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TMI Blog2010 (5) TMI 930X X X X Extracts X X X X X X X X Extracts X X X X ..... umentalities 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 boundaries of power and have ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 DDA. For this reason, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 public authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ogued and indexed in a manner 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 implementa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15. Section 19 of the RTI Act deals with appeals. The same 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 decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to compensate the complainant for any loss or other detriment suffered; (c) 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 rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8, which has been set out above, deals with the powers and functions of the Central Information 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 auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power, a delegate cannot sub-delegate its power to another person (See: Pramod K. Pankaj 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs conferred under Section 12(4) of the RTI Act. The impugned Regulations purport to be regulations for the 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Of course, as any other statutory functionary, it undoubtedly has incidental or ancillary powers to effectively exercise 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 elementa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the context otherwise requires, - xxxxx xxxxx xxxxx xxxxx (e) competent authority means - (i) the Speaker 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions can be made only after reciting the source of power whereas administrative instructions are not issued after reciting 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 Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Information Commission (Management) Regulations 2007 Central Information Commission (Appeal Procedure) Rules 2005 The 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case may be; (ii) name and address of the Central Public Information Officer (CPIO) or the Central Assistant Public Information Officer (CAPIO) against whom a complaint is made under Section 18 of the Act, and the name and address of the First Appellate Authority before whom the first appeal was preferred under Section 19(1) of the Act. (iii) particulars of the decision or order, if any, including its number and the date it was pronounced, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority and if he approaches the Commission under Section 18 of the Act, he shall cause a copy of his complaint petition to be served on the concerned Public Authority or the Head of the Office and proof of such service shall be annexed along with the complaint petition. No such provision has been made under these Rules. 11. Presentation and scrutiny of appeal or complaint:- (i) The Registrar shall receive any appeal or complaint petition addressed to the Commission and ensure that (a) the appeal or the complaint, as the case may be, is submitted in prescribed format; (b) that all its contents are duly verified 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) D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed format is liable to be rejected. Provided that the Registrar may, at his discretion, allow an appellant or complainant to file a fresh appeal or complaint in proper form. No such provision has been made under these Rules. 12. Filing of Counter Statement by the Central Public Information Officer or the First Appellate Authority:- After receipt of a copy of the appeal or complaint, the Central Public Information Officer or the First Appellate Authority or the Public Authority shall file counter statement along with documents, if any, pertaining to the case. A copy of the counter statement(s) so filed shall be served to the appellant or complainant by the CPIO, the First Appellate Authority or the Public Authority, as the case may be. No such provision has been made 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In deciding an appeal or a complaint, the Commission may:- (i) receive oral or written evidence on oath or on affidavit from concerned person or persons; (ii) peruse or inspect documents, public records or copies thereof; (iii) inquire through authorized officer further details or facts; (iv) examine or hear in person or receive evidence on affidavit from Central Public Information Officer, Central assistant Public Information Officer or such Senior Officer who decided the first appeal or such person or persons against whom the complaint is made as the case may be; or (v) examine or hear or receive evidence on affidavit from a third party, or an intervener or any other person or persons, whose evidence is considered necessary or relevant. 6. Service of notice by Commission .- Notice to be issued by the Commission may be served in any of the following modes, namely.- (i) service by the party itself ; (ii) by hand delivery (dasti) through Process Server ; (iii) by registered post with acknowledgment due ; or (iv) through Head of Office or Department. No such provision has been made under thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the hearing of an appeal or complaint before the Commission, the Commission may pronounce its decision or order in the matter ex parte. No such provision has been made under these Rules. 16. Date of hearing to be notified:- The Commission shall notify the parties the date and place of hearing of the appeal or complaint in such manner as the Chief Information Commissioner may by general or special order direct. 8. Order of the Commission . - Order of the Commission shall be pronounced in open proceedings and be in writing duly authenticated by the Registrar or any other officer authorised by the Commission for this purpose. 22. Communication of decisions and Orders:- (i) Every decision or order of the Commission shall be signed and dated by the Commissioner or Commissioners who have heard the appeal or the complaint or have decided the matter. (ii) Every decision/order of the Commission may either be pronounced in one of the sittings of the Commission, or may be placed on its website, or may be communicated to the parties under authentication by the Registrar or any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application to the Chief Information Commissioner for special leave to appeal or review of a decision or order of the case and mention the grounds for such a request; (3) The Chief Information Commissioner, on receipt of such a request, may consider and decide the matter as he thinks fit. No such provision has been made under these Rules. 24. Abatement of an Appeal/Complaint:- The proceedings pending before the Commission shall abate on the death of the appellant or complainant. 33. So, it appears that the Chief Information Commissioner has sought to overwrite not only the statutory provisions, but also the statutory rules. This is clearly impermissible. From the above table, it can be seen that by virtue of Regulation 21, the Commission has purportedly been given the power to award such costs or compensation to the parties as it deems fit having regard to the facts and circumstances of the case. Such a power is not provided in the RTI Act. Section 19(8) specifically stipulates that in its decision, the Central Information Commission or the State Information Commission, as the case may be, has the power to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommission in this regard. Clearly, regulation 22 permits something which has not been permitted by the statute or the rules made thereunder. The orders of the Central Information Commission are to be pronounced in open proceedings under the statutory rules, but the regulations seek to alter that position by permitting not only pronouncement in one of the sittings, but also by simply placing orders on the website or communication to the parties. Regulation 22 contains another provision which treats an order pronounced by a single Information Commissioner or by a Division Bench (two Commissioners) or by a Full Bench of three or more Information Commissioners as the decision or order of the Central Information Commission under the Act. There is no such prescription under the RTI Act or the rules validly made thereunder which provides for such Benches of the Central Information Commission. 35. Yet another instance of the complete transgression of the statutory powers is to be found in Regulation 23. The said regulation, inter alia, provides that an appellant or a complainant or a respondent may, notwithstanding that the decision or order of the Commission is final, make an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in a civil court while trying a suit under the Code of Civil Procedure, 1908 in respect of the following matters:- (a) summoning and enforcing the attendance of persons and compel them to give oral or written evidence on oath and to produce the documents or things; (b) requiring the discovery and inspection of documents; (c) receiving evidence on affidavit; (d) requisitioning any public record or copies thereof from any court or office; (e) issuing summons for examination of witnesses or documents; and (f) any other matter which may be prescribed. 39. There is no doubt that while the Central Information Commission is conducting an inquiry into a matter under Section 18 of the said Act, it has the powers to summon and enforce the attendance of persons and compel them to give written or oral evidence on oath and to produce the documents or things. But, it is only for the purposes of giving evidence and to produce documents or things that a person may be summoned by the Central Information Commission. This power of summoning for the purposes of evidence cannot be read as a general power to call any person for any purpose in the course of hearing before the Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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