Central Information Commission
Subrata Guha Ray vs Chief Commissioner Of Customs, Kolkata ... on 20 December, 2019
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.:- CIC/CCUKL/A/2018/134692-BJ
Mr. Subrata Guha Ray
....अपीलकता/Appellant
VERSUS
बनाम
1. CPIO
Asstt. Commissioner of Customs
Special Intelligence Unit, Custom House
Office of the Commissioner of Customs (Airport &Administration)
Custom House, 15/1, Strand Road
Kolkata - 700001
2. CPIO
Assistant Commissioner
Office of the Chief Commissioner of Customs
Custom House, 15/1, Strand Road
Kolkata - 700001
... ितवादीगण /Respondent
Date of Hearing : 16.12.2019
Date of Decision : 19.12.2019
Date of RTI application 23.11.2017
CPIO's response 30.01.2018/
21.02.2018
Date of the First Appeal 27.01.2018
First Appellate Authority's response 14.03.2018
Date of diarised receipt of Appeal by the Commission 31.05.2018
ORDER
FACTS:
The Appellant vide his RTI application sought information on 10 points regarding the detailed status report and action report of File No. S31-181(COMP)/ 2017 SIU of the personal hearing of NHRC Case no. 401/25/15/2012 dated 12.03.2012; the copy of his statement on the said file and other issues thereto.Page 1 of 4
The (CPIO & Assistant Commissioner of Customs, SIU, Custom House, Kolkata), vide its letter dated 30.01.2018 provided a response on point no. 01 to 06. Furthermore, the CPIO & Assistant Commissioner, Custom House, vide its letter dated 21.02.2018 provided response on point nos. 04 to 06. Dissatisfied with the response of the CPIO, the Appellant approached the FAA. The FAA and Jt. Commissioner of Customs (A&A), Kolkata, vide its order dated 14.03.2018, upheld the response of the CPIO & Assistant Commissioner of Customs (SIU/Drawback ACC) against the query no. 01 to 03, 06 and 07, 08 & 10. With regard to point no. 04, 05 and 09, Section 2(f) of the RTI Act was referred. Furthermore, it was stated that no obligation could be cast on the concerned CPIOs to provide any further information to the Appellant in the instant case beyond what they had already given.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Absent;
Respondent: Mr. Jitesh Kumar, Inspector (Prev.), Mr. S. K. Biswas, AC, Mr. Randhir Kumar, PIO and Mr. S. Mukherjee, CPIO, through VC The Appellant remained absent during the hearing. Mr. Anshuman Sarkar, DIO at NIC studio at Hooghly confirmed the absence of the Appellant. The Commission was in receipt of a written submission from the Appellant dated 16.12.2019 (12:32 Pm) wherein he stated that due to CAB and NRC, he would not be able to attend the hearing as train and bus services were stopped. He therefore requested to adjourn the hearing on another date, if possible. As regards the instant Appeal, the Appellant also stated that the reply of Sl. No. 1 and 2 had been forwarded by the Commissioner of Customs (Kolkata) Airport) to Chief Commissioner of Customs (Kolkata) but no reply had been provided to him despite the Chief Commissioner of Customs and Commissioner of Customs existing in the same unit. The Commission however draws the attention of the Appellant to para 7 of the notice of hearing which clearly mentioned that in default of appearance on the time and date mentioned in the notice of hearing, the cases shall be heard and decided in their absence and that no adjournment or review could be sought. The Respondent (O/o the Chief Commissioner of Customs, Kolkata) stated that information on only points 04 to 06 pertained to them hence an appropriate reply was provided to him. The FAA also concurred with the reply of the CPIO. The CPIO, SIB present during the hearing also stated that a point wise response on queries pertaining to their Division was provided to the Appellant which was also concurred by the FAA vide order dated 14.03.2018. In his Second Appeal, the Appellant had mentioned that all the queries raised by him pertained to the O/o the Chief Commissioner of Customs, Kolkata. However, neither was the Appellant present during the hearing nor did he explain in his Second Appeal as to how all the queries pertained to the O/o the Chief Commissioner of Customs, Kolkata only.
The Commission referred to the definition of information u/s 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 4
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 and Anr. Vs. Aditya Bandopadhyay and Ors), 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."
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 Page 3 of 4 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 Appellant was not present to contest the submissions of the Respondent or to substantiate his claims further.
DECISION:
Keeping in view the facts of the case and the submissions made by the Respondent, on further intervention of the Commission is warranted in the matter.
The Appeal stands disposed accordingly.
(Bimal Julka) (िबमल जु का)
(Information Commissioner) (सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
(K.L. Das) (के .एल.दास)
(Dy. Registrar) (उप-पंजीयक)
011-26182598/ [email protected]
दनांक / Date: 19.12.2019
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