TaxTMI 
TaxTMI 
TaxTMI 
2010 (5) TMI 930
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....d to hold Governments and their instrumentalities accountable to the governed; And whereas revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information; And whereas it is necessary to harmonise these conflicting interests while preserving the paramountcy of the democratic ideal" (emphasis supplied) Thus, the flow of information is not to be an unregulated flood. It needs to be controlled just as the flow of water is controlled by a tap. Those empowered to handle this 'tap' of information are imbued with great power. Under the said Act, this power is to be exercised by the Information Commissions (State and Central). But, the power is clearly not plenary, unrestricted, limitless or unguided. The Information Commissions are set up under the said Act and they have to perform their functions and duties within the precincts marked out by the legislature. As we shall see, this is a case where the Central Information Commission and the Chief Information Commissioner have travelled beyond their b....
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....adversely the absence of Vice Chairman, DDA who was specially invited on this occasion to help clarify the decision regarding compliance with the orders of this Commission. (underlining added) 3. The operative portion of the decision taken by the Commission on 22.09.2009 is as under:- "Having heard the arguments and examined the records, we find the levels of compliance of the DDA both in letter & spirit of the RTI Act leaves much to be desired. It does not appear that close attention has been paid by the top management of this Authority to ensure a smooth transition to the transparency and accountability that is demanded by this law. Principal Commissioner cum Secretary, DDA Shri V.M. Bansal, although repeatedly asked to clarify various points at issue, solidly took recourse to the plea that whatever the Commission directs, the DDA will implement. He had no suggestions of what course may be followed either by internal inquiry or enquiry by professionals of the need to review the public disclosure policy of the DDA. This is a most unsatisfactory situation in a public authority, which should be in the forefront of transparency dealing with a mandate as vital as is assigned to the....
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.... RTI Act, which included pro-active disclosures. Initially, the respondent No.2 had claimed several reliefs, which included the providing of information sought, a direction to the DDA to deposit records with the Commission, appointment of a single Public Information Officer (PIO); re-designing of the application form; copies of 17 manuals be provided to the complainant; and payment of compensation. However, before us, the respondent No.2 submitted that his only surviving grievance is that the provisions of Section 4 of the RTI Act be complied with and the details be made available on the website of the Delhi Development Authority as expeditiously as possible. We are, therefore, focusing only on the aspect of compliance by the DDA with the provisions of Section 4 of the RTI Act. 6. On the said complaint made by the respondent No.2, the Commission passed an order on 25.02.2006, whereby the public information officer of the petitioner was, inter alia, directed to provide the Commission with a compliance report for the Commission's record with respect to the obligations under Section 4 of the RTI Act. It was also directed that the Acts and the Rules relevant to the functioning of the ....
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....s to, inter alia, take the following steps:- "xxxxx xxxxx xxxxx xxxxx xxxxx (i) Since a reasonable time has now passed form the time of promulgation of the Act in 2005, the Public Authorities should now take urgent steps to have their records converted to electronic form, catalogued, indexed and computerized for easy accessibility through the network all over the country, as mandated in Section 4(1)(a) of the Act. The computerization, dissemination and updating of record is an ongoing and continuous process and all Public Authorities should put a proper system in place to make such sharing of records as automatic, routine and continuous process, so that access to such records is facilitated. (ii) The Public Authorities are required to take immediate steps to publish detailed, complete and unambiguous information under the 16 categories, as on 31.3.2009 (if already not done or partially done) and thereafter update the information as and when necessary, but definitely every year, as mandated under section 4(1)(b) of the Act. (iii) While formulating important policies or announcing the decisions affecting the public, the Public Authorities are required to publish all relevant ....
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....ed the information in a disorganized manner which was also admittedly incomplete thereby bringing in confusion instead of clarity into the system for providing access to information as required under Section 2(i) of the RTI Act. Based upon this premise, the Central Information Commission came to the following conclusion in its order dated 24.07.2009:- "Under the circumstances, it will be necessary to launch a more detailed enquiry into the functioning of DDA in servicing the RTI Act. For this purpose, Vice Chairman, DDA Shri Ashok Kumar together with Principal Commissioner cum Secretary, DDA, will appear before us on 3rd Sept., 2009 at 11.00 a.m. to discuss the present situation and the requirement and scope of further enquiry to enable us to reach a constructive conclusion in this matter."(underlining added) 10. From the above decision, it is apparent that the Central Information Commission thought it fit to launch a detailed inquiry into the functioning of the DDA in servicing the RTI Act. For this purpose, the Commission directed the Vice-Chairman, DDA together with the Principal Commissioner-cum-Secretary, DDA to appear before the Commission on 03.09.2009. The expression use....
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....anner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated; (b) publish within one hundred and twenty days from the enactment of this Act,- (i) the particulars of its organisation, functions and duties; (ii) the powers and duties of its officers and employees; (iii) the procedure followed in the decision making process, including channels of supervision and accountability; (iv) the norms set by it for the discharge of its functions; (v) the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions; (vi) a statement of the categories of documents that are held by it or under its control; (vii) the particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof; (viii) a statemen....
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....blic Information Officer or State Public Information Officer, as the case may be, available free or at such cost of the medium or the print cost price as may be prescribed. Explanation.-For the purposes of sub-sections (3) and (4), "disseminated" means making known or communicated the information to the public through notice boards, newspapers, public announcements, media broadcasts, the internet or any other means, including inspection of offices of any public authority." 14. Section 18 prescribes the powers and functions of the Central Information Commission and the State Information Commission. It reads as under:- "18. Powers and functions of the Information Commission.- (1) Subject to the provisions of this Act, it shall be the duty of the Central Information Commission or State Information Commission, as the case may be, to receive and inquire into a complaint from any person,- (a) who has been unable to submit a request to a Central Public Information Officer or State Public Information Officer, as the case may be, either by reason that no such officer has been appointed under this Act, or because the Central Assistant Public Information Officer or State Assista....
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....e reads as under:- "19. Appeal.- (1) Any person who, does not receive a decision within the time specified in sub-section (1) or clause (a) of sub-section (3) of section 7, or is aggrieved by a decision of the Central Public Information Officer or State Public Information Officer, as the case may be, may within thirty days from the expiry of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the Central Public Information Officer or State Public Information Officer as the case may be, in each public authority: Provided that such officer may admit the appeal after the expiry of the period of thirty days if he or she is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (2) Where an appeal is preferred against an order made by a Central Public Information Officer or a State Public Information Officer, as the case may be, under section 11 to disclose third party information, the appeal by the concerned third party shall be made within thirty days from the date of the order. (3) A second appeal against the decision under sub-section (1) shall lie within ninety days from the dat....
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.... impose any of the penalties provided under this Act; (d) reject the application. (9) The Central Information Commission or State Information Commission, as the case may be, shall give notice of its decision, including any right of appeal, to the complainant and the public authority. (10) The Central Information Commission or State Information Commission, as the case may be, shall decide the appeal in accordance with such procedure as may be prescribed." 16. From the above, it is clear that certain obligations have been cast upon the public authorities by virtue of Section 4. In particular, Section 4(1)(b) requires every public authority to, within 120 days from the enactment of the Act, publish particulars of its organization, functions and duties; powers and duties of its officers and employees; procedures followed in the decision making process, including channels of supervision and accountability, etc. Section 4(1)(c) casts an obligation upon a public authority to publish all relevant facts while formulating important policies or announcing the decisions which affect the public. With regard to the provisions of Section 4(1)(c), it is specifically provided in sub-section ....
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....formation Commission as also the State Information Commission. Sub-section (1) stipulates that it shall be the duty of the Information Commission to receive and "inquire into" a complaint from any person where any of the conditions mentioned in clauses (a) to (f) are satisfied. Sub-section (2) of Section 18 stipulates that the Information Commission, if it is satisfied that there are reasonable grounds to inquire into the matter, may initiate an "inquiry" in respect thereof. Sub-section (3) of Section 18 provides that the Information Commission shall, "while inquiring into" any matter under Section 18, have the same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908 in respect of the matters specified in the said provision which, inter alia, includes summoning and enforcing the attendance of the persons and compelling them to give oral or written evidence on oath or to produce the documents or things, etc. Section 18(4) empowers the Information Commission to examine any record to which the RTI Act applies, which is under the control of the public authority, during the "inquiry" of any complaint under the said Act. It also stipulates th....
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....v. State of Bihar & Others: 2004 (3) SCC 723). 20. As we have seen, there is nothing in the Act which empowers the Central Information Commission to appoint a committee to conduct an inquiry on its behalf, the only rules that have been framed under Section 27 of the RTI Act, are the following:- i) The Right to Information (Regulation of Fee and Cost) Rules, 2005; and ii) The Central Information Commission (Appeal Procedure) Rules, 2005. None of these rules deal with the powers of inquiry of the Central Information Commission. Therefore, there is nothing prescribed either in the Act or the Rules made thereunder, whereby the Central Information Commission could be said to have been empowered to delegate its power of inquiry under Section 18 to some other person or a committee of persons. 21. Consequently, this question has to be answered in the negative. The Central Information Commission did not have the power to appoint the committee that it did by virtue of its order dated 22.09.2009 and, therefore, to this extent, the impugned order is liable to be set aside and it is so set aside. Question No.2: 22. The learned counsel appearing on behalf of the Central Information Com....
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.... management of the 'affairs' of the Central Information Commission so as to enable it to function effectively. However, we may observe, at the outset, that the regulations go far beyond the general superintendence, direction and management of the affairs of the Central Information Commission, which is provided for under Section 12(4) of the RTI Act. Section 12 (4) of the RTI Act reads as under:- "12. Constitution of Central Information Commission.- (1) xxxxx xxxxx xxxxx xxxxx (2) xxxxx xxxxx xxxxx xxxxx (3) xxxxx xxxxx xxxxx xxxxx (4) The general superintendence, direction and management of the affairs of the Central Information Commission shall vest in the Chief Information Commissioner who shall be assisted by the Information Commissioners and may exercise all such powers and do all such acts and things which may be exercised or done by the Central Information Commission autonomously without being subjected to directions by any other authority under this Act. (5) xxxxx xxxxx xxxxx xxxxx (6) xxxxx xxxxx xxxxx xxxxx (7) xxxxx xxxxx xxxxx xxxxx " 25. We note that there is a similar provision in respect of the State Information Commissions, namely, Section 15(4). Sect....
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....ise its jurisdiction in respect of the powers confided to it but the Commission should necessarily act within the parameters prescribed by the Act creating it and the confines of jurisdiction vested in it by the Act." (underlining added) 27. A Constitution Bench of the Supreme Court in Naraindas Indurkhya v. State of M.P.: 1974 (4) SCC 788, considered the rival claims of the Board of Secondary Education and the State Government, under the provisions of the Madhya Pradesh Madhyamik Shiksha Adhiniyam, 1965, to the power to prescribe text books. The said Board was constituted under section 3 of the said Act and section 8 defined its powers which, inter alia, included the power to prescribe courses of instruction in such branches of Secondary Education as it may think fit. In this backdrop, the Supreme Court held that the Board did not have the power to prescribe text books and, therefore, the Notification issued by the Board 'prescribing' text books was held to be ineffectual. The Supreme Court's observations were, inter alia, as follows:- "13. It is elementary that the Board is a creature of the statute and unless the statute creating it invests it with power to prescribe text boo....
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.... in the case of the House of the people or the Legislative Assembly of a State or a Union territory having such Assembly and the Chairman in the case of the Council of States or Legislative Council of a State; (ii) the Chief Justice of India in the case of the Supreme Court; (iii) the Chief Justice of the High Court in the case of a High Court; (iv) the President or the Governor, as the case may be, in the case of other authorities established or constituted by or under the Constitution; (v) the administrator appointed under article 239 of the Constitution; xxxxx xxxxx xxxxx xxxxx" 29. The Chief Information Commissioner does not fall within the definition of "appropriate Government" or the "competent authority". In other words, the Chief Information Commissioner has no powers to make rules under Section 27 or Section 28. Both the "appropriate government" and the "competent authority" have been empowered by the said Rules to make rules to carry out the provisions of the RTI Act. However, such rules would only be operative if they are notified in the official gazette. 30. In Sukhdev Singh and Others v. Bhagatram Sardar Singh Raghuvanshi and Anotehr: 1975 (1) SCC 421, a Co....
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....ng source of power..…" (underlining added) In this case, the ostensible source of power for framing the said Regulations is indicated to be section 12(4) of the RTI Act. But, that provision only relates to the superintendence, direction and management of the affairs of the Central Information Commission. Section 12(4) cannot be regarded as the fountain-head of the power to make 'regulations' whether expressly or by implication. The scope and ambit of Section 12(4) is limited to the management of the affairs of the Central Information Commission. The words superintendence, direction and management are all used in a synonymous sense and concerns the internal affairs of the Commission. The power which vests in the Chief Information Commissioner by virtue of Section 12(4) does not extend to the subject matter of the rule making powers of the 'appropriate government' or the 'competent authority' under Sections 27 and 28, respectively. 31. With regard to the impugned Regulations, we may also observe that, first of all, there is no power prescribed under the Act to make any regulations. Secondly, even if the said regulations were to be construed as Rules, the Chief Information ....
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.... Central Information Commission (Management) Regulations 2007 In exercise of the powers conferred by clauses (e) and (f) of sub-section (2) of section 27 of the Right to Information Act, 2005 (22 of 2005), the Central Government hereby makes the following rules, namely:- In exercise of the powers conferred by section 12(4) of the Right to Information Act, 2005 (Act 22 of 2005) and all other provisions in the Act enabling in this behalf, the Chief Information Commissioner hereby makes the following Regulations for management of the affairs of the Central Information Commission so as to enable it to function effectively. 1. Short Title and commencement. - (1) These rules may be called the Central Information Commission (Appeal Procedure) Rules, 2005. Chapter-1: Short Title and Commencement:- (i) These Regulations may be called "the Central Information Commission (Management) Regulations, 2007". (2) They shall come into force on the date of their publication in the Official Gazette.( 28th October, 2005) (ii) They shall come into force with effect from such date as the Chief Information Commissioner may by order specify. (21st June, 2002) (iii) Appeals and Complaints which have....
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....nced, against which the appeal is preferred; (iv) brief facts leading to the appeal or the complaint; (v) if the appeal or complaint is preferred against refusal or deemed refusal of the information, the particulars of the application, including number and date and name and address of the Central Public Information Officer to whom the application was made and name and address of the First Appellate Authority before whom the appeal was filed; (vi) prayer or relief sought; (vii) grounds for the prayer or relief; (viii) verification by the appellant or the complainant, as the case may be; and (ix) any other information which may be deemed as necessary and helpful for the Commission to decide the appeal or complaint. (2) The contents of the complaint shall be in the same form as prescribed for the appeal with such changes as may be deemed necessary or appropriate. 4. Documents to accompany appeal. - Every appeal made to the Commission shall be accompanied by the following documents, namely. (i) self-attested copies of the orders or documents against which the appeal is being preferred ; ii) copies of documents relied upon by the appellant and referred to in the appeal ; and ....
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....fied by the appellant or the complainant, as the case may be; (c) that the appeal or the complaint is in accordance with the Regulations. (ii) The Registrar shall also ensure that the appeal or the complaint petition contains copies of all required documents such as: (i) RTI application (ii) Receipt of the RTI Application (iii) Proof in regard to payment of fee/cost, if any; (iv) Decision/reply etc. from the CPIO, if any; (v) Appeal to the 1st Appellate Authority; (vi) Decision of the 1st Appellate Authority, if any. (iii) The Registrar shall scrutinize every appeal/complaint received and will ensure - (a) that the appeal or the complaint petition is duly verified and required number of copies are submitted; (b) That all the documents annexed are duly paginated and attested by the appellant or the complainant. (c) That the copies of the documents filed and submitted are clear, distinct and legible; (iv) That the Registrar will return any such appeal or the complaint if it does not meet the requirement or conform to the standard as set out above and permit its resubmission in proper form. (v) The Registrar may reject any such appeal or complaint petition - (a) if it ....
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....ade under these Rules. 13. Posting of appeal or complaint before the Information Commissioner:- (i) An appeal or a complaint, or a class or categories of appeals or complaints, shall be heard either by a Single Information Commissioner or a Division Bench of two Information Commissioners, or a Full Bench of three or more Information Commissioners, as decided by the Chief Information Commissioner by a special or general order issued for this purpose from time to time. (ii) Where in the course of the hearing of an appeal or complaint or other proceeding before a Single Information Commissioner, the Commissioner considers that the matter should be dealt with by a Division or Full Bench, he shall refer the matter to the Chief Information Commissioner who may thereupon constitute such a Bench for the hearing and disposal of the matter. (iii) Similarly, where during the course of the hearing of a matter before a Division Bench, the Bench considers that the matter should be dealt with by a Full Bench, or where a Full Bench considers that a matter should be dealt with by a larger Bench, it shall refer the matter to the Chief Information Commissioner who may thereupon constitute such a Ben....
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....wledgment due ; or (iv) through Head of Office or Department. No such provision has been made under these Regulations. 7. Personal presence of the appellant or complainant. - (1) The appellant or the complainant, as the case may be, shall in every case be informed of the date of hearing at least seven clear days before that date. (2) The appellant or the complainant, as the case may be, may at his discretion at the time of hearing of the appeal or complaint by the Commission be present in person or through his duly authorised representative or may opt not to be present. (3) Where the Commission is satisfied that the circumstances exist due to which the appellant or the complainant, as the case may be, is being prevented from attending the hearing of the Commission, then, the Commission may afford the appellant or the complainant, as the case may be, another opportunity of being heard before a final decision is taken or take any other appropriate action as it may deem fit. (4) The appellant or the complainant, as the case may be, may seek the assistance of any person in the process of the appeal while presenting his points and the person representing him may not be a legal pr....
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....er pronounced by a Single Information Commissioner or by a Division Bench or by a Full Bench of three or more Information Commissioners, shall be deemed to be the decision or order by the Commission under the Act. No such provision has been made under these Rules. 17. Adjournment of Hearing:- The appellant or the complainant or any of the respondents may, for just and sufficient reasons, make an application for adjournment of the hearing. The Commission may consider the said application and pass such orders as it deems fit. No such provision has been made under these Rules. 19. Issue of summons:- Summons to the parties or to the witnesses for appearance or for production of documents or records or things shall be issued by the Registrar under the authority of the Commission, and it shall be in such form as may be prescribed by the Commission. No such provision has been made under these Rules. 20. Conduct of an enquiry: -The Commission may entrust an enquiry in connection with any appeal or complaint pending before it to the Registrar or any other officer for the purpose and the Registrar or such other officer while conducting the enquiry shall have all the necessary powers in....
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....ity to compensate the complainant for "any loss or other detriment suffered". In other words, the compensation has to be linked to the loss or other detriment which is suffered by the complainant. But, by virtue of Regulation 21, the Commission is sought to be empowered to award costs or compensation to the "parties" as it "deems fit" having regard to the facts and circumstances of the case. Thus, while the RTI Act makes a specific stipulation that the Central Information Commission has the power to award compensation to the complainant and that such power is to be exercised in the event of any loss or other detriment which is suffered by the complainant, by virtue of Regulation 21, the Information Commission is supposedly empowered to not only award costs in addition to compensation, but to either of the parties (not limited to the complainant) and for whatever reason it "deems fit" without there being any nexus with the loss or other detriment actually suffered by the complainant. Clearly, Regulation 21 is out of line with the specific power given by the RTI Act in respect of compensation. 34. Another instance of the regulations exceeding the limits of power prescribed under the....
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....e the statute does not provide for the power of review, the Chief Information Commissioner cannot, without any authority of law, assume the power of review or even of a special leave to appeal. Clearly, the said regulation is beyond the contemplation of the Act. Such a regulation is ultra vires the provisions of the Act. 36. We would also like to re-iterate the provisions of Section 19(10) of the RTI Act. Section 19, as we have mentioned earlier, deals with appeals. Sub-section (10) of Section 19 clearly stipulates that the Central Information Commission or the State Information Commission, as the case may be, shall decide the appeal in accordance with such procedure "as may be prescribed". The word 'prescribed' is defined in Section 2(g) of the RTI Act to mean prescribed by the rules made under the RTI Act by the appropriate Government or the competent authority, as the case may be. It has no reference to any regulations made or to be made by the Chief Information Commissioner. Thus, the mandate of the Act is that the Central Information Commission shall decide the appeal in accordance with the rules made under the said Act by the appropriate Government or the competent authority....