TMI Blog2012 (6) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... i Haryana (ROC) and its CPIOs Sh. Raj Kumar Shah and Sh. Atma Shah to assail two similar orders dated 14.07.2009 passed by the Central Information Commission (CIC) in complaint case Nos. CIC/SG/C/2009/000702 and CIC/SG/C/2009/000753. By these similar orders, the appeals preferred by the same respondent-querist were allowed, rejecting the defence of the petitioners founded upon Section 610 of the Companies Act, 1956, and it was directed that the complete information sought by the respondent-querist in his two applications under the Right to Information Act (RTI Act) be provided to him before 25.07.2009. The CIC has also directed issuance of show-cause notice to the petitioner-PIOs under Section 20(1) of the RTI Act asking them to show-cause as to why penalty should not be imposed upon them for not 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, dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formation already available in the public domain would not be treated as 'information held by or under the control of public authority' pursuant to Section 2(j) of the Right to Information Act, 2005. Therefore, the provisions of RTI Act, 2005 would not be applicable for providing inspection/copies of such documents/information to the public." 4. The queries at serial Nos. 4 5, as aforesaid, were also responded to by the PIO. However, I am not concerned with the answers given in response to the said queries, as the legal issue raised in the present petition by the petitioners relates to the interplay between Section 610 of the Companies Act on the one hand, and the provisions of the RTI Act on the other hand. Not satisfied with the response 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. Atm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resaid stand of the ROC and, in particular, reliance was placed on the decision of Sh. A.N. Tiwari, Central Information Commissioner in F.No. CIC/80/A/2007/000112 decided on 12.04.2007. Reference was also made to various orders of Prof. M.M. Ansari, Central Information Commissioner taking the same view. The petitioner has placed all these orders before this Court as well, as Annexure A-7(Colly.) 9. The first submission of learned counsel for the petitioners is that, while passing the impugned orders, the Central Information Commissioner Sh. Shailesh Gandhi has acted with impropriety. Despite the earlier orders of two Central Information Commissioners - taking the view that the information placed by the petitioner-ROC in the public domain and accessible 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be - (1) Clause (a) of sub-section (1) of section 118 rupees ten. (2) Clause (b) of sub-section (1) of section 118 rupee one. (3) Sub-section (2) of section 144 rupees ten. (4) Clause (b) of sub-section (2) of section 163 rupees ten. (5) Clause (b) of sub-section (3) of section 163 rupee one. (6) Sub-section (2) of section 196 rupee one. (7) Clause (a) of sub-section (1) of section 610 rupees fifty. (8) Clause (b) of sub-section (1) of section 610- ( i ) For copy of certificate of incorporation rupees fifty. ( ii ) For copy of extracts of other documents including hard copy of such documents on computer readable media rupees 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... citizens to obtain information held by or under the control of the ROC under the said Act. However, the said provision cannot be exploited or misused by a citizen for the purpose of seeking information, which is available in the public domain and is accessible under Section 610 of the Companies Act by payment of prescribed fee under Rule 21A of the aforesaid Rules. 16. On the other hand, the submission of learned counsel for the respondent-querist is that the provisions of the RTI Act 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 itself. In this respect reference is made to Section 22 of the RTI Act. It is, therefore, argued that a citizen has an option to seek information from the ROC, either by resort to Section 610 of the Companies Act or by resort 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 sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under this Act, certified to be a true copy under the hand of the Registrar (whose official position it shall not be necessary to prove), shall, in all legal proceedings, be admissible in evidence as of equal validity with the original document". 19. The submission of learned counsel for the respondent that only the person who has filed documents with the Registrar of Companies is entitled to inspect the same is wholly fallacious and deserves to be out rightly rejected. This interpretation is clearly not borne out either from the plain language of section 610 or upon a scrutiny of the object and purpose of the said provision. Section 610 enables "any person" to inspect any documents kept by the registrar, being documents "filed or registered by him in pursuance of this Act". The obligation to file and register the documents, which may be submitted by a company registered, or seeking registration with the Registrar of Companies, 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether the mere fact that the said documents/record constitutes "information", is sufficient to entitle a citizen to invoke the provisions of the RTI Act to access the same? 24. The Parliament has defined the expression "right to information" under Section 2(j). The same reads as follows: "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;" 25. The right to information is conferred by section 3 of the RTI Act, which 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, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fined in the Shorter Oxford Dictionary, inter alia, as "prevent from getting away; keep fast, grasp, have a grip on". It is also defined, inter alia, as "not let go; keep, retain". 33. The expression "control" is defined in the Advanced Law Lexicon by P.N. Ramanatha Aiyar 3rd Edition Reprint 2009 and it reads as follows: "(As a verb) To restrain; to check; to regulate; to govern; to keep under check; to hold in restraint; to dominate; to rule and direct; to counteract; to exercise a directing, restraining or governing influence over; to govern with reference thereto; to subject to authority; to have under command, and authority over, to have authority over the particular matter. (Ame. Cyc)" 34. From the above, it appears that the expression "held by" or "under the control of any public authority", in relation to "information", means that information which is held by the public authority under its control to the exclusion of others. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnments, optimum use of limited fiscal resources and the preservation of confidentially of sensitive information; AND WHEREAS it is necessary to harmonise these conflicting interests while preserving the paramountancy of the democratic ideal;" (emphasis supplied). 37. Section 4(1)(a) also lays emphasis on availability of recourses, when it talks about computerization of the records. Therefore, in the exploitation and implementation of the RTI Act, a delicate and reasonable balance is required to be maintained. Nobody can go overboard or loose ones equilibrium and sway in one direction or assume an extreme position either in favour of upholding the right to information granted by the RTI Act, or to deny the said right. 38. The Supreme Court in The Institute of Chartered Accountants of India v. Shaunak H. Satya Others , Civil Appeal No. 7571/2011 decided on 02.09.2011, observed that: "it is necessary to make a distinction in regard to information 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 compe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of these two enactments. Even otherwise, the provisions of the RTI Act would not override the provision contained in Section 610 of the Companies Act. Section 610 of the Companies Act is an earlier piece of legislation. The said provision was introduced in the Companies Act, 1956 at the time of its enactment in the year 1956 itself. On the other hand, the RTI Act is a much later enactment, enacted in the year 2005. The RTI Act is a general law/enactment which deals with the right of a citizen to access information available with a public authority, subject to the conditions and limitations prescribed in the said Act. On the other hand, Section 610 of the Companies Act is a piece of special legislation, which deals specifically with the right of any person to inspect and obtain records i.e. information from the ROC. Therefore, the later general law cannot be read or understood to have abrogated the earlier special law. 43. The Supreme Court in Ashoka Marketing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... logical to presume that Parliament has not repealed or modified the former special Act unless it appears that the special Act again received consideration from Parliament." " 44. Justice G.P. Singh in his well-known work "Principles of Statutory Interpretation 12th Edition 2010" has dealt with the principles of interpretation applicable while examining the interplay between a prior special law and a later general law. While doing so, he quotes Lord Philimore from Nicolle v. Nicolle, [1922] 1 AC 284, where he observed: "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 and by the apparent generality of its language applicable to and covering a number of cases, of which the particular law is but one. This, as a matter of jurisprudence, as understood in England, has been laid down in a great number of cases, whether the prior law be an express statute, or be the underlying common 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 le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proposition. Section 2(j) of the RTI Act speaks of "the right to information accessible under this Act which is held by or under the control of any public authority .". The use of the words "accessible under this Act"; "held by" and "under the control of" are crucial in this regard. The inference from the text of this sub-section and, especially the three expressions quoted above, is that an information to which a citizen will have a right should be shown to be (a) an information which is accessible under the RTI Act and (b) that it is held or is under the control of a certain public authority. This should mean that unless an information is exclusively held and controlled by a public authority, that information cannot be said to be an information accessible under the RTI Act. Inferentially it would mean that once a certain information is placed in the public domain accessible to the citizens either freely, or on payment of a pre-determined price, that information cannot be said to be 'held' or 'under the control of' the public authority and, thus would cease to be an information accessible under the RTI Act. This interpretation is further strengthened by the provisions of the RTI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the public domain suo-motu. 11. These provisions are in consonance with the wording of the Section 2(j) which clearly demarcates the boundary between an information held or under the control of the public authority and, an information not so held, or under the control of that public authority who suo-motu places that information in public domain. It is only the former which shall be "accessible under this Act" - viz. the RTI Act and, not the latter. This latter category of information forms the burden of sub-section 2, 3 and 4 of Section 4 of this Act. 12. The RTI Act very clearly sets the course for the evolution of the RTI regime, which is that less and less information should be progressively held by public authorities, which would be accessed under the RTI Act and more and more of such held information should be brought into the public domain suo-motu by such public authority. Once the information is brought into the public domain it is excluded from the purview of the RTI Act and, the right to access this 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 presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter category. As such, there is no inconsistency between the two provisions which are actually parallel and independent of each other. I therefore hold that no ground to annul the provision of pricing the information which the public authority in this case has done, exists. 16. In my considered view, therefore, the CPIO and the AA were acting in consonance with the provision of this Act when they called upon the appellant to access the information requested and not otherwise supplied to him by the CPIO, by paying the price / cost as determined by the public authority." 49. This view was followed by Sh. A.N. Tiwari in a subsequent order dated 29.08.2007 in " Shri Shriram (Dada) Tichkule v. Shri P.K. Galchor , Assistant Registrar of Companies PIO ". The same view was taken by another Central Information Commissioner namely, Prof. M.M. Ansari in his orders dated 29.03.2006 in Arun Verma v. Department of Company Affairs , Appeal No. 21/IC(A)/2006, and in the case of Sh. Sonal Amit Shah v. Registrar of Companies , Decision 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 cite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not be made a party in such proceedings is settled by the judgment of the Division Bench in this Court in Union Public Service Commission v . Shiv Shambu 2008 IX (Del) 289." 53. It is, therefore, a well-recognised position that the CIC discharges quasi-judicial functions while deciding complaints/appeals preferred by one or the other party before it. 54. It is a well-settled canon of judicial discipline that a bench dealing with a matter respects an earlier decision rendered by a coordinate bench (i.e., a bench of same strength), and is bound by the decision of a larger bench. If this discipline is breached, the same would lead to complete chaos and confusion in the minds of the litigating public, as well as in the minds of others such as lawyers, other members/judges of quasi-judicial/judicial bodies, and the like. Breach of such discipline would result in discrimination and would shake the confidence of the consumers of justice. There can be no greater source of discomfiture to a litigant and his counsel, than to have to deal with diametrically opposite views of coordinate benches of the same judicial /quasi-judicial body. If the emergence of contradictory views is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f law. 57. The consequence of the improper conduct of Sh. Shailesh Gandhi, Central Information Commissioner, is that there are now two sets of conflicting orders- taking diametrically opposite views, on the issue aforesaid. Therefore, unless the said legal issue is settled one way or the other by a higher judicial forum, it would be open to any other Information Commissioner to choose to follow one or the other view. This would certainly lead to confusion and chaos. It would also lead to discrimination between the querists/public authority, who are either seeking information or are defending the action under the RTI Act. One such instance, cited by learned counsel for the petitioner is in the case of Smt. Dayawati v. Office of Registrar of Companies, in CIC/SS/C/2011/000607 decided on 23.03.2012. In this case, once again the same issue had been raised. The Central Information Commissioner Smt. Sushma Singh has preferred to follow the view of Sh. A.N. Tiwari in the case of K. Lall v. Ministry of Company Affairs , Appeal No. CIC/AT/A/2007/00112 dated 14.04.2007. 58. On this short ground alone, the impugned orders of the learned Central Information Commissioner deserve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the querist cannot be provided for one or the other reasons. Merely because the CIC eventually finds that the view taken by the PIO was not correct, it cannot automatically lead to issuance of a show- cause notice under Section 20 of the RTI Act and the imposition of penalty. The legislature has cautiously provided that only in cases of malafides or unreasonable conduct, i.e., where the PIO, without reasonable cause refuses to receive the application, or provide the information, or knowingly gives incorrect, incomplete or misleading information or destroys the information, that the personal penalty on the PIO can be imposed. This was certainly not one such case. If the CIC starts imposing penalty on the PIOs in every other case, without any justification, it would instill a sense of constant apprehension in those functioning as PIOs in the public authorities, and would put undue pressure on them. They would not be able to fulfill their statutory duties under the RTI Act with an independent mind and with objectivity. Such consequences would not auger well for the future development and growth of the regime that the RTI Act seeks to bring in, and may lead to skewed and imbalanced de ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
