Central Information Commission
Kriplani M vs Chief Commissioner Of Customs, ... on 28 January, 2020
CENTRAL INFORMATION COMMISSION
Room No. 305, 3rd Floor, CIC Bhavan, Baba Gangnath Marg, Munirka,
New Delhi-110067, website:cic.gov.in
Complaint No.:-CIC/CCUBL/C/2017/128442-BJ
Complainant : Mr. Kriplani M
Respondent : CPIO & Dy. Commissioner (ACC),
Office of the Principal Commissioner of
Customs, Bengaluru
Date of Hearing : 19.01.2018
Date of Decision : 23.01.2018
Date of filing of RTI application 17.06.2016
CPIO's response 25.07.2016
Date of filing the First Appeal Not on record
First Appellate Authority's response Not on record
Date of diarised receipt of Complaint by the Commission 01.05.2017
ORDER
FACTS:
The Complainant vide his RTI application sought information on 05 points regarding Mr. Srinivas- Inspector of Customs, detailed list of Postings/ Departments served from the date of joining duty till the date of RTI application, address and ownership details of present Residential Premises, etc. The CPIO and Dy. Commissioner (ACC), vide its letter dated 25.07.2016 stated that there was no person by the name of Mr. Srinivas- Inspector of Customs, Air Cargo Complex, Bangalore working at their office hence the information sought could be treated as 'Nil'. Dissatisfied by the response of the CPIO, the Complainant approached the Commission. HEARING:
Facts emerging during the hearing:
The following were present:
Complainant: Mr. Kriplani M. through VC;
Respondent: Mr. K. V. Arvind, Sr. Standing Counsel (Customs); Mr. Shivaprakash V. Baddi, Dy. Commissioner/CPIO, AP & ACC, Bengaluru; Mr. M. V. Nagaraj, CPIO/AC and Mr. Ramesh Chandra Tripathi, Inspector Customs (HQ) through VC;
The Complainant reiterated the contents of his RTI application and stated that no satisfactory response was provided to him, in the matter. Explaining that there was only one officer by the name of Mr. Srinivas working in the Respondent Public Authority, the Complainant submitted that the information was denied to him with a malafide intention. It was also submitted that a similar matter had been adjudicated by the Commission in Page 1 of 7 decision no. CIC/DOREV/C/2017/311926-BJ dated 25.09.2017 wherein a Showcause was issued against the CPIO. In its reply, the Respondent re- iterated the response of the CPIO and stated that there was no person by the name of Mr. Srinivas- Inspector of Customs, Air Cargo Complex, Bangalore working at their office. It was also submitted that as per the provisions of the RTI Act, 2005, the CPIO was authorised to provide only such information which was held and available with the Public Authority and that the CPIO was not competent to make an inquiry about details of the officers. It was articulated that if complete details of the officer had been furnished, then an appropriate reply could have been provided. A reference was also made to the judgement of the Hon'ble Supreme Court in the matter of CBSE vs. Aditya Bandopadhyay, Civil Appeal No. 6454 of 2011 in support of their contention.
The Commission was also in receipt of a written submission from the Dy. Commissioner and CPIO, O/o the Pr. Commissioner of Customs, Bangalore dated 17.01.2018 wherein while re-iterating the contents of the RTI application and reply of the CPIO, it was submitted that the applicant had not filed any Appeal with the FAA and had directly approached the Commission. Explaining the background of the case, the Respondent submitted that the complainant was the proprietor of M/s Next Gen Technologies, Bengaluru whose imported goods were interrupted by the Customs Department for smuggling and thereon a case was booked vide OR no. 21/2015-2016. In this connection a show cause notice dated 04.03.2016demanding differential duty and proposing for confiscation of offending goods. The case was pending before the Hon'ble High Court of Karnataka. The Pr. City Civil and Session's Court by its order dated 21.11.2015, had granted anticipatory bail to Shri M. Kriplani with certain conditions. The adjudication of the showcause notice issued was also pending. Explaining that the information was rejected as per Section 8 (1) (j) of the RTI Act, 2005, it was stated that the demand was vague and omnibus and merited denial and same did not serve any purpose. In support of their contention a reference was also made to the decision of the Commission in Nitesh Kumar Tripathy vs. Ministry of Youth Affairs and Sports (CIC/LS/A/2012/000938 dated 14.03.2013). As the information sought pertained to Mr. Srinivas and their office could not find any person by name "Mr. Srinivas" working in their Commissionerate hence the reply was given accordingly. The Complainant however, contested the reply of the CPIO and reemphasized that there was malafide denial of information.
On being queried by the Commission, whether he had filed any First Appeal in the matter, the Complainant replied in the negative and stated that he had no Trust on the FAA mechanism within the public authority. It was submitted that the procedures contemplated under Section 18 and 19 of the Act were completely different from one another and as per Section 18, he could directly approach the Commission without filing any first appeal. The Commission observed that in another matter adjudicated by the Commission in Complaint No. CIC/DOREV/C/2017/311926-BJ dated 25.09.2017 wherein a showcause was issued against the CPIO and a response was received from Mr. Sreedhar, Asst. Commissioner and CPIO on 19.01.2018. However on a closer perusal of the said decision pronounced by Page 2 of 7 the Commission, it was evident that the Respondent/ CPIO denied information since there was no person by the name of Mr. Srinivas posted at Air Cargo Complex, Bangalore. However, during the hearing, the Respondent took a contradictory position and claimed exemption on the ground that the information sought pertained to the Third Party. Thus the said matter (Complaint No. CIC/DOREV/C/2017/311926-BJ) was dealt with accordingly.
As regards the present Complaint, the Commission observed that information available and held with the Public Authority had been shared with the Complainant. In this regard, the Commission referred to the definition of information under Section 2(f) of the RTI Act, 2005 which is reproduced below:
"information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
A reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:
35..... "It is also not required to provide 'advice' or 'opinion' to an applicant, nor required to obtain and furnish any 'opinion' or 'advice' to an applicant. The reference to 'opinion' or 'advice' in the definition of 'information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act."
Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. "....Under the RTI Act "information" is defined under Section 2(f) which provides:
"information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."
Page 3 of 77. "....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him."
Similarly, the High Court of Bombay in Dr. Celsa Pinto, Ex-Officio Joint Secretary (School Education) vs The Goa State Information Commission on 3 April, 2008 (2008 (110) Bom L R 1238) had held as under:
"Section 2(f) -Information means any material in any form, including records, documents, memos e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information."
The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information."
The Commission also observed that the framework of the RTI Act, 2005 restricts the jurisdiction of the Commission to provide a ruling on the issues pertaining to access/ right to information and to venture into the merits of a case or redressal of grievance. The Commission in a plethora of decisions including Shri Vikram Singh v. Delhi Police, North East District, CIC/SS/A/2011/001615 dated 17.02.2012, Sh. Triveni Prasad Bahuguna vs. LIC of India, Lucknow CIC/DS/A/2012/000906 dated 06.09.2012, Mr. H. K. Bansal vs. CPIO & GM (OP), MTNL CIC/LS/A/2011/000982/BS/1786 dated 29.01.2013 had held that RTI Act was not the proper law for redressal of grievances/disputes.
The Hon'ble Supreme Court of India in the matter of Union of India v. Namit Sharma in REVIEW PETITION [C] No.2309 OF 2012 IN Writ Petition [C] No.210 OF 2012 with State of Rajasthan and Anr. v. Namit Sharma Review Page 4 of 7 Petition [C] No.2675 OF 2012 In Writ Petition [C] No.210 OF 2012 had held as under:
"While deciding whether a citizen should or should not get a particular information "which is held by or under the control of any public authority", the Information Commission does not decide a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority. This function obviously is not a judicial function, but an administrative function conferred by the Act on the Information Commissions."
Furthermore, the High Court of Delhi in the matter of Hansi Rawat and Anr. v. Punjab National Bank and Ors. LPA No.785/2012 dated 11.01.2013 held as under:
"6. The proceedings under the RTI Act do not entail detailed adjudication of the said aspects. The dispute relating to dismissal of the appellant No.2 LPA No.785/2012 from the employment of the respondent Bank is admittedly pending consideration before the appropriate fora. The purport of the RTI Act is to enable the appellants to effectively pursue the said dispute. The question, as to what inference if any is to be drawn from the response of the PIO of the respondent Bank to the RTI application of the appellants, is to be drawn in the said proceedings and as aforesaid the proceedings under the RTI Act cannot be converted into proceedings for adjudication of disputes as to the correctness of the information furnished."
With regard to the imposition of penalty on the CPIO/PIO under Section 20 of the RTI Act, 2005, the Commission took note of the ruling of Hon'ble Delhi High Court in W.P.(C) 11271/2009 Registrar of Companies & Ors v. Dharmendra Kumar Garg & Anr. (delivered on: 01.06.2012) wherein it was held:
" 61. Even if it were to be assumed for the sake of argument, that the view taken by the learned Central Information Commissioner in the impugned order was correct, and that the PIOs were obliged to provide the information, which was otherwise retrievable by the querist by resort to Section 610 of the Companies Act, it could not be said that the information had been withheld malafide or deliberately without any reasonable cause. It can happen that the PIO may genuinely and bonafidely entertain the belief and hold the view that the information sought by 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 showcause 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 Page 5 of 7 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 ful fill 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 decisions by the PIOs Appellate Authorities and the CIC. It may even lead to unreasonable and absurd orders and bring the institutions created by the RTI Act in disrepute."
Similarly, the following observation of the Hon'ble Delhi High Court in Bhagat Singh v. CIC & Ors. WP(C) 3114/2007 are pertinent in this matter:
"17. This Court takes a serious note of the two year delay in releasing information, the lack of adequate reasoning in the orders of the Public Information Officer and the Appellate Authority and the lack of application of mind in relation to the nature of information sought. The materials on record clearly show the lackadaisical approach of the second and third respondent in releasing the information sought. However, the Petitioner has not been able to demonstrate that they malafidely denied the information sought. Therefore, a direction to the Central Information Commission to initiate action under Section 20 of the Act, cannot be issued."
Furthermore, the High Court of Delhi in the decision of Col. Rajendra Singh v. Central Information Commission and Anr. WP (C) 5469 of 2008 dated 20.03.2009 had held as under:
"Section 20, no doubt empowers the CIC to take penal action and direct payment of such compensation or penalty as is warranted. Yet the Commission has to be satisfied that the delay occurred was without reasonable cause or the request was denied malafidely.
......The preceding discussion shows that at least in the opinion of this Court, there are no allegations to establish that the information was withheld malafide or unduly delayed so as to lead to an inference that petitioner was responsible for unreasonably withholding it."
The Commission also referred to the decision of the Hon'ble High Court of Delhi in the matter of R.K. Jain v. V.P. Pandey, CPIO, CESTAT, New Delhi in W.P. (C) No. 4785/ 2017 dated 10.10.2017 adjudicated an order of the Commission dated 17.04.2017 whereby the Respondent was cautioned to exercise due care in future and to ensure that correct and complete information is furnished to the RTI applicants. It was decided that:
"2. The grievance of the petitioner is that although the CIC had accepted that there was a delay in providing the necessary information to the petitioner, the CIC had not imposed the penalty as required under Section 20(1) of the Right to Information Act, 2005. It is well settled that imposing of the penalty is a discretionary measure. In Anand Bhushan v. R.A. Haritash: ILR (2012) 4 Delhi 657 Page 6 of 7 a division bench of this Court had considered the question whether the levy of penalty was discretionary and held as under..........
3. In this case it is apparent that the CIC had in its discretion considered that a order cautioning the CPIO would be sufficient. This Court is not inclined to interfere with such exercise of discretion."
Furthermore, the Hon'ble High Court in the matter of R.K. Jain v. CIC and Anr. in W.P.(C) 4152/2017 dated 10.10.2017 had held as under:
"5. The question whether the CIC had the discretion to restrict the penalty or whether penalty as provided under Section 20 of the Act is mandatory, is no longer res integra. The said question was considered by a Division Bench of this Court in Anand Bhushan v. R.A. Haritash:
ILR (2012) 4 Delhi 657 and the relevant extract of the said decision is set out below....
6. In view of the above, this Court finds no reason to interfere with the discretion exercised by the CIC. The petition is, accordingly, dismissed."
The Complainant could not substantiate his claims regarding malafide denial of information by the Respondent or for withholding it without any reasonable cause.
DECISION Keeping in view the facts of the case and the submissions made by both the parties and in the light of the aforesaid judgments, no further intervention of the Commission is warranted in the matter. For redressal of grievance, the Complainant is required to approach an appropriate forum.
The Complaint stands disposed accordingly.
(Bimal Julka) Information Commissioner Authenticated True Copy:
(K.L.Das) Deputy Registrar Page 7 of 7