Rti help
Querist :
Anonymous
(Querist) 19 December 2011
This query is : Resolved
Two RTI applications in NHPC ltd. were filed. Firstone in Sept 2011. Its reply was recd. on 28.10.2011. Some informations were not provided referring section 7(9) . I could not file first appeal as I have been tranferred due to this RTI.
Second application was filed in Oct 2011 and all informations denied referring section 7(9). The last date of this for first appeal was 14.12.2011 so I had sent the appeal to FAA on his e-mail Id. I had not sent any hard copy.
Now please tell me can I file complaint to CIC directly for the first application?
If appeal for second application which is sent electronically, is not accepted what sholud be done?
jeevan1950
(Expert) 19 December 2011
Time is important ! please persue ur RTI application promptly.please ask the information again.
Advocate. Arunagiri
(Expert) 19 December 2011
You have to follow the procedure in RTI appln and appeal.
Only if the FAA is not responding to your FA you can go the CIC. Email communication is not permitted in RTI.
Try from the square one.
Shonee Kapoor
(Expert) 20 December 2011
Agreed with Arunagiri, you can not by pass FAA
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Querist :
Anonymous
(Querist) 20 December 2011
But I have seen on net that complaint can be made directly to CIC also
Advocate. Arunagiri
(Expert) 20 December 2011
Contacting the CIC directly is not possible, RTI Act does not permit you to do so, even if NHPC allows you.
Querist :
Anonymous
(Querist) 21 December 2011
I donot whether NHPC allows or not. What I have seen/understood from internet I am placing below. All the honourable experts are requested to go through the same and then advice me whether I have understood correctly or not?
(http://www.rtiindia.org/forum/76170-direct-complaint-can-filed-without-going-first-appeal.html)
Direct Complaint can be filed without going for first Appeal
STATE INFORMATION COMMISSION, PUNJAB
CC No. 461 of 2011
Shri Kesar Singh s/o Late Shri Baldev Singh, -------------Complainant.
Vs.
PIO , Punjab and Haryana High Court, Chandigarh. -------------Respondent.
Written Pleadings from Public on Issue whether an information-seeker can approach the State Information Commission directly under S. 18 of RTI Act , 2005 without first appealing to the first appellate authority
Respectfully showeth ,
1.that this Hon’ble Commission had invited written pleadings from public on the issue whether an information-seeker can approach the State Information Commission directly under S. 18 of RTI Act , 2005 without first appealing to the first appellate authority .
2.that it is humbly submitted that the cardinal principle of construction of any statute is to maximize the scope of provisions of statute for the benefit of those for whom it has been enacted and for the purpose for which it has been enacted by the parliament . An interpretation which narrows down the scope of statute, is clearly bad in law .
Citations : Cardinal rule of interpretation of Law
1. A Division Bench of HIGH COURT OF PUNJAB AND HARYANA in C.W.P. No.16681 of 2005 in matter of M/s Coca Cola India Inc.Vs.Assistant Commissioner of Income Tax, Gurgaon & others. Have held in para 27 :
“The cardinal rule of interpretation, however, is that words should be read in their ordinary, natural and grammatical meaning subject to this rider that in construing words in a constitutional enactment conferring legislative power the most liberal construction should be put upon the words so that the same may have effect in their widest amplitude. (underlining supplied).”
1. MADRAS HIGH COURT IN M/S.HI-TECH MINERAL INDUSTRIES VS THE TAMIL NADU ELECTRICITY in W.P.NOs. 6968 , 6969 of 2008, Have held in para 21 :
“ Similar note was struck by this Court in Keshavji Ravji & Co. v. CIT2 where three-Judge Bench went on to observe: (SCC p.242, para 11) _As long as there is no ambiguity in the statutory language, resort to any interpretative process to unfold the legislative intent become impermissible. The supposed intention of the legislature cannot then be appealed to to whittle down the statutory language which is otherwise unambiguous. If the intendment is not in the words used it is nowhere else. The need for interpretation arises when the words used in the statute are, on their own terms, ambivalent and do not manifest the intention of the legislature.”
1.INTERPRETATION OF PROVISIONS OF S.18 AND S.19 OF RTI ACT
Literal Interpretation of S.18 of RTI Act
Opening para of Section 18.(1) reads ….
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—
The words “Shall “and “duty” makes it mandatory on part of an Information Commission to receive and Inquire into a Complaint u/s 18 of RTI Act . These two words bind the Information Commission , without giving it a discretion , to receive and Inquire into a Complaint u/s 18 of RTI Act .
English Dictionary defines “Any” as “Every” .
“ From any person “ would mean “ From every person “.
Reproduced Sections 18 (1) (a) to Sections 18(1)(f):
Section 18(1)(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 Assistant Public Information Officer, as the case may be, has refused to accept his or her application for information or appeal under this Act for forwarding the same to the Central Public Information Officer or State Public Information Officer or senior officer specified in sub-section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be;
Section 18(1)(b) .. who has been refused access to any information requested under this Act;
Section 18(1)(c) .. who has not been given a response to a request for information or access to information within the time limit specified under this Act;
Section 18(1)(d) .. who has been required to pay an amount of fee which he or she considers unreasonable;
Section 18(1)(e) .. who believes that he or she has been given incomplete, misleading or false information under this Act; and
Section 18(1)(f) .. in respect of any other matter relating to requesting or obtaining access to records under this Act.
Interpretation of Sections 18 (1) (a) to Sections 18(1)(f):
Sections 18 (1) (a) to Sections 18(1)(f) define the pre-conditions , any or all of which , if met , make it mandatory on part of the Information Commission to receive and inquire into Complaints from every such person.
There are no other pre-conditions , other than those described under Section 18 (1) (a) to Section 18(1)(f) of RTI Act , to qualify for lodging a Complaint u/s 18 with Information Commission . There is nothing to suggest that such person must first exhaust remedy of First Appeal before approaching Information Commission with a Complaint u/s 18 of RTI Act .
Reproduced Section 18(2)…
Where the Central Information Commission or State Information Commission, as the case may be, is satisfied that there are reasonable grounds to inquire into the matter, it may initiate an inquiry in respect there of .
Interpretation ofSection 18(2)…:
After receiving a complaint , if the Information Commission decides that if any or all of the grounds described in Sections 18 (1) (a) to Sections 18(1)(f) are met , it shall go ahead with such Inquiry . The word “ may “ here has to be interpreted in light of words “ shall “ and “duty” occurring in opening para of Section 18.(1) which make it mandatory on part of Information Commission to receive and Inquire into a Complaint u/s 18 of RTI Act . Otherwise if it is interpreted as “ may not “ , it will defeat the very intention of parliament behind s.18 . It would be an error of construction if Grounds of Inquiry described in Sections 18 (1) (a) to Sections 18(1)(f) are made out but still Inquiry not carried out .
Therefore , once the Information Commission has judiciously concluded that perquisite(s) as laid u/s 18(1) of RTI Act are met , it will conduct Inquiry using powers provided u/s 18(3) and 18(4) of RTI Act .
Literal Interpretation of S.19(1) of RTI Actpurely according to literal , ordinary or natural meaning of words contained in it .
Reproduced Section 19(1) of RTI Act …….
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.
Interpretation of Section 19(1) of RTI Act …….:
Any person ( every person ) “may” “prefer” an Appeal to Appellate Authority within the concerned Public Authority if he 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 CPIO or SPIO .
Here word “May” and “Prefer” need to be interpreted to give a purposeful meaning to this provision of the Act that is in consonance with intention of the Act .
Citations Relied : may" includes "may not"
1. A Division Bench of Hon’ble High Court of Allahabad in Criminal Misc. Writ Petition No. 1938 of 2005 have held :
“ The word "may" has been specifically incorporated under Section 433 for the appropriate Government to commute sentence. We are well aware by the interpretation of law that "may" includes "may not". Therefore, one part is crystal clear that appropriate Government can not be compelled to pass a favourable order . “
Therefore it infers that an RTI Applicant can not be compelled to go for First Appeal before receiving his Complaint u/s 18 of RTI Act .
1.Hon’ble High Court of Allahabadin First Appeal No. 582 of 1998 in matter of Hemant Kumar Agrahari vs Luxmi Devi have held in para 21 of Judgment :
“. The phrase 'which may belong jointly'-because of the use of the word may- includes within it penumbra the property which may not belong jointly to the parties.”
The word “Prefer” in English Dictionary means “ like better “ [than something else ] . Word “Prefer” provides a choice to select between two or more entities . It rules out any binding on the person to follow A Particular choice / remedy . So it would mean that every Applicant has a choice to go for First Appeal [ over other remedy (ies) available to him ] . But it certainly does not translate into a pre-condition that must be met before approaching Information Commission with Complaint u/s 18 .
A combined reading of s. 18 with s. 19(1) of RTI Act
The Complaint u/s 18 before Information Commission is a comprehensive remedy . The filing of complaint is not bound by length of time and the grounds / mischiefs it covers are comprehensive and exhaustive . It includes supply of Information covered under the Act , and all other remedies against violation of the provisions of the Act as well . Section 18 is meant to provide complete check , control over the functioning of the Public Authority in relation to its functions under RTI Act .
The availability of provision of Complaint u/s 18 to the RTI Citizen is , therefore , an effective deterrent against violations of the provisions of RTI Act by the PIO and Public Authority . Seeing the very intent and spirit of the Act to bring accountability and transparency in functioning of public Authorities [ including RTI functioning ] , the remedy of Complaint u/s 18 has to be made available to RTI Applicant all the time after the PIO has defaulted on provisions of the Act in relation to RTI Application of the citizen .
The pre-requisites for launching first Appeal u/s 19(1) are part of s.18 too . So it infers that a person who is eligible for a Complaint u/s 18 is eligible for first Appeal u/s.19(1) too or vice a versa . Therefore , at that stage , the RTI Applicant has two remedies available to him in form of Complaint u/s 18 and first Appeal u/s 19(1) of RTI Act . He has a unfettered choice to avail of any one of the two . He may go either with a lengthy more comprehensive remedy in form of Complaint u/s 18 for or he may prefer First Appeal over the Complaint hoping for early Information .
Citations Relied : the aggrieved person has the right to choose the forum
1. Hon’ble Supreme Court has ruled in [ LIC of India vs. R. Suresh, reported in AIR 2008 SCW 2793 para 12 ] :
“ It is settled law that if statute provides more than one remedy, the aggrieved person
has the right to choose the forum competent to remedy his grievance . “
1.Hon’ble High Court of Calcutta , in matter of Tata Motors Limited & anr. Vs. State of West Bengal & ors. , in W.P. No. 1773 of 2008 , have held :
” Mr. Chowdhury is correct in his submission that once a State Public Information Officer rejects an application for information or refuses to act on such application within the time limit prescribed therefor, the aggrieved information seeker has two remedies under the Act. One of these is to approach the Appellate Authority under Section 19(1). The other is to bring it to the notice of the State Information Commission by filing a complaint that request for information under the Act has been refused. The refusal may arise out of inaction; it may also arise out of rejection of an application. There is also substance in the submission of Mr. Chowdhury that in case of refusal to give access to information, the statute provides a choice to the information seeker and that in exercise of such choice, he approached the State Information Commission with a complaint. ………It is settled law that if statute provides more than one remedy, the aggrieved person has the right to choose the forum competent to remedy his grievance [see Dhannalal Vs. Kalawati Bai, reported in (2002) 6 SCC 16 and LIC of India vs. R. Suresh, reported in AIR 2008 SCW 2793]. A complaint against refusal to furnish information being statutorily recognised, the State Information Commission would be perfectly justified in enquiring into it as part of its duty as mandated by Section 18 (1) of the Act. “
Citations Relied : RTI Applicant can approach Information Commission with direct Complaint u/s 18 if conditions prescribed u/s 18(1) are satisfied
1.A division bench of Hon’ble Allahabad High Court , in Writ Petition No. 3262 (MB) of 2008 , have held in para 73 :
“ Section 18 of the Act is a provision, which allows the applicant who has been refused information or who believes that complete information has not been given, or who has been denied the information by simply delaying the information, to make a complaint to the Commission, Central or State, as the case may be, who would make an enquiry into the said complaint. …”
1.High Court of Kerala at Erranakulum in W.P.(C) No. 31039 OF 2009 in matter of .Sajikumar Vs Kerala State Information Commission have held in para 4 :
“ The mere fact that a person seeking information is entitled to prefer an appeal on the 31st day after his application for information was submitted is not a ground to hold that the State Information Commission is denuded of its power to enquire into a complaint that there has been no response to the request for information or access to information within the time limit of 30 days. It is open to the person seeking information to move the State Information Commission complaining about the inaction of the State Public Information Officer, instead of filing an appeal. The remedies are concurrent and the mere fact that an appeal lies after the expiry of 30 days to the first appellate authority is no ground to hold that the State Information Commission cannot exercise the jurisdiction vested in it under Section 18 of the Act, before the first appeal is disposed of. I therefore overrule the petitioner's contention that the third respondent ought to have filed an appeal under Section 19 of the Act before the first appellate authority instead of straight away moving the State Information Commission. “
The Mischief Interpretation – S.18 VERSUS S.19(1) of RTI Act , 2005
s.18 corrects the deficiency ( mischief ) in s.19 of RTI Act by providing powers to Inquire u/s 18(3) with the help of trappings of a civil court , the power which is lacking in s.19 of RTI Act . This power gives the Information Commission full control over the functioning of a Public Authority in relation to its functions under RTI Act .
PRAYER
It is , therefore , humbly prayed that this Hon’ble Information Commission may continue with its present practice of receiving direct Complaints u/s 18 of RTI Act . It is further prayed every such received Complaint may kindly be Inquired into comprehensively and the result be made part of a well-speaking Order .
Place : Chandigarh Citizen Applicant
Date : 18.07.2011
Dr. Sanjeev Malhotra
Relied citations :
•HIGH COURT OF PUNJAB AND HARYANA in C.W.P. No.16681 of 2005 in matter of M/s Coca Cola India Inc.Vs.Assistant Commissioner of Income Tax, Gurgaon & others.
• MADRAS HIGH COURT IN M/S.HI-TECH MINERAL INDUSTRIES VS THE TAMIL NADU ELECTRICITY in W.P.NOs. 6968 , 6969 of 2008, Have held in para 21 :
•Hon’ble High Court of Allahabad in Criminal Misc. Writ Petition No. 1938 of 2005
•Hon’ble High Court of Allahabadin First Appeal No. 582 of 1998 in matter of Hemant Kumar Agrahari vs Luxmi Devi
•Hon’ble Supreme Court has ruled in [ LIC of India vs. R. Suresh, reported in AIR 2008 SCW 2793
•Hon’ble High Court of Calcutta , in matter of Tata Motors Limited & anr. Vs. State of West Bengal & ors. , in W.P. No. 1773 of 2008
•Hon’ble Allahabad High Court , in Writ Petition No. 3262 (MB) of 2008
•High Court of Kerala at Erranakulum in W.P.(C) No. 31039 OF 2009 in matter of .Sajikumar Vs Kerala State Information Commission
