Central Information Commission
Varun vs Chief Commissioner Of Income Tax (Cca), ... on 23 July, 2018
CENTRAL INFORMATION COMMISSION
Room No. 305, 3rd Floor, CIC Bhavan, Baba Gangnath Marg, Munirka,
New Delhi-110067, website:cic.gov.in
Appeal No.:-CIC/CCITD/A/2017/137424-BJ +
CIC/CCITD/A/2017/137355-BJ
Appellant : Mr. Varun
Respondent : 1. CPIO & Income Tax Officer, Ward-65(2),
Income Tax Department
Office of the ITO, Ward- 65(2), Room No. 204,
2nd Floor, B Block, Pratyaksh Kar Bhawan,
Civic Centre, New Delhi-110001
2. CPIO, Director of Systems, Additional
Director General (Systems), Income Tax
Department, Aayakar Bhawan, Vaishali,
Sector-3, Ghaziabad, U.P. - 201012
Date of Hearing : 20.07.2018
Date of Decision : 23.07.2018
ORDER
RTI 1: CIC/CCITD/A/2017/137424-BJ Date of RTI application 02.02.2017 CPIO's response 16.02.2017 Date of the First Appeal 07.03.2017 First Appellate Authority's response Not on record Date of diarised receipt of Appeal by the Commission 01.06.2017 FACTS:
The Appellant vide his RTI application sought information regarding rules for cancellation/ deletion of PAN card, if advertently issued twice to one person; rules pertaining to issuance of same PAN number to two different persons and other related issues, names, designation and contact details of competent authority concerned with the issues mentioned hereabove.
The CPIO, vide its letter dated 16.02.2017, advised the Appellant to approach the DI (Systems). Dissatisfied with the CPIO's response, the Appellant approached the FAA. The FAA's order, if any, is not on the record of the Commission.
Page 1 of 6
RTI 2: CIC/CCITD/A/2017/137355-BJ
Date of RTI application 30.12.2016
CPIO's response 18.01.2017
Date of the First Appeal 02.02.2017
First Appellate Authority's response Not on Record
Date of diarised receipt of Appeal by the Commission 01.06.2017
FACTS:
The Appellant vide his RTI application sought information regarding the status of the application no. 712200516013876, whether any action had been taken in respect of the aforementioned application, and other issues related thereto.
The CPIO vide its letter dated 18.01.2017 stated that the Appellant's PAN card was in possession of ITO Ward 65(2), and the system did not show its duplication. Dissatisfied with the CPIO's response, the Appellant approached the FAA. The FAA's order, if any, is not on record of the Commission.
HEARING Facts emerging during the hearing:
The following were present:
Appellant: Mr. Varun;
Respondent: Mr. O. P. Jha, ADIT (S)-1(2) and Mr. Antriksh Kumar, ITO Ward 65(2);
The Appellant reiterated the contents of his RTI application and stated that no satisfactory reply had been received by him. It was however acknowledged that the CPIO in both the cases had responded in the matter. Explaining the facts of the case, the Respondent clarified that both the RTI applications were similar in nature and related to a grievance regarding issuance of same PAN number to two different persons by the computer system/RCC Delhi due to similar data of Name, Father's name and date of birth etc. The matter had been examined and necessary rectification was being carried out in accordance with the extant guidelines. A copy of their written submission was hand delivered to the Appellant during the hearing.
The Commission referred to the definition of information u/s 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."Page 2 of 6
Furthermore, a reference can also be made to the relevant extract of Section
2 (j) of the RTI Act, 2005 which reads as under:
"(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 ........"
In this context 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."
7. "....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."
Page 3 of 6The Commission 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. vs. Namit Sharma Review 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. vs. 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 forum. 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."
Moreover, in a recent decision in Govt. of NCT vs. Rajendra Prasad WP (C) 10676/2016 dated 30.11.2017, the Hon'ble High Court of Delhi had held as under:
6. The CIC has been constituted under Section 12 of the Act and the powers of CIC are delineated under the Act. The CIC being a statutory body has to act strictly within the confines of the Act and is neither required to nor has the jurisdiction to examine any other controversy or disputes. 7 Page 4 of 6 . In the present case, it is apparent that CIC had decided issues which were plainly outside the scope of the jurisdiction of CIC under the Act.
The limited scope of examination by the CIC was: (i) whether the information sought for by the respondent was provided to him; (ii) if the same was denied, whether such denial was justified; (iii) whether any punitive action was required to be taken against the concerned PIO; and
(iv) whether any directions under Section 19(8) were warranted. In addition, the CIC also exercises powers under Section 18 of the Act and also performs certain other functions as expressly provided under various provisions of the Act including Section 25 of the Act. It is plainly not within the jurisdiction of the CIC to examine the dispute as to whether respondent no.2 was entitled to and was allotted a plot of land under the 20-Point Programme.
A similar view delineating the scope of the Commission's jurisdiction was also taken by the Hon'ble High Court of Delhi in Sher Singh Rawat vs. Chief Information Commissioner and Ors., W.P. (C) 5220/2017 and CM No. 22184/2017 dated 29.08.2017 and in the matter of Shobha Vijender vs. Chief Information Commissioner W.P. (C) No. 8289/2016 and CM 34297/2016 dated 29.11.2016.
However, on a closer perusal of the available records, it was observed that in Appeal No. CIC/CCITD/A/2017/137424-BJ, instead of forwarding/ transferring the RTI application to the concerned department, the Respondent advised the Appellant to approach the DI (Systems) which was in contravention to Section 6 (3) of the RTI Act, 2005 which stipulates that in such cases transfer of an application shall be made as soon as practicable and not later than 05 days from the date of receipt of the application.
The Hon'ble High Court of Himachal Pradesh in the matter of Block Development Officer, Paonta Sahib vs. State Information Commission and Anr., CWP No. 6072 of 2012 dated 27.06.2018 upheld the following observations made by the State Information Commission, Himachal Pradesh imposing penalty on the CPIO for not receiving and transferring an RTI application u/s 6 (3) of the RTI Act, 2005:
"Thus at this stage of receipt of application at the level of the PIO the question of the jurisdiction was not involved. Even his own conduct by way of returning the application to the applicant proves that he never had in mind the jurisdiction of public authorities vis-a-vis the sought information. Section 20(1) of RTI Act provides for imposition of penalty where State Information Commission at the time of deciding any complaint is of the opinion that the PIO has "without any reasonable cause" refused to receive an application for information. The present PIO also refused to receive the application when he returned the same to be submitted to another PIO whereas he should have transferred the same to concerned PIO as mentioned above.Page 5 of 6
However, keeping in view the first contention of the PIO that original RTI application was returned in original by his subordinates without keeping an office copy is accepted and for this lapse on the part of his subordinate he cannot be penalized. But question arises as to how much weight-age for this contention be given to consider the imposition of penalty. This should not be more than 50% of the penalty worked out for the delay of 56 days after the direction of the Commission and accordingly a penalty of Rs. 7000/- is imposed upon him........................"
DECISION Keeping in view the facts of the case and the submissions made by both the parties, no further intervention of the Commission is required in the matter. The Respondent is however advised to comply with the provisions of the RTI Act, 2005 in letter and spirit.
The Commission also instructs the Respondent Public Authority to convene periodic conferences/seminars to sensitize, familiarize and educate the concerned officials about the relevant provisions of the RTI Act, 2005 for effective discharge of its duties and responsibilities.
The Appeals stand disposed accordingly.
(Bimal Julka) Information Commissioner Authenticated True Copy:
(K.L.Das) Deputy Registrar Page 6 of 6