9911796707
TMI Blog2012 (6) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... furnishing information as sought by the querist within thirty days. 2. The querist-Shri Dharmendra Kumar Garg filed an application under the RTI Act on 28.05.2009 requiring the PIO of the ROC to provide the following information in relation to company No. 056045 M/s Bloom Financial Services Limited: "1. Who are the directors of this company? Please provide their name, address, date of appointment and copies of consent filed at ROC along with F-32 filed. 2. After incorporation of above company, how many times directors were changed? Please provide the details of documents files and copies of Form 32 filed at ROC. 3. Please provide the copies of Annual Returns filed at ROC since incorporation to 1998 4. On what ground prosecution has been filed. Please provide the details of prosecution and persons included for prosecution. Please provide the copies of Order Sheets and related documents. 5. On what ground the name of Dharmender Kumar Garg has been included for prosecution? 6. Please provide the copies of Form No 5 and other documents filed for increase of capital? 7. How much fee was paid for incre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nse given by the PIO Sh. Atma Shah, as aforesaid, the respondent-querist, without preferring a first appeal, straightway preferred an appeal before the CIC, which has been disposed of vide impugned order dated 14.07.2009 in complaint case No. CIC/SG/C/2009/000702. 5. The respondent-querist raised further queries in respect of the same company vide an RTI application dated 06.06.2009. This application was also responded to by the PIO Sh. Atma Shah on 23.06.2009. In this reply as well, in respect of certain queries, the PIO responded by placing reliance on Section 610 of the Companies Act and gave more or less the same reply, as extracted above. Since the respondent-querist was not satisfied with the said response, he preferred a petition before the CIC, once again by-passing the statutory first appeal provided under the RTI Act. This appeal was registered as complaint case No. CIC/SG/C/2009/000753. 6. Before the CIC, the petitioners contended that the information which could be accessed by any person by resort to Section 610 of the Companies Act is information which is already placed in the public domain, and it cannot be said that the said information is "held by" or is "under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 610 of the Companies Act are out of the purview of the RTI Act, being specifically brought to his notice, he has simply brushed them aside after noticing them by observing that he differs with these decisions. It is submitted that even if Sh. Shailesh Gandhi, Central Information Commissioner, was of the opinion that the earlier views taken by two other learned CICs were not correct, the proper course of action for him to adopt would have been to record his reasons for not agreeing with the earlier views of the Central Information Commissioners, and to refer the said issue for determination by a larger bench of the Central Information Commission. Sitting singly, Sh. Shailesh Gandhi, Central Information Commissioner, could not have taken a contrary view by merely observing that he disagrees with the earlier views. 10. The further submission of learned counsel for the petitioners is that, even on merits, the view taken by the CIC in the impugned orders is illegal and not correct. It is argued that Clause (a) of Section 610(1) of the Companies Act, inter alia, entitles "any person" to inspect any document kept by the Registrar, which may have been filed or registered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upees twenty five per page." 13. Learned counsel submits that there are two kinds of information available with the ROC. The first is the information/documents, which the ROC is obliged to receive, record and maintain under the provisions of the Companies Act, and the second kind of information relates to the administration and functioning of the office of the ROC. The first kind of information, i.e., the returns, forms, statements, etc. received, recorded and maintained by the ROC in relation to the companies registered with it, is all available for inspection, and the certified copies thereof can be obtained by resort to Section 610 of the Companies Act and the aforesaid Rules. He submits that since this information is already in the public domain, same cannot be said to be information held by, or in the control of the public authority, i.e., ROC. He submits that it is the second kind of information, as aforesaid, which a citizen can seek by invoking provisions of the RTI Act from the ROC, and not the first kind of information which, in any event, is already available in the public domain, and accessible to one and all, including non-citizens. 14. He submits that the right to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the provisions of the RTI Act. Merely because Section 610 exists on the Statute Book, it does not mean that the right available under the RTI Act to seek information can be curtailed or denied. 17. Learned counsel for the respondent further submits that under Section 610 of the Companies Act, a person can access only such information which has been filed or registered by him (i.e., the person seeking the information), in pursuance of the Companies Act. He submits that the expression "being documents filed or registered by him in pursuance of this Act" used in Section 610(1)(a) of the Companies Act connect with the words "any person" and not with the words "inspect any documents kept by the Registrar". 18. Section 610 of the Companies Act, 1956 reads as follows: "610. Inspection, production and evidence of documents kept by Registrar. (1) [Save as otherwise provided elsewhere in this Act, any person may]- (a) inspect any documents kept by the Registrar [in accordance with the rules made under the Destruction of Records Act, 1917] being documents filed or registered by him in pursuance of this Act, or making a record of any fact required or authorised to be recorded or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, is that of the Registrar of Companies. It is the Registrar, who makes a record of any fact required or authorized to be recoded or registered in pursuance of the Companies Act, and not "any person". 20. If the submission of learned counsel for the respondent were to be accepted, it would mean that it is the applicant under section 610, who is obliged to make a record of any fact required, or authorized to be recorded or registered in pursuance of the Companies Act, which is not the case. It is also not the obligation of "any person" either to file, or to receive and put on record, or to register, the documents lodged by him in the office of the ROC. That is the obligation of the Registrar of Companies. The whole purpose of section 610 is to bring about full and complete transparency in the matter of registration of companies and in the matter of their accounts and directorship, so that any person can obtain all the relevant information in relation to any registered company. 21. Pertinently, the language used in clause (b) does not support the submission of the respondent at all. If the submission of learned counsel for the respondent were to be accepted, it would mean that whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch reads as follows: "3. Right to information.-Subject to the provisions of this Act, all citizens shall have the right to information." 26. Pertinently, the Parliament did not use the language in Section 3: "Subject to the provisions of this Act, citizens shall have a right to access all information", or the like. Therefore, the right conferred by Section 3 of the RTI Act, which is the substantive provision, means the right to information "accessible under the Act which is held by or under the control of any public authority and includes ..... ..... .....". 27. It is not without any purpose that the Parliament took the trouble of defining "right to information". Parliament does not undertake a casual or purposeless legislative exercise. The definition of "right to information" specifically qualifies the said right with the words: (1) "accessible under this Act", and; (2) "which is held by or under the control of any public authority". 28. The information should, firstly, be accessible under this Act. This means that if there is information which is not accessible under this Act, there is no "right to information" in respect thereof. Consequently, there is no righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers. It cannot mean that information which the public authority has already "let go", i.e. shared generally with the citizens, and also that information, in respect of which there is a statutory mechanism evolved, (independent of the RTI Act) which obliges the public authority to share the same with the citizenry by following the prescribed procedure, and upon fulfillment of the prescribed conditions. This is so, because in respect of such information, which the public authority is statutorily obliged to disseminate, it cannot be said that the public authority "holds" or "controls" the same. There is no exclusivity in such holding or control. In fact, the control vests in the seeker of the information who has only to operate the statutorily prescribed mechanism to access the information. It is not this kind of information, which appears to fall within the meaning of the expression "right to information", as the information in relation to which the "right to information" is specifically conferred by the RTI Act is that information which "is held by or under the control of any public authority". 35. The mere prescription of a higher charge in the other statutory mechanism (in this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation intended to bring transparency, to improve accountability and to reduce corruption, falling under section 4(1)(b) and (c) and other information which may not have a bearing on accountability or reducing corruption. The competent authorities under the RTI Act will have to maintain a proper balance so that while achieving transparency, the demand for information does not reach unmanageable proportions affecting other public interests, which include efficient operation of public authorities and government, preservation of confidentiality of sensitive information and optimum use of limited fiscal resources."(emphasis supplied). 39. Therefore, if another statutory provision, created under any other law, vests the right to seek information and provides the mechanism for invoking the said right (which is also statutory, as in this case) that mechanism should be preserved and operated, and not destroyed merely because another general law created to empower the citizens to access information has subsequently been framed. 40. Section 4 of the RTI Act obliges every public authority, inter alia, to publish on its own, information described in clause (b) of sub-Section (1) of Section 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Limited and Another v. Punjab National Bank and Others, [1990] 4 SCC 406, applied and explained the legal maxim: leges posteriors priores conterarias abrogant, (later laws abrogate earlier contrary laws). This principle is subject to the exception embodied in the maxim: generalia specialibus non derogant, (a general provision does not derogate from a special one). This means that where the literal meaning of the general enactment covers a situation for which specific provision is made by another enactment contained in an earlier Act, it is presumed that the situation was intended to continue to be dealt with by the specific provision rather than the later general one (Benion: Statutory Interpretation p. 433-34). One of the principles of statutory interpretation is that the later law abrogates earlier contrary laws. This principle is subject to the exception embodied in the second latin maxim mentioned above. The Supreme Court in paragraphs 50-52 of this decision held as follows: "50. One such principle of statutory interpretation which is applied is contained in the latin maxim: leges posteriors priores conterarias abrogant, (later laws abrogate earlier contrary. laws). This p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmon or customary law of the country. Where general words in a later Act are capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, that earlier and special legislation is not to be held indirectly repealed, altered or derogated from merely by force of such general words, without any indication of a particular intention to do so." 45. The Supreme Court in R.S. Raghunath v. State of Karnataka & Another, [1992] 3 SCC 335, quotes from Maxwell on The Interpretation of Statutes, the following passage: "A general later law does not abrogate an earlier special one by mere implication. Generalia specialibus non derogant, or, in other words, where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so. In such cases it is presumed to have only general cases in view, and not particular cases which have been alre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of' the public authority and, thus would cease to be an information accessible under the RTI Act. This interpretation is further strengthened by the provisions of the RTI Act in Sections 4(2), 4(3) and 4(4), which oblige the public authority to constantly endeavour "to take steps in accordance with the requirement of clause b of subsection 1 of the Section 4 to provide as much information suo-motu to the public at regular intervals through various means of communication including internet, so that the public have minimum resort to the use of this Act to obtain information." (Section 4 sub-section 2). This Section further elaborates the position. It states that "All materials shall be disseminated taking into consideration the cost effectiveness, local language and the most effective method of communication in that local area and the information should be easily accessible, to the extent possible in electronic format with the Central Public 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." The explanation to the subsection 4 section 4 goes on to further clarify tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... category of information shall be on the basis of whether the public authority discloses it free, or at such cost of the medium or the print cost price "as may be prescribed". The Act therefore vests in the public authority the power and the right to prescribe the mode of access to voluntarily disclosed information, i.e. either free or at a prescribed cost / price. 13. The respondents are right therefore in arguing that since they had placed in the public domain a large part of the information requested by the appellant and prescribed the price of accessing that information either on the internet or through inspection of documents, the ground rules of accessing this information shall be determined by the decision of the public authority and not the RTI Act and the Rules. That is to say, such information shall not be covered by the provisions about fee and cost of supply of information as laid down in Section 7 of the RTI Act and the Rules thereof. 14. It is, therefore, my view that it should not only be the endeavour of every public authority, but its sacred duty, to suo-motu bring into public domain information held in its control. The public authority will have the power and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 2146/IC(A)/2008 dated 31.03.2008, and various others, copies of which have been placed on record. It appears that all these decisions were cited before learned Central Information Commissioner Sh. Shailesh Gandhi. In fact, in the impugned order, he also refers to these decisions and states that "I would respectfully beg to differ from this decision". 50. The Central Information Commission while functioning under the provisions of the RTI Act, no doubt, do not constitute a Court. However, there can be no doubt about the fact that Central Information Commission functions as a quasi-judicial authority, as he determines inter se rights and obligations of the parties in relation to the grant of information, which may entail civil and other consequences for the parties. 51. This Court in Union Public Service Commission v. Shiv Shambhu & Others, L.P.A. No. 313/2007 decided on 03.09.2008, while dealing with the issue whether the Central Information Commissioner should be impleaded as a party respondent in proceedings challenging its order and whether the Central Information Commission has a right of audience to defend its order before this Court in writ proceedings, observed as follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... views of coordinate benches of the same judicial /quasi-judicial body. If the emergence of contradictory views is innocent i.e. due to ignorance of an earlier view, it is pardonable, but when such a situation is created consciously, with open eyes, and after having been put to notice, the judge/authority responsible for the later view should take the blame for creating confusion and for breaching judicial discipline. 55. The Supreme Court in Dr. Vijay Laxmi Sadho v. Jagdish, [2001] 2 SCC 247, deprecated such lack of judicial discipline by observing as follows: "33. As the learned Single Judge was not in agreement with the view expressed in Devilal's case, Election Petition No. 9 of 1980, it would have been proper, to maintain judicial discipline, to refer the matter to a larger Bench rather than to take a different view. We note it with regret and distress that the said course was not followed. It is well-settled that if a Bench of coordinate jurisdiction disagrees with another Bench of coordinate jurisdiction whether on the basis of "different arguments" or otherwise, on a question of law, it is appropriate that the matter be referred to a larger Bench for resolution of the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round alone, the impugned orders of the learned Central Information Commissioner deserve to be quashed and set aside. 59. The reasoning adopted by Shri Shailesh Gandhi, the learned Central Information Commissioner for taking a view contrary to that taken by Sh. A.N. Tiwari in his order dated 12.04.2007 (which has been extracted hereinabove), does not appeal to me. The view taken by Sh. A.N. Tiwari, Central Information Commissioner appeals to this Court in preference to the view taken by Sh. Shailesh Gandhi, Central Information Commissioner in the impugned orders. The impugned orders do not discuss, analyse or interpret the expression "right to information" as defined in Section 2(j) of the RTI Act. They do not even address the aspect of Section 610 of the Companies Act being a special law as opposed to the RTI Act. 60. I may also observe that the approach of the Central Information Commission in seeking to invoke Section 20 of the RTI Act in the facts of the present case is wholly unjustified. By no stretch of imagination could it have been said that PIOs of the ROC had acted "without any reasonable cause" or "malafidely denied the request for information or knowingly gave incorr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
