The School informed the High Court that the Commission passed the impugned order without hearing them and without complying with the principles of natural justice. The Hon’ble High Court (Coram: Hon’ble Mr. Justice Sanjiv Khanna) by order dated 15.9.2009 held that the “impugned order passed by the Information Commissioner dated 15^th September, 2008 is required to be set aside for failure to comply with Section 19(4) of the Right to Information Act, 2005. The said provision ensures compliance with principles of natural justice and requires that a third party shall be given a reasonable opportunity of being heard if an appeal is preferred before the Central Information Commission.” The Hon’ble High Court also noted that the petitioner school had relied upon Section 8(1)(j) of the Act and submitted that information cannot be furnished. The Hon’ble High Court accordingly by order dated 15^th September, 2009 set aside the impugned order dated 15th September, 2008 passed by the Commission and remanded the matter back to the Commission for fresh adjudication in accordance with law and directed the parties to present themselves before the Commission on 7th October, 2009.

8. In view of the remand order of the Hon’ble Delhi High Court directing fresh adjudication by the Commission, it was felt necessary that the matter be decided by a larger Bench. Initially, the matter was fixed to be heard by a Bench comprising three Hon’ble Information Commissioners on 3rd February, 2010 which was adjourned to 26^th March, 2010. On 26.3.2010, the parties were directed to identify whatever information could be provided to the appellant out of 23 items of information as sought by the appellant in her RTI application and then to appear before the Commission on 25th May, 2010 to resolve the issues of denial of information under Section 8(1)(j) of the Act, by the Pinnacle School. The hearing was, however, postponed on the request of the School. It was finally fixed for hearing on 30.6.2010, as stated above.

9. In the meantime, the respondent by their letter dated 19.4.2010 conceded that unaided recognized schools under Rule 180 of the Delhi School Education Rule have to provide certain category of information to the Directorate, which only can be provided to the applicants seeking information. Such category of information are budget estimates, final accounts, students’ enrolment, concessions/ scholarship/staff statement, schedule of fees/fines/funds, statement showing dates of disbursement of salaries. The PIO prayed that CIC may in the interest of natural justice direct private schools to display on their websites all the information pertaining to their employees, EWS details, admission details of the students in various classes.

10. The petitioner submitted that the Delhi School Education Act and rules framed thereunder are a complete code governing all aspects of functioning of aided and unaided recognized schools. A combined reading of Section 2(f) of the RTI Act and the Delhi School Education Rules [in particular Rules 50(xviii) and (xix)] shall conclusively establish that the respondent Directorate as the governing authority of the school, has the requisite powers vested in it to access to the information sought by the appellant. The petitioner further submitted that the third party by denying the information under Section 8(1)(j) of the RTI Act has already conceded the applicability of the RTI Act and had not made any representation to the effect that the information sought could not be given as the provisions of the RTI Act were not applicable to them. The petitioner also stated that in the hearing conducted by the First Appellate Authority on 9.4.2008, the Manager of the School, Shri K.K. Batra was present. And, in the said hearing, the School did not agitate against the applicability of the RTI Act. The petitioner alleged that the School was changing its stance at different levels for denial of information for malafied reasons.

11. The respondents submitted that certain information relating to inspection reports of staff room, activity room, computer room, library, etc., copies of all proceedings held for election of members of Managing Committee and copies of all inspection reports conducted and submitted by Zonal Education Officer till date respectively have been provided to the appellant.

12. The third party submitted that the RTI Act is not applicable to the private schools and it is the Directorate of Education which had to be approached in this connection. They further contended that Delhi School Education Act and Rules framed thereunder do not provide for disclosure of information. This stand of the 3rd party was in contradiction of the stand already taken before the PIO and the First Appellate Authority that the information sought by the appellant was exempted under Section 8(1)(j) of the RTI Act and cannot be disclosed. The third party has filed written statements in support of their claim and this has been taken on record and considered.

Issue for determination:

Whether the third party, a private school performing public function, can refuse to furnish the information under Section 8(1)(j) of the Act, particularly when the FAA of the respondent has ordered for disclosure of information.

Decisions:

13. The FAA of the respondent had duly heard the third party, the School Manager, Shri. K.K. Batra, and accordingly passed orders for providing the information. It is, therefore, incorrect to say that the third party was not heard before the passage of the FAA order, which was later upheld by the Commission.

14. The third party has made contradictory statements. It has been argued before the Commission that RTI Act is not applicable to a private school and that the Delhi School Education Act and Rules framed thereunder do not provide for disclosure of information. Against this, the stand already taken by the third party before the PIO and the First Appellate Authority was that the information sought by the appellant was exempted under Section 8(1)(j) of the RTI Act and thereby conceding applicability of the RTI Act to them.

15. Section 2(f) of the RTI Act defines `Information’ thus:

“Section 2(f):

"Information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.”

Further while defining `right to information’, Section 2(j) of the RTI Act lays down as under:

Section 2(j):

"Right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to—

(i) inspection of work, documents, records;

(ii) taking notes, extracts or certified copies of documents or records;

(iii) taking certified samples of material;

(iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device;

Section 2(n) of the RTI Act defines `third party’ as under:

Section 2(n):

'Third party' means a person other than the citizen making a request for information and includes a public authority’.

 `Information’ thus means any material in any form including records etc. and information relating to any private body which can be accessed by a public authority under any other law for the time being in force. In the case of third party Pinnacle School, the public authority is the respondent-Directorate of Education and the appellant has rightly submitted her RTI application to the said public authority which has to access information under the Act. However, in view of section 2(j) of the Act, the `right to information’ extends to only those information which is held by or under the control of a public authority.

16. The Hon’ble Supreme Court in “Khanapuram Gandaiah Vs. Administrative Officer & ors” (AIR 2010 SC615) has held that under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the Public Authority under any other law for the time being in force. The Hon’ble Delhi High Court in “Poorna Prajna Public School Vs. Central Information Commission” (Manu/DE/2577/2009) has held that the term 'held by or under the control of any public authority' in Section 2(j) of the RTI Act has to be read in a manner that it effectuates and is in harmony with the definition of the term 'information' as defined in Section 2(f). The said expression used in Section 2(j) of the RTI Act should not be read in a manner that it negates or nullifies definition of the term 'information' in Section 2(f) of the RTI Act. The Hon’ble High Court held that a private body need not be a public authority and the said term 'private body' has been used to distinguish and in contradistinction to the term 'public authority' as defined in Section 2(h) of the RTI Act. Thus, information which a public authority is entitled to access, under any law, from private body, is `information’ as defined under Section 2(f) of the RTI Act and has to be furnished. It was further held by the Hon’ble High Court that the term 'third party' includes not only the public authority but also any private body or person other than the citizen making request for the information. The School is a private body and a third party under Section 2(n) of the RTI Act.

17. It thus can be concluded that the Pinnacle School is a third party and is under the control of the respondent herein. As to the third party’s contention that the Delhi Education Act and the Rules framed thereunder do not provide for disclosure of information, on perusal of the said provision, it is found that various clauses of Rule 50 of the Delhi School Education Rules, 1973, in particular clauses (xviii) and (xix), are relevant for the present controversy. The same are being reproduced hereunder:

“Rule 50: Conditions for recognition — No private school shall be recognized, or continue to be recognized, by the appropriate authority unless the school fulfills the following conditions, namely:

(xviii) the school furnishes such reports and information as may be required by the Director from time to time and complies with such instructions of the appropriate authority or the Director as may be issued to secure the continued fulfillment of the condition of recognition or the removal of deficiencies in the

working of the school;

(xix) all records of the school are open to inspection by any officer authorized by the Director or the appropriate authority at any time, and the school furnishes such information as may be necessary to enable the Central Government or the Administrator to discharge its or his obligations to Parliament or to the Metropolitan Council of Delhi, as the case may be.”

18. The Pinnacle School has submitted that “All personal information has already been provided to the Applicant and in case she still wants she can again be provided”.

19. Therefore, we hold that the orders passed by the First Appellate Authority directing the third party to provide complete information to the appellant and the decision of the Commission affirming the orders of the First Appellate Authority are perfectly in compliance with the provisions of the Act. The third party is hence obliged to comply with the said orders. The Commission, therefore, directs the Respondent to seek compliance of the aforementioned order from the third party-Pinnacle School to provide information as sought at Serial Numbers (i) to (x), (xiv) and (xv) of the RTI application of the appellant dated 11.2.2008 within 15 days from the date of receipt of this decision and submit compliance immediately thereafter. The information should be furnished free of cost as per Section 7(6) of the Act, failing which appropriate action would be initiated against the concerned officials.

20. The issues relating to management and regulation of schools responsible for promotion of education are so important for development that it cannot be left at whims and caprices of private bodies, whether funded or not by the Government. The Director, Directorate of Education should, therefore, ensure compliance of these directions including the order of the First Appellate Authority dated 23.4.2008. In case the School in question fails to cooperate in the matter, appropriate action under relevant rules should be initiated for de-recognition of the school activities. A compliance report should be submitted at the earliest.

21. Announced on the Fourteenth day of July, 2010. Notice of this decision be given free of cost to the parties including Secretary, Ministry of Personnel, Public Grievances & Pensions.

 (Prof. M.M. Ansari)                           (Satyananda Mishra)

Information Commissioner                 Information Commissioner

 (Shailesh Gandhi)

Information Commissioner

_______

 Complaint No. CIC/Legal/2010/033

Right to Information Act 2005 – Section 19

Complainant - Shri M. Vasudeva

Respondent - Superintendent of Police, Korba, Chattisgarh

Decision announced: 9.4.2010

Facts:

Through a complaint of 30.3.10 Shri M. Vasudeva, Director General, National Council for Cement & Building Material, Ballabhgarh (Haryana) applied to this Commission, as follows:

“Three of our senior officials namely, Dr. M. M. Ali, Joint Director, Shri. K. Goswami, General Manager and Dr. U. K. Mandal, Group Manager have been taken into custody by Korba police (Chattisgarh) from NCB premises at Ballabgarh during working hours on 25^th March 2010, in connection with the testing work carried out by NCCBM on the samples of concrete and other materials handed over by the Korba Police earlier. These samples were from the collapsed chimney at BALCO, Korba, which resulted in several deaths in September 2009 and apparently led to public outcry. NCCBM tested these samples and submitted and test results to the Korba Police.

Subsequently, when a citizen sought the test results under RTI Act, we provided the same to him as per the provisions of RTI Act. The Korba police feels that the test results should have been kept confidential by NCCBM and they were not happy and developed a grudge on NCCBM for revealing the results to a citizen. They have taken our officials into custody on two allegations that is (1) the samples were not analysed correctly by the accused officials of NCCBM, who have analyzed the samples with an intention of favouring BALCO, who are the principal accused in the Chimney collapsed case (2) the report was also made available to the principal accused who have benefited on this account.

On 25^th march 2010, the Korba police took away our three officials without showing us any documents and after obtaining the transit remand from the Magistrate’s Court at Faridabad, took them to Korba. However, the order of the Faridabad, Magistrate on the application of the Korba Police for transit remand shows that our three officials were taken into custody under section 304/201 of IPC. On 27^th March 2010, our officials were produced before the Judicial Magistrate at Korba who ordered them to be lodged in Korba jail. On 29^th March 2010, we have filed a bail application in the Sessions Court at Korba, which will be heard on 31^st March 2010.

We feel that disclosing such information under RTI is very much in order and NCCBM is at no fault in revealing this information to a citizen, particularly when the Chhattisgarh police did not mention in their request letter for testing the samples that the results should be kept confidential.

The police orally told us that there is no need to mention confidentiality because the samples were sent by the police. We feel that the view of the police is not correct.”

Since this complaint involved various issues including jurisdiction of this Commission to adjudicate upon an issue concerning a Department of the State Government namely the Office of the S.S.P., Korba in Orissa, the matter was referred to a Full Bench of the Commission and notice served on 1.4.10 on Shri Rattan Lal Dangi, SP, Korba Distt. Chhattisgarh State seeking the following :

“It will be appreciated if the comments and comprehensive reports can be sent to the Commission as soon as possible but not later than afternoon of 6,  April, 2010. The report may be sent either on Fax or through E-mail given on the top of the D. O. letter.’

Subsequently by a letter of 5.4.10 complainant Shri M. Vasudeva submitted a copy of the order of Distt. & Sessions Judge, Korba on the bail application of the three concerned officers of NCCBM in rejecting which the learned M.C. Jagdalla, Distt. & Sessions Judge, has held as follows:

“Appellant was heard and circumstances were perused. In the above case due to fall of Chimney 40 persons died. In relation to this episode three accused were granted bail by the Hon’ble Supreme Court of India. In connection with bail, on the basis of investigation report, case of 201 IPC is also to be instituted alongwith other case on the respondents. Since the episode is still under investigation, and seeing the circumstances narrated above, there does not seem to be any justification for grant of bail to the accused. Therefore, application for bail No. 202/2010 dated 29.3.2010 is hereby dismissed. “

We have also received a letter from Shri Rattan Lal Dangi, SP Korba, Chhattisgarh of 5.4.10 attaching a copy of the report submitted to the Home Secretary, Govt. of Chhattisgarh on 1.4.’10 reporting among other things as follows:

“In this context, it is recorded that the action being taken against the concerned individuals is in fact based on non testing of material on the required standards and not based on disclosing of test report1.” ¹ Emphasis ours

In the letter addressed to this Commission, Shri Dangi has submitted, as below:

“The date of hearing, recorded in the Notice, being very near, it is not possible to appear on the said date. It is, therefore, requested that hearing may be fixed for 12.4.2010 so that we can appear on the said date for hearing.”

In a more detailed response to the appeal notice on the same date i.e. 5.4.10, addressed to the Additional Registrar, CIC, Shri Dangi has outright denied that the police action has been taken to harass the complainant’s Organization on grounds of exercising its authority under the RTI Act, as follows:

“It is totally wrong allegation because they have not been made respondents for providing information under the Right to Information Act but due to facts and evidences which show that they have given such test report, for which they were fully aware and confident that it is false report, and on the basis of which the accused can save their skin. Based on these documents, in the first instance, a case u/s 201 IPC can be instituted against them and therefore, they have been arrested. In this connection, furnishing of some information is necessary, which in short is as below:”

He has gone on to detail the grounds on which this action has been taken which are as below:

“1. The concrete core dimensions have not been mentioned, which is very important for Strength Reporting as per IS: 516:1959 Lodge No. 2:8 and in absence of it is not possible for any Expert to give his remarks.

2. Only one test has been conducted for coarse agreement sample (10 mm & 20 mm) by the Organization, whereas duplicate test is binding as per IS 383:1970. In absence of duplicate test, it is not possible for any Expert to give his recommendations.

3. Code IS 383:1970 has not been followed while conducted Sieve analysis of Test for Coarse Agreement sample (20 mm), due to which recommendations by Expert are not possible.

4. It is binding under IS Code 383:1970 to conduct duplicate test under Test for Final Agreement Sample. But this organization has not done so, due to which recommendations by Expert are not possible.

5. Recommendations by Experts were refused on the basis of reports of above Organization and it was informed that they only provide data of investigation and for recommendations they should contact any Expert of Institution for obtaining recommendations. Therefore, recommendations were sought from NIT Raipur, Chhattisgarh, which is a Higher Technical Education Institute set up by Govt. of India, where highly qualified Professors and latest testing machines are available and where training is imparted for conducting such tests/analysis, on the basis of test reports presented by NCCBM, Ballabhgarh, Haryana, which was refused by NIT Raipur due to non availability of test reports under above IS Code and they informed that it is not possible to give recommendations by the Experts due to non-availability of such test reports. On examining the above code, as intimated by NIT Raipur, the facts were found to be true and it became clear that either the tests by NCCBM Ballabhgarh Haryana were not conducted on the basis of above codes or these duplicate investigation reports were not presented intentionally.

6. On 18.2.10 in the Hon’ble Distt. & Session Courts, Korba the Advocate for BALCO presented the test report of NCCBM Ballabhgarh and comments of Associate Professor Dr. J. Prasad of IIT Roorkee, in which Dr. J. Prasad has informed that test reports of NCCBM Ballabhgarh are not in consonance with IS specifications.

7. Not only copies of sample collection memo, tailbone, FIR were sent to NCCBM Ballabhgarh, Haryana but it was also intimated to them on telephone that a case has been registered in PS BALCO Nagar vide Sr. No. 377/09 u/s 304, 34 IPC. U/s 173 IPC when Police file a final report, all the documents/enquiry reports are presented before the Court and a copy of the same is provided by the Court to the respondents free of cost. Besides, any other person can also collect these documents from the court but before filing of final report, during investigation all the documents / evidences are treated as part of case diary u/s 172 IPC and no one is allowed to inspect the same except the Court and the concerned police officer. It is as per relevant rules. NCCBM Balabhgarh Haryana was aware of this fact. Besides Korba Police had sent fee alongwith samples for testing as a client to this Organization. It is therefore, clear that NCCBM was in touch with Korba Police and was aware that the matter is under investigation. Therefore, it was moral responsibility of this Organization that it should inform the person seeking information under Right to Information Act that he may collect the information from District Police Supdt. Korba / Inspector PS BALCO Nagar. But not doing so also brings this Organization under doubt. Even then it is made clear that all the three officers of this Organization have been arrested u/s 201 IPC on the basis of sufficient documents / evidences against them. After detailed discussions and hearing the learned counsels for the accused and Dy. Director (Prosecution) and after inspecting case diary and other documents and examining the facts, Hon’ble Addl. Distt. Judge Korba found that a case u/s 201 IPC exists against respondents and their bail applications were dismissed.

8. The respondents have not been arrested under any grudge but their arrest and prosecution has been made under the relevant rules. This will prevent habit of defying rules and giving reports as per their wills, and giving recommendations of their choice and not based on test reports and creating hindrance in impartial justice, which is in the interest of law and the nation.

9. Action against accused have been taken as per evidences / documents and under the law. Their claim for undue harassment is completely false and baseless.

10. It is clear from the facts that NCCBM is trying to save its skin from criminal involvements and punishment by giving misleading statement to Central Information Commission.

11. Commission is investigating the matter and based on evidences against accused, Hon’ble Distt. Courts have found them guilty under sec. 201 IPC. Therefore, it will be appropriate for the Court only to take any decision in the matter. It is, therefore, prayed that the complaint made under the cover of Right to Information Act 2005 is baseless and false and, therefore, may be dismissed.“

The appeal was heard on 6.4.2010. The following are present:

Appellants

Shri M. Vasudeva, DG (Actg)

Shri S. N. Mehrotra, Jt. Dir. / CPIO (HRS & FAS)

Dr. S. C. Sharma, Jt. Dir. / APIO (Industrial Information.

Dr. S. Harsh, General Manager

Complainant Shri Vasudeva submitted a copy of the request of one Shri Anshuman Gargesh of Alaknanda, New Delhi received in the NCCBM on 24.12.08 in which the request for information of Shri Gargesh is as follows:

‘1. Whether the Government of Chattisgarh, Chattisgarh Police or any of their departments) are seeking or have sought the report of National Council of Cement and Building materials, Ballabgarh on the material used in the Chimney under construction at the 1200MW power plant project of BALCO in Chattisgarh?

2. A copy of the letter by which the report in Sl. No. 1 above was sought.

3. What kind of material was sent for testing to National Council of Cement and Building Materials?

4. Whether representative of National Council of Cement and Building Materials was present at the site when the material for testing was collected? If so the name and designation of the officer(S) who was/ were present.

5. copy of the letter by which the material was sent for testing to National Council of Cement and Building Materials.

6. National Council of Cement and Building Materials of correspondence exchanged between NCCBM and Government of Chattisgarh / Chattisgarh Police or any of their departments.

7. When was the report of NCCBM on testing of the material sent to the Government of Chattisgarh/ Chattisgarh Police or their department, which sought the report.

8. A copy of the report on the material testing as sent to the Government of Chattisgarh Police or their department.

9. What is the name of the test and method of testing applied?

They also submitted a copy of the order of 25.3.10 of Judicial Magistrate First Class Faridabad Shri Sunil Kumar in which the learned Magistrate has allowed transit remand from 25.3.10 till 28.3.10 since the case against the accused was registered in Korba, Chhattisgarh. Together with this report, they have attached a copy of the transit remand form in which the Korba Police have among other things, pleaded the case that “enquiry report has also been given to the persons arrested and under prosecution”

During the hearing, it was made clear to complainants that because of short notice it had not been possible for respondents to be present personally. Copies of the response received from Respondents was also handed over to Complainants. In this context, it was explained that the respondents have claimed that the action that they are taking stems from Sec. 201 IPC, not from the RTI Act. In response to a question from the Commission, complainant Shri Vasudeva agreed that the CPIO is not among the accused in the FIR No. 377/09 at PS BLACO, Distt. Korba. Sec. 201 IPC reads as follows:

“201. Causing disappearance of evidence of offence, or giving false information to screen offender.--Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false,

if a capital offence.-- if the offence, which he knows or believes to have been committed, is punishable with death, be punished with imprisonment of either description for a term, which may extend to seven years, and shall also be liable to fine;

if punishable with imprisonment for life.--and if the offence is punishable with imprisonment for life or with imprisonment, which may extend to ten years, shall be punished with imprisonment of either description for a term, which may extend to three years, and shall also be liable to fine;

if punishable with less than ten years' imprisonment.-- and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.”

DECISION NOTICE

In light of the above, the Commission decided that should complainants wish to pursue their complaint of harassment against the office of SP, BALCO, Distt. Korba, a further hearing could be held on 12.4.2010 at 4.30 p.m. by videoconference to enable respondents to appear. On the other hand, the Commission is also clear that we have no authority to adjudicate upon whether the case registered u/s 304/201 IPC read with Sec. 34 IPC is in keeping with the law since the law in that case is the Indian Penal Code and not the Right to Information Act. The only action that the Commission would be in a position to take would be if it established that action has been taken by the SP, Korba in violation of sec. 21 of RTI Act, which reads as follows:

Sec. 21

No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act or any rule made thereunder.

It is in this context that the plea taken by respondents at Para 7 quoted above, with the pertinent sentence underlined by us, could be examined. However, the Commission has subsequently received a letter from APIO NCCBM Dr. S. C. Sharma dated 7.4.10 in which he has submitted, as follows:

“As per the hearing, it appears that there is no Right to Information (RTI) angle in this case and therefore we would like to matter to be treated as closed without any further hearing.”

In light of this, the complaint is hereby dismissed with a word of caution to respondents in the Office of SP, Korba that they will exercise discretion to ensure that no harassment arises to the officers of the NCCBM on account of their having exercised their authority under the RTI Act, lest this be construed as an attempt to obstruct furnishing of information and thus inviting penalty u/s 20 (1). For this purpose, a copy of this Decision Notice will also be endorsed to Chief Secretary, Chattisgarh Shri P Joy Oommen for his information. Adjourned in the hearing, this Decision is announced on this ninth day of April, 2010. Notice of this decision be given free of cost to the parties.

Sushma Singh                                                             ML Sharma

Information Commissioner                            Information Commissioner

(Wajahat Habibullah)

Chief Information Commissioner

_______

Appeal No.CIC/SS/A/2011/001364

Appellant : Ms. Iqbal Kaur (represented through Shri Inderjeet Singh)

Respondent : National Consumer Disputes Redressal Commission,

New Delhi (through Shri S. Hanumantha Rao, Deputy Registrar & CPIO and Shri Yatinder Kumar Sakkarwal, UDC & ACPIO)

Date of Hearing : 12/12/2011

ORDER

1. The Appellant through her RTI Application dated 28/01/2011 had sought the copy of the complete case file including order sheets and judgment in Revision Petition No.914 of 2010 titled as ‘Simran Co-operative Housing Society Limited vs. Naresh Sidramappa Upase & others’ which was decided on 17/03/2010 by the National Consumer Disputes Redressal Commission, New Delhi (“NCDRC”).

2. The then ACPIO of the NCDRC had replied to the said RTI Application on 14/02/2011 and informed the Appellant that such information in the nature of judicial documents cannot be provided to third parties like the Appellant, who was not involved in the said revision petition case. The ACPIO relied on an order dated 18/09/2007 passed by this Commission in Appeal No.CIC/AT/A/2006/00586 titled as ‘Rakesh Kumar Gupta vs. ITAT’. The ACPIO stated that as per the decision in Rakesh Kumar Gupta’s case (supra), Section 4 (1) (d) of the RTI Act does not apply to judicial proceedings and therefore, the judicial records cannot be provided under the RTI Act.

3. When the Appellant preferred first appeal before the FAA of NCDRC, the said FAA through his Order dated 11/04/2011 upheld the reply given by the ACPIO. Though the FAA noted that the Appellant may inspect the judicial file of the said revision petition, yet he agreed with the CPIO to the extent that copy of judicial records cannot be supplied under the RTI Act. Aggrieved henceforth, the Appellant has preferred this second appeal.

4. The Commission has perused through the material placed on record and has heard both the parties at considerable length.

5. At the outset, the Commission would like to mention that as per Section 3 of the Indian Evidence Act, 1872, the word “Court” includes all Judges and Magistrates, and all persons, except arbitrators, legally authorized to take evidence. Clearly, as per the said provision, tribunals and commissions such the NCDRC are covered within the ambit of the term “Court”. Now, the core issue which arises for consideration in the present appeal is whether the information related to court proceedings, as sought by the Appellant, can be processed under the RTI Act.

6. A similar issue of law, though framed slightly differently, arose before the Hon’ble Delhi High Court in W.P.(C) 3530 / 2011 titled as ‘Registrar, Supreme Court of India vs. RS Mishra & others’. The Hon’ble Delhi High Court vide its Order dated 23/05/2011 passed in the said petition had held as follows:

“3. An important question that arises in the present writ petition is whether an application seeking information relating to court proceedings can be processed under the Right to Information Act, 2005 notwithstanding that there exist rules of procedure of the court concerning the disclosure of such information to the applicant.

4. Issue notice to Respondent No. 1, returnable on 24th August 2011. Dasti in addition. Respondents 2 and 3 are formal parties and no notice need to be issued to them.

5. Till the next date of hearing, there shall be a stay of the impugned order of the Central Information Commission (“CIC”). The CIC will also not proceed with petitions involving similar questions till a decision is rendered in the present writ petition.”

7. The abovesaid order of the Hon’ble Delhi High Court debars this Commission to proceed with cases involving any question of law similar to the one been framed by the Hon’ble Court, i.e. whether an application seeking information relating to court proceedings can be processed under the Right to Information Act, 2005 notwithstanding that there exist rules of procedure of the court concerning the disclosure of such information to the applicant (Emphasis Added). Therefore, the Commission is directed expressly not to proceed with such cases only where there are two channels of obtaining information related to court proceedings for an information seeker, i.e. one, through the procedure formulated by the court itself and the

other, through the RTI Act.

8. It will not be wrong to say that if there is a situation where there are no

procedures or rules established by any court for dissemination of

information relating to its proceedings, then the order passed by the Hon’ble

Delhi High Court will not be attracted. Precisely, that is the case in the

present appeal.

9. In the present case, the Consumer Protection Regulations, 2005 have been

made by the NCDRC under Section 30A of the Consumer Protection Act,

1986 and the relevant regulations pertaining to supply of court records are

reproduced below:

 “21. Certified copy.-

(l) A copy of the order is to be given to the parties free of cost as required under the Act and the rules made thereunder.

(2) In case a party requires an extra copy, it shall be issued to him duly certified by the Registry on a payment of Rs.20/- irrespective of number of pages.

(3) A certified copy of an order shall clearly specify the date when free copy was issued, date of application, date when the copy was made ready and the date when it was so delivered to him.

(4) A fee of Rs.20/- shall be paid for obtaining another certified copy.

(5) Any party desiring to get a certified copy of any document on the file of the Consumer Forum may get the same on payment of certification fee of twenty rupees per copy. Provided that if any such document of which certified copy is

sought, is over and above 5 pages, an extra amount of one rupee per page shall be charged over and above the fee of twenty rupees.

(6) Certified copy of any miscellaneous order passed by the Consumer Forum shall be supplied on payment of Rs.5 per copy.

22. Inspection of records.-Parties or their agents can inspect the records of any matter by filing an application on payment often rupees as fee.”

10. Perusal of the abovementioned regulations shows that there is nothing in the existing rules or regulations which lays any specific procedure or express

mechanism for disclosure of information related to court proceedings of NCDRC to third-parties, i.e. to those persons who are not directly interested parties contesting the lis before the NCDRC. The regulations simply concern the disclosure of information related to court proceedings to “parties” but do not prohibit the disclosure of such information to third parties in an express

manner.

11. It is in fact the submission on behalf of the NCDRC that as per law, “anything which is not permitted is forbidden”. Therefore, according to NCDRC, it is understood as implied that as per the Consumer Protection Regulations, 2005, any third party is prohibited from claiming information related to court proceedings of NCDRC. Reliance has been placed on Section 8 (1) (b) of the RTI Act which exempts the disclosure of such information which has been expressly forbidden to be published by any Court of law or tribunal or disclosure of which may constitute contempt of court.

12. There is an inherent contradiction in the arguments advanced on behalf of

the NCDRC. While on one hand, it is stated that absence of any provision in the Consumer Protection Regulations, 2005 for providing information related to court proceedings to any third party automatically implies prohibition from claiming such information; on the other hand, it is urged that as per Section 8 (1) (b) of the RTI Act, only that information is exempted from disclosure which is “expressly” forbidden to be published by any court.

13. There is nothing in the Consumer protection Regulations, 2005 which “expressly” prohibits or debars the disclosure of information related to court proceedings. It is in fact silent on the said issue. Such silence can be interpreted in two ways.

14. First, if such silence is interpreted in a harmonious manner with the RTI Act and it is assumed that the NCDRC may exercise discretion under the Consumer Protection Regulations, 2005 to provide information related to its proceedings to any third-party, then it will mean that the third-party has two channels of obtaining such information. One, through the Regulations framed by the NCDRC and the other, through the RTI Act. In such case, this Commission will be hit by the interim order dated 23/05/2011 passed by the Hon’ble Delhi Curt (supra), and by virtue of which, this Commission will not be in a position to proceed with the present appeal.

15. Second, if such silence is interpreted in the manner as suggested in the written submissions made on behalf of the NCDRC so as to mean that Consumer Protection Regulations, 2005 prohibit the disclosure of information related to its proceedings to third-parties, then that shall leave only one channel to the RTI Applicant for seeking such information, i.e. through the RTI Act. Therefore, the Commission will be entitled to proceed with the case since the issue framed by the Hon’ble Delhi High Court (supra) will not arise at all and therefore, the order dated 23/05/2011 will not operate on this Commission.

16. In the present appeal, the NCDRC has preferred to take the second approach through its written submissions. By prohibiting or debarring the disclosure of information related to its proceedings to third-parties altogether, the NCDRC has virtually created an inconsistency with the object of the RTI Act. The purpose of the RTI Act is that disclosure of information shall be the norm while exemption shall be the exception. Therefore, in case of such inconsistency between the consumer Protection Regulations, 2005 and the RTI Act, it is the latter which will prevail due to its overriding effect as per Section 22 of the RTI Act. Section 22 of the RTI Act reads as follows:

“22. Act to have overriding effect - The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”

17. Therefore, in the absence of any express bar on disclosure of information

related to its proceedings to third-parties by the NCDRC, the matter has to be looked from the aspect of the RTI Act.

18. The Appellant is third-party seeking information relating to court proceedings which involved other individuals or persons who has personal interest in the said case. Section 8 (1) (j) of the RTI Act exempts the disclosure of such information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual. Unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information, the same cannot be provided under the RTI Act.

19. The Appellant, as a third-party to the case decided by the NCDRC, has failed to show how the information in the nature of entire case file of such decided case will yield larger public interest. The Appellant has also failed to show how the disclosure of such case records will have any relationship to any public activity or interest. In fact, it is the view of this Commission that disclosure of such case records to the Appellant will cause unwarranted invasion of the privacy of those parties who were directly involved as contesting parties in the said decided case before the NCDRC.

20. Therefore, the information sought by the Appellant is exempted from disclosure under section 8 (1) (j) of the RTI Act and thus, cannot be provided to her.

21. Before parting, the Commission would like to clarify that the Full-Bench decision of this Commission in Rakesh Kumar Gupta’s case (supra) dealt  with the following three issues:

“22. ISSUES FOR DETERMINATION:

I. Whether this Commission, under the Right to Information Act, can order the ITAT to disclose information which that Tribunal has decided not to disclose under the Income Tax Act, 1961 as amended from time to time and rules made thereunder?

II. Whether the RTI Act applies to a judicial proceeding and, if so, does it override the existing law concerning dissemination of information in respect of a judicial proceeding?

III. Whether the information, which the respondents say are prohibited under the Income Tax Act can be given under the Right to Information Act?”

22. The answers to the above stated three issues in the Rakesh Kumar Gupta’s case (supra) do not apply to the present case for precisely two reasons. First, while in that case, ITAT had decided expressly and categorically not to disclose certain information related to its proceedings by virtue of the IT Act, 1961; in the present case, there is nothing in the consumer protection Regulations, 2005 which “expressly” debars the disclosure of information related to proceedings before NCDRC to third-parties. Second, that by virtue of the order dated 23/05/2011 passed by the Hon’ble Delhi High Court (supra), the question whether RTI Act applies to judicial proceedings notwithstanding that there are rules of court for disclosure of information related to such judicial proceedings is presently subjudice and there is express direction of the Hon’ble Delhi High Court to this Commission to not decide such matter till the Hon’ble Court does so. Therefore, the decision in the Rakesh Kumar Gupta’s case (supra) does not hold an authoritative stand till the matter is disposed by the Hon’ble Delhi Court.

23. Therefore, in light of the foregoing observations, the appeal is accordingly

disposed of.

(Sushma Singh)

Information Commissioner

_______

Appeal No. CIC/SM/A/2011/000237/SG

Mr.R S Misra vs Supreme Court Of India

11 May, 2011

Decision No. CIC/SM/A/2011/000237/SG/12351

Relevant Facts emerging from the Appeal:

RTI application filed on : 20/04/2010 PIO replied on : 07/05/2010 First Appeal filed on : 23/05/2010 First Appellate Authority Order of : 18/06/2010 Second Appeal filed before Commission : 05/02/2011

Information Sought:

The Appellant has sought information on nine queries pertaining to inter alia action taken/ status report on certain letters, reasons for judicial decisions, etc.

Information provided by Public Information Officer (PIO):

Queries 1 to 7: The PIO mentioned that the Appellant was represented by Ms. Rachna Gupta, Advocate in Petition for Special Leave to Appeal (Civil) Nos. 8219-8220 of 2010. Inspection can be done and information/certified copies of the judicial records /judgments of the Supreme Court of India ("Supreme Court") can be obtained by moving an application to the Registrar (Copying), Supreme Court under Order XII, Supreme Court Rules, 1966 (the "SC Rules") on payment of prescribed fees and charges.

Query 9: Under the RTI Act, it is beyond the scope and jurisdiction of the PIO to interpret the law, judgments of the Supreme Court or of any other Court, opine, comment or advise on matters. The information sought was not covered under Section 2(f) of the RTI Act.

Grounds for First Appeal:

Unsatisfactory reply provided by the PIO.

Order of the First Appellate Authority (FAA):

The FAA observed that the Appellant had addressed certain letters to the judges in relation to his SLP No. 8219- 8220/ 2010 and sought information about the action taken on the same. The Appellant was represented by a counsel in the said case. The inspection of the documents and information relating to judicial records can be done only under Order XII, SC Rules. Under query 9, the Appellant had sought the opinion of the PIO, does not fall within Section 2(f) of the RTI Act. Hence, the First Appeal was dismissed.

Ground for Second Appeal:

Information was wrongly denied to the Appellant.

Relevant Facts emerging during Hearing held on May 6, 2011:

The following were present:

Appellant: Mr. R. S. Misra;

Respondent: Mrs. Smita Vats Sharma, CPIO & Additional Registrar and Ms. Priyanka S. Telang, Advocate.

The Appellant stated that he was seeking information about the action taken on/ status report of his letters, which must be provided to him as per the provisions of the RTI Act.

The Respondent did not produce any written submissions before the Commission. The Respondent relied on certain decisions (and the judgments quoted therein) of the Commission in Manish Kumar Khanna v. Supreme Court of India CIC/WB/A/2006/00940 dated 07/12/2007, Rakesh Kumar Gupta v. Supreme Court of India CIC/WB/A/2009/000553 dated 05/05/2009 and R. K. Pandey v. Supreme Court of India CIC/WB/A/2008/00777 dated 24/04/2008 and CIC/WB/A/2009/00150 dated 20/02/2009. The main contention of the Respondent was that as per Section 22 of the RTI Act, the RTI Act shall have an overriding effect only when any other law was inconsistent with the provisions of the RTI Act. In this regard, the Respondent directed the attention of the Commission to specific portions of the decisions mentioned above (which have been quoted below).

Further, the Commission enquired of the Respondent whether she would like to furnish arguments in addition to the decisions cited above. The Respondent stated that she did not wish to furnish any further arguments and submitted that the Supreme Court already had a specific provision to furnish information under Order XII of the SC Rules and therefore, information relating to judicial matters may be provided only under the said provision. The Respondent further argued that since the then Chief Information Commissioner had upheld this contention in the decisions cited above, their arguments before this Commission were already covered under the said decisions.

The Commission enquired of the Respondent that where multiple routes were available to a citizen for obtaining information, was the citizen required to seek information only in accordance with the SC Rules. The Respondent stated that there were a number of queries under RTI applications, which were answered by the Supreme Court. However, to facilitate access to records pertaining to judicial proceedings/ matters, the applicants were apprised of the SC Rules, which laid down the procedure for obtaining the information in this regard.

The relevant portions marked by the Respondent in the decision of Manish Kumar Khanna v. Supreme Court of India CIC/WB/A/2006/00940 dated 07/12/2007 were:

"... The non-obstante clause of the Right to Information Act does not, therefore, mean an implied repeal of the Supreme Court Rules and orders framed thereunder, but only an override of RTI in case of 'inconsistency'. In this context, the following observations of the Hon'ble Apex Court in R.S. Raghunath vs. State of Karnataka -- AIR 1992 SC 81 are pertinent:

"The general Rule to be followed in case of conflict between the two statutes is that the latter abrogates the earlier one. In other words, a prior special law would yield to a later general law, if either of the two following conditions is satisfied.

(i) The two are inconsistent with each other.

(ii) There is some express reference in the later to the earlier enactment.

If either of these two conditions is fulfilled, the later law, even though general, would prevail."

... This issue came again for consideration before the Hon'ble Apex Court in Chandra Prakash Tiwari vs. Shakuntala Shukla -- A1R2002 SC 2322 and the Hon'ble Supreme Court quoted with approval the Broom's Legal Maxim in reference to two Latin Maxims in the following words:

"It is then, an elementary Rule that an earlier Act must give place to a later, if the two cannot be reconciled - lex posterior derogat priori - non est novum ut priores lages ad posteriores trahantur (Emphasis supplied) - and one Act may repeal another by express words or by implication; for it is enough if there be words which by necessary implication repeal it. But repeal by implication is never to be favoured, and must not be imputed to the legislature without necessity, or strong reason, to be shown by the party imputing it. It is only effected where the provisions of the later enactment are so inconsistent with, or repugnant to, those of the earlier that the two cannot stand together unless the two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time a repeal cannot be implied; and special Acts are not repealed by general Acts unless there be some express reference to the previous legislation, or a necessary inconsistency in the two Acts standing together, which prevents the maxim generalia specialibus non derogant (Emphasis supplied) from being applied. For where there are general words in a later Act capable of reasonable application without being extended to subjects specially dealt with by earlier legislation, then, in the absence of an indication of a particular intention to that effect, the presumption is that the general words were not intended to repeal the earlier and special legislation, to take away a particular privilege of a particular class of persons."

The differences between the Right to Information Act and the procedure as prescribed by the Supreme Court for conduct of its own practice and procedure have to be looked into from another angle also as to whether there is a direct inconsistency between the two. In this context, it may be mentioned that neither provision prohibits or forbids dissemination of information or grant of copies of records. The difference is only insofar as the practice or payments of fees etc. is concerned. There is, therefore, no inherent inconsistency between the two provisions.

Over and above, the Supreme Court Rules are particular or special law dealing with a particular phase of the subject covered by the Right to Information Act and, therefore, consistency is possible. It is a sound principle of all jurisprudence that a prior particular law is not easily to be held to be abrogated by a posterior law expressed in general terms. The said principle was accepted by the Hon'ble Supreme Court and expressed by Justice Mudholkar in the following words:

"A general statute applies to all persons and localities within its jurisdiction and scope as distinguished from a special one which in its operation is confined to a particular locality and, therefore, where it is doubtful whether the special statute was intended to be repealed by the general statute the court should try to give effect to both the enactments as far as possible." "

Based on the same, the then Chief Information concluded:

"U/s 22 of the RTI Act the provisions of the RTI Act have effect notwithstanding anything inconsistent therewith contained in any other law for time being enforced or instrument having effect by virtue in law other than this Act. However, since both the Act and Order XII of the Supreme Court Rules provide for disclosure of information of the kind sought in the present case we find that there is nothing inconsistent in the rules. It is only that Supreme Court Rules 1966 through Order XII, Rule 2 prescribe the procedure for obtaining the information. This procedure together with fees is in the province of the prescribed authority u/s 28 of the RTI Act. This issue is disposed of accordingly."

The Respondent also relied on certain portions of the decision in R. K. Pandey v. Supreme Court of India CIC/WB/A/2008/00777 dated 24/04/2008 and CIC/WB/A/2009/00150 dated 20/02/2009, which was marked as 1 and 2 by the Respondent, and is reproduced as follows:

"...We have, however, indeed found that Order No. XII of the Supreme Court Rules 1965 is not inconsistent with the RTI Act. Section 22 of the RTI Act is overriding only in that it requires that the provisions of the RTI Act "shall have the effect notwithstanding anything inconsistent therewith contained in any other law 1 for the time being in force", including the Official Secret Act, 1923.

Therefore, any law or Rule not inconsistent with the RTI Act is a law or rule which must stand notwithstanding coming into force the RTI Act. Appellant Shri R.K. Pandey expressed the apprehension that if this is the case every department will have its own rules and laws and the majesty of the RTI Act will be totally eroded. This, of course, is not so because it is not every public authority which has a right to frame rules. Under Sections 27 and 28 of the RTI Act this authority is only given either to the appropriate Government or to the competent authority'. The competent authority is clearly defined in Section 2 (e) of the RTI Act."

The Commission reserved the order during the hearing held on 06/05/2011.

Decision announced on May 11, 2011:

The Appellant has sought information about the action taken on/ status report of certain letters. In relation to queries 1 to 7, the PIO replied that inspection may be done and information/certified copies of the judicial records /judgments of the Supreme Court may be obtained by moving an application under Order XII of the SC Rules on payment of the prescribed fees. As regards query 9, the PIO stated that the information sought did not come within the ambit of Section 2(f) of the RTI Act. The information so provided by the PIO was accepted by the FAA. Dissatisfied with the same, the Appellant filed a Second Appeal before the Commission. At the outset, the Commission would like to state that it will not delve into the merits of the information sought by the Appellant. Further, the Commission is satisfied with the reply of the PIO provided in relation to query 9.

Based on the contentions of the Respondent and the decisions cited, the main issue which arises for determination before the Commission is where there were methods of obtaining information from a public authority in existence before the RTI Act, can a citizen insist on obtaining the information under the RTI Act.

The right to information is a fundamental right of the citizens of India. This has been clearly recognised by the Supreme Court in several decisions and subsequently, codified by the Parliament in 2005. The RTI Act was enacted with the spirit of ensuring transparency and access to information giving citizens the right to information. It lays down the substantive right to information of the citizens and the practical mechanism to enforce the said right. Section 3 of the RTI Act lays down that subject to the provisions of the RTI Act, all citizens shall have the right to information. The RTI Act is a crisp legislation comprising of 31 Sections, which confer upon citizens, the right to information accessible under the RTI Act, which is held by or under the control of a public authority. The scheme of the RTI Act stipulates inter alia that information sought shall be provided within the prescribed period, formulation of a proper appellate mechanism and invoking of stringent penalty where the PIO fails to provide the information within the mandated period without reasonable cause. The RTI Act is premised on disclosure being the norm, and refusal, the exception. It is legally established that information requested for under the RTI Act may be exempted from disclosure in accordance with Sections 8 and 9 only and no other exemptions can be claimed while rejecting a demand for disclosure.

Further, Section 22 of the RTI Act expressly provides that the provisions of the RTI Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than the RTI Act. In other words, where there is any inconsistency in a law as regards furnishing of information, such law shall be superseded by the RTI Act. Insertion of a non- obstante clause in Section 22 of the RTI Act was a conscious choice of the Parliament to safeguard the citizens' fundamental right to information from convoluted interpretations of other laws adopted by public authorities to deny information. The presence of Section 22 of the RTI Act simplifies the process of implementing the right to information both for citizens as well the PIO; citizens may seek to enforce their fundamental right to information by simply invoking the provisions of the RTI Act.

Given the above, two scenarios may be envisaged:

1. An earlier law/ rule whose provisions pertain to furnishing of information and is consistent with the RTI Act: Since there is no inconsistency between the law/ rule and the provisions of the RTI Act, the citizen is at liberty to choose whether she will seek information in accordance with the said law/ rule or under the RTI Act. If the PIO has received a request for information under the RTI Act, the information shall be provided to the citizen as per the provisions of the RTI Act and any denial of the same must be in accordance with Sections 8 and 9 of the RTI Act only; and

2. An earlier law/ rule whose provisions pertain to furnishing of information but is inconsistent with the RTI Act: Where there is inconsistency between the law/ rule and the RTI Act in terms of access to information, then Section 22 of the RTI Act shall override the said law/ rule and the PIO would be required to furnish the information as per the RTI Act only.

The Commission has perused the decisions cited by the Respondent and noted that the then Chief Information Commissioner has delved into the semantics of interpretations of statutes. This Commission agrees with the observations and the judgments quoted therein which discuss the overriding effect of a later general law over an earlier special law. Based on these observations, this Commission agrees that the RTI Act does not abrogate or repeal the SC Rules. This Commission also agrees with the observations of Mudholkar J., that "where it is doubtful whether the special statute was intended to be repealed by the general statute the court should try to give effect to both the enactments as far as possible".

The SC Rules as well as the RTI Act coexist and therefore, it is for the citizen to determine which route she would prefer for obtaining the information. The right to information available to the citizens under the RTI Act cannot be denied where such citizen chooses to exercise such right, as has been done by the PIO in the instant case. The Commission would like to highlight that just as the SC Rules put in place by the Supreme Court are not abrogated, the RTI Act passed by the Parliament also cannot be suspended. If the PIO has received a request for information under the RTI Act, the information shall be provided to the applicant as per the provisions of the RTI Act and any denial of the same must be in accordance with Sections 8 and 9 of the RTI Act only. In view of the same, this Commission respectfully differs with the decisions of the then Chief Information Commissioner when he concluded that since the SC Rules were not inconsistent with the RTI Act, the citizen shall be required to obtain the information under Order XII of the SC Rules.

In the instant case, the PIO had stated that there was a separate procedure under Order XII of the SC Rules for obtaining information and that the Appellant could obtain the same only by following the mechanism mentioned in Order XII of the SC Rules. In other words, it appears that the Appellant would not be able to enforce the right to information available to her under the RTI Act and have to necessarily follow the procedure mentioned in the SC Rules. Moreover, even where the Parliament has guaranteed every citizen the right to information under the RTI Act, the PIO, in the instant case, has abrogated the same by directing the Appellant to obtain the information in accordance with Order XII of the SC Rules.

The Commission has noted that the PIO has rejected the request for information under the RTI Act without taking recourse to Sections 8 and 9 of the RTI Act, which is clearly against the statutory mandate. If the reply provided by the PIO is to be accepted, it would negate the citizen's right to information under the RTI Act and frustrate the implementation of the latter. The RTI Act is a reflection of the will of the citizens of India that has been codified by the Parliament, and accepting the reply of the PIO furnished in the instant case would render the RTI Act redundant. Merely because Order XII of the SC Rules provide for a mechanism by which certain information may be obtained by the applicant, does not mean that the citizen cannot exercise her right to obtain the same information by taking recourse to the RTI Act (subject always to the provisions of Sections 8 and 9 of the RTI Act).

In view of the aforesaid arguments, this Commission holds that it is the citizen's prerogative to decide under which mechanism i.e. either Order XII of the SC Rules or the RTI Act, she would like to obtain information. If the PIO has received a request for information under the RTI Act, the information shall be provided to the applicant as per the provisions of the RTI Act and any denial of the same must be in accordance with Sections 8 and 9 of the RTI Act only; the applicant cannot be forced to obtain the information as per Order XII of the SC Rules.

At this juncture, the Commission would like to mention certain decisions of the Supreme Court in CIT v. A. Raman & Co. [1968] 67 ITR 11 (SC), which was upheld in CIT v. Calcutta Discount Co. Ltd. [1973] 91 ITR 8 (SC) and subsequently in UOI v. Azadi Bachao Andolan [2003] 263 ITR 706 (SC), where Shah J., observed as follows:

"... Avoiding of tax liability by so arranging commercial affairs that charge of tax is distributed is not prohibited. A tax payer may resort to a device to divert the income before it accrues or arises to him. Effectiveness of the device depends not upon considerations of morality, but on the operation of the Income Tax Act. Legislative injunction in taxing statutes may not, except on peril of penalty, be violated, but it may be lawfully circumvented..." (Emphasis Added)

Therefore, even when the State may lose revenue, the Supreme Court has ruled that an individual tax payer has the liberty to arrange her commercial affairs in order to reduce her tax liability, so long as such arrangement is within the operation of tax legislation(s). Drawing an analogy, it certainly stands to reason that a citizen should be able to decide on the method most convenient and expedient by which she would obtain information.

Having laid down the above, this Commission would now additionally examine whether there is any inconsistency between the RTI Act and Order XII of the SC Rules, and if so, whether Section 22 of the RTI Act shall override the provisions of the SC Rules. As discussed above, Section 22 of the RTI Act expressly provides that the provisions of the RTI Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than the RTI Act. Section 22 of the RTI Act, in no uncertain terms, lays down that the RTI Act shall override anything inconsistent contained in any other law. Order XII of the SC Rules provides inter alia:

"1. Subject to the provisions of these rules, a party to any cause, appeal or matter who has appeared shall be allowed to search, inspect or get copies of all pleadings and other documents or records in the case, on payment of the prescribed fees and charges.

2. The Court, on the application of a person who is not a party to the case, appeal or matter, may on good cause shown, allow such person such search or inspection or to obtain such copies as is or are mentioned in the last preceding rule, on payment of the prescribed fees and charges." (Emphasis added)

On a plain reading of Rules 1 and 2, it appears that citizens shall have the right to access information pertaining only to judicial matters i.e. documents/ records in a case. Rule 1 allows only a party to any cause, appeal or matter who has appeared to inspect and/ or obtain copies of information pertaining to judicial matters. However, Rule 2 allows a person who is not a party to the case, appeal or matter to inspect and/ or obtain information relating to judicial matters where 'good cause' is shown. In other words, where a person is not a party to a case, appeal or matter, she would be required to demonstrate 'good cause' before the Court before being allowed to inspect and/ or obtain copies of the information sought.

As per Section 6(2) of the RTI Act, an applicant making a request for information under the RTI Act shall not give any reasons for requesting the information. Under Rule 2, in order to determine what is 'good cause', it is necessary to enquire into the purpose/ reasons for which an applicant is seeking information. This is clearly violative of the statutory mandate of Section 6(2) of the RTI Act. Moreover, from the use of the word "may" in Rule 2, there appears to be a certain discretion conferred upon the Court to determine what amounts to 'good cause', and even where 'good cause' has been shown, whether such information shall be provided or not. This is a clear embargo on the enforcement of the fundamental right to information of citizens. Citizens would have to justify any request for information by demonstrating 'good cause' under Rule 2 and the ultimate decision whether information should be provided or not would lie with the Court. Rule 2 appears to create an exemption in providing the information, which is not envisaged in Sections 8 and 9 of the RTI Act. At this juncture, it would not be out of place to mention that the SC Rules neither provide for a specific time within which information shall be furnished, any appeal procedure, nor any penalty provisions where information is not provided.

Therefore, this Commission respectfully disagrees with the observations of the then Chief Information Commissioner and holds that Rule 2, Order XII of the SC Rules appears to impose a restriction on access to information held by or under the control of a public authority, which is prima facie inconsistent with the RTI Act. Therefore, in accordance with Section 22 of the RTI Act, the provisions of the RTI Act shall override the SC Rules.

Further, as per the reply provided by the PIO, information can be accessed by the Appellant on the Supreme Court's website. As per Section 7(9) of the RTI Act, information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question. The RTI Act mandates that information shall ordinarily be provided in the form in which it is sought or requested for. It may not be out of place to mention that more than 90% of our country's population does not have access to computers and even where they do, may not understand how to access the same. Therefore, there is a duty cast upon the PIO to ensure that information sought by an applicant is provided in hard copy or in the manner requested by the applicant. Where no specific mention is made as regards the manner in which information must be furnished, it may be presumed that the citizen is seeking information in the form of hard copy. Moreover, even where the PIO has indicated that the information may be accessed from the website, the complete link/ web address at which the requisite information is available, must be furnished.

Before parting with the instant matter, this Commission has noted that the Supreme Court, on various occasions, has ruled that it is incumbent on public sector institutions to be model employers following all laws in letter and spirit. This Commission humbly submits that the Supreme Court should become a role model in implementation of the provisions of the Right to Information Act, 2005 in its true letter and spirit and inspire all public authorities to follow its lead in transparency. This would certainly enable better delivery of the citizen's fundamental right to information.

In view of the foregoing arguments, this Commission respectfully disagrees with the decision of the then Chief Information Commissioner that the PIO, Supreme Court may choose to deny the information sought under the RTI Act and ask an applicant to apply for information under Order XII of the SC Rules.

This Bench further rules that all citizens have the right to access information under Section 3 of the RTI Act and PIOs shall provide the information sought to the citizens, subject always to the provisions of the RTI Act only.

Where there are methods of giving information by any public authority which were in existence before the advent of the RTI Act, the citizen may insist on invoking the provisions of the RTI Act to obtain the information. It is the citizen's prerogative to decide under which mechanism i.e. under the method prescribed by the public authority or the RTI Act, she would like to obtain the information.

The Appeal is allowed. The PIO is directed to provide the complete information as available on record in relation to queries 1 to 7 to the Appellant before June 5, 2011.

Notice of this decision be given free of cost to the parties.

Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act.

Shailesh Gandhi

Information Commissioner

_______

Case No. CIC/SS/A/2012/000600

Dated: 11.07.2012

Name of Appellant : Gurvinder Singh Grover

Name of Respondent : Institute of Chartered Accountants of India

Date of Hearing : 28.06.2012

ORDER

Shri Gurvinder Singh Grover, the appellant has filed this appeal dated 5.12.2011 before the Commission against the respondent Institute of Chartered Accountants of India (ICAI), New Delhi for not providing correct and complete information in reply to his RTI applications dated 22.7.2011. The matter came up for hearing on 28.06.2012. The appellant was present and the respondents were represented by Shri N.P. Singh, FAA and Ms. Seema Gerotra, Deputy Director & CPIO.

2. The appellant filed an application dated 22.7.2011 under the provisions of the RTI Act, 2005 in which he sought information on the following seven queries

– “(1) I was allowed inspection of the file on 24.62011 as per CIC order dated

25.4.11. I need a confirmation from you that prior to the inspection, the said file was not tempered by any official; (2) I was informed vide order dated 25.8.2010 that the Audio Cassette has been destroyed. I may please be informed under what Rules the Audio Cassette was destroyed as it was a vital piece of evidence for me before the Council. What is the source of information on the basis of which it was said to have been destroyed. If no Rules exists it may please be informed when, who and why the Cassette was destroyed. It is very much pertinent to mention here that on the receipt of the report of the Disciplinary Committee, it was observed be me that the findings in the report are based on incorrect facts, statements and submissions that were never made by me have been mentioned to have been so made and also submissions and statements those were made, have been ignored by the Disciplinary Committee (DC); (3) Provide rules for recording of the complete proceedings before the DC. If no Rules exists, then under whose directions the recording was done. It is not out of place to mention here that the ex-President of the ICAI categorically informed during the course of proceedings that complete Audio Cassette will be provided to me; (iv) Provide the date i.e. month and year when first recording, through Audio Cassette, of the proceedings before the DC took place; (5) Provide the procedure for recording of the proceedings before the DC as well as timing of destroying of Audio Cassette (which is vital piece of evidence) i.e. when and how the same is destroyed. Who gives the permission to do so; (6) I may please be informed whether any record has been kept in respect fo person who has been recording, who has been destroying and under whose direction the audio cassettes were destroyed. Provide details for the last five years; and (7) I may please be informed whether such recording of the proceedings before the DC with the same procedure of its destroying is still being done. If no, why and when it was stopped and under what Rules or otherwise under whose direction it has been done.” The CPIO vide her letter No. ICAI:RTIA:CPIO:1418:2011 dated 19.8.2011 replied to the appellant as follows: “(1) It is informed that prior to your inspection as per order of CIC, the file was not tampered by any official; (2) As regard the recording of the proceedings, it is informed that it was duly informed to you vide our letter dated 25.8.02010 that the audio cassette recording is only to aid the reporter for taking his notes and thereafter is not preserved for any future reference. It is however, informed that the said fact was duly submitted before the CIC during the hearing of 2nd appeal filed by you under RTI Act against the ICAI. Further, your contention that the report of the DC contains submissions never made by you and omissions of submission/ statements made, it is informed that you may make pleadings in this regard in the forum of written/oral submissions on the report of the DC and the same would be considered by the Council at the time of consideration of the report of the DC, for which adequate notice would be given to both the parties; (3) There is no specified rules for recording of the proceedings of the DC. As informed, the audio recording of the proceedings of the DC is being done only to facilitate the reporter who is also taking down manually the proceedings to refer to the Cassette for any assistance/ clarification vis-à-vis his noting taken. Audio recording of proceeding is an internal procedure which is in practice since 1995 and the same is meant for convenience of the reporter only; (4) The exact date/ month of first recording is not available. The process of audio recording of the proceedings of the Committee was initiated sometime during the year 1995 and the same is being continued ever since; (5) As it is informed above, there is no specific procedure for recording the proceedings before the DC as the recording is done from the start to the end of hearing of a case; (6) The audio cassettes of proceedings of the DC are not preserved by the office after transcription of the same is done by the reporters and no such records are maintained in this regard; and (7) The process of audio cassette recording f the meeting of the DC is still being followed and while typed verbatim records of the case are maintained in the file records, however, the cassette(s) are not preserved after the transcription is completed.”

3. However, not satisfied with the reply of the CPIO, the appellant filed first appeal on 6.9.2011 before the FAA. The FAA vide his order No. 29-CA/RTI/AA-202/2011 dated 5.10.2011 has concurred with the reply of the CPIO.

4. During the hearing the appellant filed his written submissions in which he submits that certain vital documents are not a part of the record. The appellant refers to his letter dated 8.12.2011 to the President of the ICAI requesting to know why certain vital papers/ documents are not a part of the complaint record. The Institute has deliberately destroyed the Audio Cassette, the vital piece of evidence, and also tampered with the file. On the other hand the respondent submit that recording of the proceedings of the Disciplinary Committee is being done only to facilitate the reporter who also takes down manually the proceedings, to refer to the Cassette for any assistance vis-à-vis his noting taken. Audio recording of proceeding is an internal procedure and after typing verbatim records, the Audio Cassettes are not preserved after the transcription is completed.

5. Having considered the submission of the respondent, the Commission is of the view that requisite information as held by the public authority has been provided to the appellant. However, the Commission hereby directs the CPIO to provide the name of the person who recorded the aforementioned Audio Cassette, when the audio cassette was destroyed. The CPIO will reply to the appellant regarding his contention that certain vital papers/ documents are not a part of the complaint record and explain to him the reasons thereof. The CPIO will also provide copies of these documents, if any, free of cost, to the appellant. The CPIO will comply with the directions of the Commission within two weeks of receipt of this order.

(Sushma Singh)

Information Commissioner

_______

Case No. CIC/SS/A/2012/001678

Dated: 11.7.2012

Name of Appellant : Mr. Ashok Kumar Walia

Name of Respondent : Ministry of Law & Justice

ORDER

The Commission has received an appeal dated 20.2.2012 from Mr. Ashok Kumar Walia against the Ministry of Law & Justice for deemed refusal to his RTI request dated 16.12.2011.

2. In order to avoid multiple proceedings under sections 18 and 19 of the RTI Act, viz., complaints and appeals, this case is remitted to CPIO, Ministry of Law & Justice, New Delhi (along with copy of complaint and RTI-request), with the following directions:

(i) In case no reply has been given by CPIO to the Appellant to his RTI-request dated 16.12.2011, CPIO should furnish a reply to the Appellant within two weeks of receipt of this order.

(ii) In case CPIO has already given a reply to the Appellant in the matter, he should furnish a copy of his reply to the Appellant within one week of receipt of this order. (iii) CPIO should invariably indicate to the Appellant the name and address of the 1st Appellate Authority, before whom the Appellant can file first-appeal, if any.

3. In case the Appellant is not satisfied with the reply received from CPIO, he, under section 19(1) of the RTI Act, may within the time prescribed, file his first-appeal before the Appellate Authority (AA).

4. On receipt of the first appeal from the petitioner as per the above directions, AA should dispose of the appeal within the period stipulated in the RTI Act.

5. In case the Appellant is not satisfied with the decision of First Appellate Authority, he is at liberty to file a second appeal afresh before the Commission, under section 19(3), along with complaint u/s 18, if any.

The appeal is disposed of with above directions.

(Sushma Singh)

Information Commissioner

_______

Case No. CIC/SS/A/2012/000470

Dated: 13.07.2012

Name of Appellant : Shri Ashok Kumar Arora

Name of Respondent : Delhi Police, West District

Date of Hearing : 03.07.2012

ORDER

Shri Ashok Kumar Arora, the appellant has filed this appeal dated 3.11.2011 before the Commission against the respondent Delhi Police, West District for providing incomplete and wrong information in reply to his RTI application dated 18.7.2011. The matter came up for hearing on 03.07.2012. The appellant was present whereas the respondent were represented by Shri Vinit Kumar, ACP, Shri Jagjit Singh, SHO, Hari Nagar and Shri Shiv Dutt Jaimini, SI.

2. The appellant filed an application dated 18.7.2011 under the provisions of the RTI Act in which he sought information on six queries pertaining to a complaint made by Shri Sohan Lal, in respect of his basement Godown at 17/2, D.S. Prem Nagar, Janakpuri, New Delhi. The CPIO vide letter No. ID-1795/11/4904/West District dated 10.8.2011 provided point-wise information to the appellant.

3. Not satisfied with the reply of the CPIO, the appellant filed first appeal on 25.8.2011. The FAA vide his order No. (155/11)/750-51/Appeal Cell/WD dated 22.9.2011 disposed of appellant’s first appeal with the direction to the CPIO to provide complete and specific information to the appellant on Point Nos. 1, 3, 4, 5 and 6 within ten days. In compliance with the direction of the FAA, the CPIO vide letter No. ID-1795/11/6131`/DIC (DA-I)/West District dated 29.9.2011 replied to the appellant, based on a fresh report obtained from SHO, Hari Nagar through ACP, Tilak Nagar.

4. It is the submission of the appellant that enquiry report of the police into the complaint lodged by Shri Sohan Lal is not according to facts. The appellant concedes that he has atta, maida Godown on the ground floor of the aforementioned premises but that there is no Godown in the basement. Whereas, according to the Police enquiry report, it has been stated that there is a atta, maida Godown in the basement of the premises. According to the appellant this statement is false and there was no visit by the I.O. to the basement of the shop nor has his statement been recorded by the Police. The appellant submits that the entry into the basement is only through the shop and no police official has ever come into the shop. Therefore, the I.O. has given his report without visiting basement. According to the appellant, based on the wrong enquiry report of the Police, the MCD has sealed his basement.

5. Having considered the submissions of the parties, the Commission is of the view that the appellant has a grievance over the enquiry conducted by the Police into a complaint lodged by a neighbour. It is his contention that the Police have given a report to the MCD without verification of actual facts and without inspection. There is no provision under the RTI Act for redressal of grievances. However, the senior Police officials may look into his complaint, since it has been brought to their notice.

The matter is disposed of on the part of the Commission.

(Sushma Singh)

Information Commissioner

_______

Case No. CIC/SS/A/2012/000978

Dated: 12.07.2012

Name of Appellant : Shri Kapoor Shankar Maan

Name of Respondent : Ministry of Law & Justice,

Legislative Department

Date of Hearing : 02.07.2012

ORDER

Shri Kapoor Shankar Maan, the appellant has filed this appeal dated 30.12.2011 before the Commission against the respondent Ministry of Law & Justice, Legislative Department, New Delhi for not providing information in reply to his RTI application dated 31.7.2011. The matter came up for hearing on 02.07.2012. The appellant was absent whereas the respondent were represented by Shri Jose Thomas, Deputy Secretary & CPIO and Shri R.S. Jaya Krishnan, ACPIO.

2. The appellant filed an application dated 31.7.2011 under the provisions of the RTI Act, 2005 in which he sought copies of the following Orders/Acts “(1) Constitution (Scheduled Castes) Order, 1950; (2) Constitution (Scheduled Tribes) Order, 1950; (3) Constitution (Scheduled Castes) (Union Territories) Order, 1951, (4) Constitution (Scheduled Tribes) (Union Territories) Order, 1951; and (5) The Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1956 (63 of 1956)”. The CPIO vide his reply No. 8(28)/2011-RTI dated 12.8.2011 informed the appellant that the total numbers of pages to be provided is 78 and the fee for the same is @ Rs. 2/- per page. As the appellant has already submitted the application fee of Rs. 10/- plus an additional fee of Rs. 60/-, he was requested to send an amount of Rs. 96/- by way of IPO, favouring CPIO, Legislative Department, Ministry of Law & Justice, New Delhi so that the documents as requested by him could be sent.

3. Not satisfied with the reply of the CPIO, the appellant filed first appeal on 18.10.2011. The FAA vide his order No. 57/2011 (F. No. 8(28)/2011-RTI dated 13.12.2011, while disposing of the first appeal, gave the following directions to the CPIO: “However, since the appellant has already deposited an amount of Rs. 60/- in advance, CPIO is directed to forward to the appellant (1) Copy of the Constitution (Scheduled Castes) Order 1950 (20 pages) and (2) Constitution (Scheduled Tribes) Order 1950 (14 pages). Although the total amount involved in this regard ids Rs. 68/- against Rs. 60/- already deposited by the appellant, 8 pages of the document may be furnished to him free of cost, keeping in view the delay in the matter. It is also observed that the appellant has enclosed along with the appeal a photocopy of the courier agencies acknowledgement receipt, but this is not conclusive proof of the letter enclosing the IPOs having been delivered in the Legislative Department. The appellant may, therefore, obtain proof of the delivery of the impugned letter containing the IPOs to the Legislative Department from his courier agency and forward the same to this Department. Alternatively, he may deposit the balance amount of Rs. 88/- constituting the cost of the rest of the documents (44) pages) requisitioned by him to enable this Department to supply the said documents.” The CPIO vide his letter dated 13.12.2011 has complied with the directions of the FAA.

4. A perusal of the document of the private courier agency, reveals that the letter has not been properly addressed to the Ministry of Law & Justice, which is perhaps the reason why the IPO has not reached the CPIO. A perusal of the CPIO’s letter dated 12.8.2011 shows that the CPIO had requested the appellant to submit an extra amount of Rs. 96/- by way of IPO in favour of CPIO, Legislative Department, Ministry of Law & Justice, New Delhi for obtaining the required documents. The Commission is of the opinion that complete and correct address has not been communicated by the then CPIO. The only reason that the IPO has not reached the respondent is due to the reason that complete address has not been communicated by the CPIO. Under the circumstances, the Commission is of the view that it is not the fault of the appellant that the IPO has not been duly received by the Department. Therefore, the CPIO is hereby directed to provide authenticated copies of the documents to the appellant free of cost within two weeks of receipt of this order.

The matter is disposed of with the above directions.

(Sushma Singh)

Information Commissioner

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“All the world's a stage, and all the men and women merely players: they have their exits and their entrances; and one man in his time plays many parts, his acts being seven ages.”

William Shakespeare

“Lead, follow, or get out of the way.”

Laurence J. Peter