Central Information Commission
Madhavarao K vs Office Of The Controller General Of ... on 16 August, 2023
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/CGPDT/A/2022/644410
Madhavarao K ......अपीलकता /Appellant
VERSUS
बनाम
1. CPIO,
Office of the controller General of
Patents, Desings & Trade Marks,
RTI Cell, Patent Office Intellectual Property
Building, G.S.T Road, Guindy,
Chennai-600032, Tamilnadu.
2. The CPIO,
Trade Marks Registry, RTI Cell,
Bhoudik Sampada Bhawan, Antop Hill,
Mumbai-400037, Maharashtra. .... ितवादीगण /Respondent
Date of Hearing : 23/06/2023
Date of Decision : 23/06/2023
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 16/04/2022
CPIO replied on : 12/05/2022
First appeal filed on : 13/05/2022
First Appellate Authority order : 27/05/2022
Second Appeal dated : NIL
1
Information sought:
The Appellant filed an RTI application dated 16.04.2022 seeking the following information:
"1. Has the Controller constituted the Opposition Board with respect to opposition of the patent bearing number 332522 tiled by Mr. Arumugam.
2. Please share the order constituting the Opposition Board issued by the Controller with respect to patent number 332522.
3. Has the Opposition Board issued its recommendations in the opposition filed by Mr. Arumugam against the patent bearing number 332522
4. Please share the recommendations issued by the Opposition Board with respect to the opposition of the patent bearing number 332522."
The CPIO furnished a reply to the appellant on 12.05.2022 stating as under:
"The information pertaining to any patent cannot be provided under RTI Act as there is a provision u/s 153 of The Patents Act,1970 to obtain the required Information by making a request to the controller with prescribed fee."
Being dissatisfied, the appellant filed a First Appeal dated 13.05.2022. FAA's order dated 27.05.2022 denied the information sought by the Appellant by invoking Section 8(1)(d) of RTI Act.
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Represented by Advocate Kavya S present through audio-conference.
Respondent: Dr. V. Parmala Darsini, Deputy Controller of Design (Chennai) & CPIO along Nilesh Patil, Examiner of Patents & Design (Mumbai) present through audio- conference.
The Rep. Of Appellant raised the following arguments in the instant Appeal -2
"...3. It is submitted that the provision, Section 25(3) of the Patents Act, based on which information was sought by the RTI Applicant reads as follows: "25(3 )(b) On receipt of such notice of opposition. the Controller shall, by order in writing, constitute a Board to be known as the Opposition Board consisting of such officers as he may determine and refer such notice of opposition along with the documents to that Board for examination and submission of its recommendations to the Controller."
4. It is submitted that the information sought by the RTI Applicant was primarily the order passed by the Controller under Section 25(3) constituting the opposition board in proceedings relating to patent number 332522, which are public proceedings. It is submitted that all documents relating to these proceedings except the order sought through the RTI application are available online. The documents available online include the opposition board's report, but do not include the order in writing constituting the opposition board, which is also a public document.
5. It is submitted that the CPIO rejected this request for information on 12th May 2022 stating that the said information cannot be provided because the information should be sought under Section 153 of the Patents Act, which provides a mechanism to inspect, and sock information relating to patents. The CPIO's response reads as follows: "Reply to points 14: The information pertaining to any patent cannot be provided under wri Act as there is a provision Ws 153 of The Patents Act,1970 to obtain the required information by making a request to the controller with inscribed fee."
5. It is submitted that aggrieved by the response of the CPIO, the RTI Applicant filed an appeal before the FAA citing a decision of the Honourable CIC, which clearly held that even if a mechanism of applying for information is available under a specific statute, a person may choose to apply for the same information under the RT1 Act also. In other words, the Honourable CIC held that if two mechanisms of applying for information are available, one under the specific statute, and another under the RTI Act, the applicant may choose to apply for information under the RTI Act, and the public authority is required to provide the information under the said Act. The case cited by the RTI Applicant is: Kamal Kishore Arora vs Department Of Industrial Policy & others, Decided by the Honourable CIC on 26 April, 2022 (File No.: C1C/DOIPP/A/2020/672232), available at: http://indiankanoon.org/doc 177266213/, which cited the Judgment of the 3 Honble Supreme Court in the matter of ICSI Vs Paras Jain, Civil Appeal No. 5665/2014.
6. It is submitted that to the RT1 Applicant's utter surprise and shock, the FAA instead of addressing the ground based on which the CPIO rejected the information, raised a new ground to deny the information sought by the RTI Applicant. The FAA on first appeal rejected the information stating that the information is confidential, and that it cannot be provided under Section 8(1)(d) of the RTI Act. The response of the FAA reads as follows:
"The submissions in the appeal have been given careful consideration. The information sought by the applicant are not covered under sec 153 of the Patents Act, 1970 and are exempted under sec 8(I)(d) of the RTI Act. Hence, the appeal is disposed off."
8. It is submitted that Section 8(1)(d) of the RTI Act based on which the FAA rejected the information reads as follows:
xxx c. RTI Applicant's Submissions A. The FAA cannot raise a new ground at the appellate stage I. The RTI Applicant humbly submits that it is a well-established principle of law that a new ground cannot be raised at the appellate stage, and that if any ground is raised, the RTI Applicant must be given an opportunity to respond to the same. Raising a new ground is not only legally invalid and untenable, but also violates principles of natural justice of the RTI Applicant.
12. It is submitted that in Chitturi Subbanna v. Kudapa Subbanna [AIR 1965 SC 1325], the Hon'ble Supreme Court observed as follows:
Considerations of public policy require that a successful party should not, at the appellate stage, be faced with new grounds of attack after having repulsed the original ones. The proper function of an appellate court is to correct an error in the judgment or proceedings of the court below and not to adjudicate upon a different kind of dispute -a dispute that was never taken before the court below.... " 13. Based on the afore-mentioned case, it is humbly submitted by the RTI Applicant that the FAA's act of citing a new ground at the appellate stage is invalid and untenable, and violates principles of natural justice. If the said ground is to be raised, the RTI Applicant should have been given an opportunity to respond, which was never given by the FAA to the RTI Applicant. This action of the 4 FAA is therefore arbitrary, unreasonable, and violates well established principles of natural justice. Also, it is submitted that by raising a new ground, the FAA has admitted that the ground raised by the CPIO to reject the information sought is invalid.
13. It is submitted that if two modes of applying for information are available to an RTI Applicant, the applicant may choose to file an application under one of them such as the RTI Act for the said information. In the present cast, the RTI Applicant applied for information under the RTI Act though the Patents Act also provides for applying for some types of information under Section 153. It is submitted that the application under the RTI Act cannot be rejected by CPIO just because another option is available under another statute such as the Patents Act as held by the Honourable CIC in Kamal Kishore Arora vs Department Of Industrial Policy & others, Decided by the Honourable CIC on 26 April. 2022 (File No.:
CIC/DOIPP/A/2020/672232), available at:
http://indiankanoon.org/doc/77266213/, which in relevant part stated as follows:
"In view of the totality of the circumstances discussed above, the Commission directs the CPIO to revisit the RTI Application and provide the information sought for therein to the extent that is accessible to the public under the Copyrights Act, 1957. At this stage, the CPIO is directed to provide the said information free of cost to the Appellant upto 100 pages and beyond this limit, fees may be charged as per Rule 4 of RTI rules, 2012. In this regard, attention of the CPIO is drawn towards a judgment of the Hon'ble Supreme Court in the matter of ICSI Vs Paras Jain, Civil Appeal No. 5665/2014 wherein the Court had held as under in the context of supply of information under RTI Act vis-a-vis extant ICSI guidelines: "12. Be that as it may. Guideline no.3 of the appellant does not take away from Rule 4, The Right to Information (Regulation of Fees and Cost) Rules. 2005 which also entitles the candidates to seek inspection and certified copies of their answer scripts. In our opinion, the existence of these two avenues is not mutually exclusive and it is up to the candidate to choose either of the routes. Thus, if a candidate seeks information under the provisions of the Right to Information, then payment has to be sought under the Rules therein, however, if the information is sought under the Guidelines of the appellant, then the appellant is at liberty to charge the candidates as per its guidelines."
xxx C. The information requested by the RTI Applicant relates to public interest.5
26. The RTI Applicant humbly submits that patents have a direct relationship with public interest, and any information relating to patents relates to public interest.
Therefore, the information sought in the present case is also within the scope of exclusion under Section 8(IXd) based on public interest, which deserves its disclosure. In other words. the RTI Applicant humbly submits that Section 8(1)(d) requires public authorities to disclose even exempted information if it relates to public interest, and the information sought by the RTI Applicant qualifies as such.
27. It is submitted that Section 83 of the Patents Act specifically states that patents are directly related to public interest, and that public interest concerns form an important aspect of working of patents. Relevant portion of Section 83 reads as follows: "83. GENERAL PRINCIPLES APPLICABLE TO WORKING OF PATENTED INVENTIONS.
Without prejudice to the other provisions contained in this Act, in exercising the powers conferred by this Chapter, regard shall be had to the following general considerations, namely:--
(c) that the protection and enforcement of patent rights contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations; (d) that patents granted do not impede protection of public health and nutrition and should act as instruments to promote public interest specifically in sectors vital importance for socio-economic and technological development of India;" 28. It is submitted that Section 83 of the Patents Act clearly provides that patents are meant to further public interest, and that social and public welfare is at the core of patent law. In Novanis Vs. UOI, the Honourable Supreme Court reiterated the public interest aspect of patent law, and pointed out the importance of public interest and health while dealing with patents. (Novanis Ag vs Union Of India & Ors, Decided by the Supreme Court on 1 April. 2013, CIVIL APPEAL Nos. 2706-2716 OF 2013).
28. It is submitted that in Central Public Information Officer. Supreme Court of India v. Subhash Chandra Agarwal, MANU/SC/1561/2019, the Hon'ble Supreme Court while discussing public interest exception in Section 8(1)(d) of the RTI Act, 2000 stated as follows.
6"61.... Pertinently, information including trade secrets, intellectual property rights, etc. are governed by clause (d) to sub-section (I) of Section 8 and Section 9 of the RT1 Act. In all other cases where the information relates to or has been supplied by the third party and treated as confidential by that third party, disclosure in terms of the proviso may be allowed where the public interest in disclosure outweighs in importance any possible hann or injury to the interest of the third party. Confidentiality is protected and preserved in law because the public interest requires such protection. It helps and promotes free communication without fear of retaliation. However, public interest in protecting confidentiality is subject to three well-known exceptions. The first exception being a public interest in the disclosure of iniquity for there cannot be any loss of confidentiality involving a wrongdoing. Secondly, there cannot be any public interest when the public has been misled. Thirdly, the principle of confidentiality does not apply when the disclosure relates to matters of public concern, which expression is vastly different from news value or news to satiate public curiosity. Public concern relates to matters which are an integral part of free speech and expression and entitlement of everyone to truth and fair comment about it. There are certain circumstances where the public interest in maintaining confidentiality may be outweighed by the public interest in disclosure and, thus, in common law, it may not be treated by the courts as confidential information."
29. It is submitted that in the present cast as well, even if the information is considered confidential, information relating to patents furthers public interest, and may therefore be disclosed by the public authority as it outweighs any other confidentiality considerations.
.A. Another FAA of the same Public Authority has asked the CPIO to disclose the same information (Section 25(3) order) with respect to another patent The RTI Applicant humbly submits that he filed another RTI application requesting the order of the Controller under Section 25(3) with respect to another patent bearing number 309399 (RTI Application No. CGPDT/R/E/22(00201 and First Appeal No. COPDT/A/E/22/00044). In that instance. the CPIO refused the information under Section 8(I)(d), but the FAA in the said case stated on appeal that the information has to be disclosed by the CPIO as it does not fall within the scope of Section 8(I)(d). The RTI Applicant humbly submits that if the order can be disclosed with respect to one patent. the same information may be disclosed with another patent by the same Public Authority. It is therefore submitted that the CPIO may be ordered to disclose the order in this case as well.
7D. Suo Moto Disclosure of information by the public authority
34. The RTI Applicant humbly submits that the information requested must be disclosed suo moto by the Office of CGPDTM under Section4 of RTI Act, which reads as follows:
"4. Obligations of public authorities.--
(2) It shall be a constant endeavour of every public authority to take steps in accordance with the requirements of clause (b) of sub section (I) to provide as much information suo motu to the public at regular intervals through various means of communications, xxx
35. It is submitted that documents relating to patents arc published online by the office of CGPDTM as they are public documents. The published documents include documents relating to oppositions such as notice of opposition. Counter statement, report of opposition board, hearing documents, and orders of the Controller of Patents. However, though the report of the opposition board is published online, the order in writing under Section 25(3) constituting the opposition board is not published. This is absurd because the order constituting the opposition board is passed by the Controller of Patents in her/his capacity as a quasi-judicial authority in a public proceeding., and all other documents that form part of the proceedings are published including the report given in furtherance of the order. As the Office of CGPDTM is disclosing all reports of opposition boards online, it is submitted that the orders constituting the opposition board may also be provided at the same link so that the public gets the opportunity to access and act upon the said information. It is submitted that providing orders under Section 25(3)(b) of the Patents Act online will not only further public interest, but will also further the objectives of the RTI Act. This will also avoid the necessity of filing RTI applications to get orders that form part of regular public information that ought to be disclosed suo moto. ..."
The CPIO reiterated the contents of her above- mentioned reply & FAA's order. Further, to a query from the Commission regarding disclosure of patent bearing number in public domain, the CPIO submitted that such related information is never uploaded on their website .
Decision:
At the outset, the Commission agrees with the submissions of the Appellant that initial denial of information by the CPIO on the plea that it has not been sought 8 through alternative prescribed process at the initial stage, was not appropriate as per the provisions of the RTI Act and RTI Rules, 2012.
The CPIO although advised the Appellant to obtain certified copies of documents by following the procedure prescribed u/s 153 of The Patents Act,1970; however under RTI Act, he cannot take umbrage of any other rules and regulations for supplying the information or stipulating the fees for supply of copy of documents. In this regard, attention of the CPIO is drawn towards a judgment dated 11.04.2019 of the Apex Court in the matter of ICSI Vs Paras Jain, Civil Appeal No. 5665/2014 wherein it was held as under-
"12. Be that as it may, Guideline no.3 of the appellant does not take away from Rule 4, The Right to Information (Regulation of Fees and Cost) Rules, 2005 which also entitles the candidates to seek inspection and certified copies of their answer scripts. In our opinion, the existence of these two avenues is not mutually exclusive and it is up to the candidate to choose either of the routes. Thus, if a candidate seeks information under the provisions of the Right to Information, then payment has to be sought under the Rules therein, however, if the information is sought under the Guidelines of the appellant, then the appellant is at liberty to charge the candidates as per its guidelines." (Emphasis Supplied) Adverting to aforesaid ratio, the CPIO is under obligation to provide copy of answer scripts sought for under the RTI Act by charging photocopying charges strictly as per the RTI Rules, 2012. Thus, the CPIO is hereby cautioned to exercise due diligence in future while replying to such RTI Applications. (Emphasis supplied) Notwithstanding the aforesaid, the Commission after close scrutiny of the contents of RTI Application arrives at the conclusion that the queries raised by the Appellant at points no. 1 and 3 are in the nature of seeking clarifications/explanations from the CPIO based on his interrogatories which concededly do not conform to Section 2(f) of RTI Act. In this regard, the Appellant shall note that outstretching the interpretation of Section 2(f) of the RTI Act to include deductions and inferences to be drawn by the CPIO is unwarranted as it casts immense pressure on the CPIOs to ensure that they provide the correct deduction/inference to avoid being subject to penal provisions under the RTI Act. For the sake of clarity, the provision of Section 2(f) of the RTI Act is reproduced hereunder:9
"2. Definitions.--In this Act, unless the context otherwise requires,--
(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;.."
His attention is also drawn towards a judgment of the Hon'ble Supreme Court on the scope and ambit of Section 2(f) of RTI Act in the matter of CBSE vs. Aditya Bandopadhyay & Ors.[CIVIL APPEAL NO.6454 of 2011]wherein it was held as under:
"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing.........A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. 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." (Emphasis Supplied) In addition to above, the details of opposition board pertaining to patent bearing number 332522 of third party as sought by the Appellant at point no. 2 & 4 of RTI Application is squarely hit by Section 8(1)(j) of RTI Act. The said exemption clause is reproduced as under:
"8. Exemption from disclosure of information --
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen:
xxxx
(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the 10 appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:.."
The above mentioned observation is in lines with a judgement of Hon'ble Supreme Court of India in the matter of Central Public Information Officer, Supreme Court of India Vs. Subhash Chandra Agarwal in Civil Appeal No. 10044 of 2010 with Civil Appeal No. 10045 of 2010 and Civil Appeal No. 2683 of 2010 wherein while explaining the import of "personal information" envisaged under Section 8(1)(j) of RTI Act has been exemplified in the context of earlier ratios laid down by the same Court in the matter(s) of Canara Bank Vs. C.S. Shyam in Civil Appeal No.22 of 2009; Girish Ramchandra Deshpande vs. Central Information Commissioner & Ors., (2013) 1 SCC 212 and R.K. Jain vs. Union of India &Anr., (2013) 14 SCC 794.The following was thus held:
"59. Reading of the aforesaid judicial precedents, in our opinion, would indicate that personal records, including name, address, physical, mental and psychological status, marks obtained, grades and answer sheets, are all treated as personal information. Similarly, professional records, including qualification, performance, evaluation reports, ACRs, disciplinary proceedings, etc. are all personal information. Medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive..."
(Emphasis Supplied) Having observed as above, no further relief can be granted in the matter.
The appeal is disposed of accordingly.
Saroj Punhani (सरोज पुनहािन) हािन) Information Commissioner (सूचना आयु ) 11 Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 12