Central Information Commission
Rita Hore vs Bar Council Of India on 11 May, 2020
के न्द्रीय सचू ना आयोग
Central Information Commission
बाबा गंगनाथ मागग, मनु नरका
Baba Gangnath Marg, Munirka
नई निल्ली, New Delhi - 110067
नितीय अपील सख्ं या / Second Appeal No.:- CIC/BCOI/A/2018/629170-BJ
Ms. Rita Hore
....अपीलकताग/Appellant
VERSUS
बनाम
CPIO
Assistant Secretary
Council Department, Bar Council of India
21, Rouse Avenue, Institutional Area
New Delhi - 110002
...प्रनतवािीगण /Respondent
Date of Hearing : 08.05.2020
Date of Decision : 11.05.2020
Date of RTI application 18.04.2018
CPIO's response 21.05.2018
Date of the First Appeal 21.05.2018
First Appellate Authority's response 20.08.2018
Date of diarised receipt of Appeal by the Commission Nil
ORDER
FACTS:
The Appellant vide her RTI application sought information on 05 points regarding action taken on record by the court for criminal contempt against Nairita Dutta and her lawyers for continuously professing and defending the cases despite filing of false cases and other issues thereto.
The CPIO, vide its letter dated 21.05.2018 stated that subject matter on which the Appellant was asking information was not related to BCI. Hence, no information could be given. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 20.08.2018 upheld the response of the CPIO and stated that queries raised were also not in the nature of information under RTI Act.
HEARING:
Facts emerging during the hearing:
The following were present:Page 1 of 6
Appellant: Mr. Sandipan Hore (Appellant's Representative through TC: Respondent: Mr. Ashok Pandey through TC:
The Appellant's representative reiterated the contents of the RTI application and stated that neither any satisfactory information was provided to them nor was any action taken in the matter by the BCI, till date. During the hearing, the Appellant's representative alleged irregularities in the activities undertaken by the notary public and the advocates working in the subordinate judiciary and also alleged that no action was taken by the public authorities against the misconduct of notary public and the advocates. He also alleged that the Bar Council Enrollment Number was not disclosed by the Advocates appearing against them in the matter being adjudicated before the 1st Judicial Magistrate, Alipore, South 24 Parganas despite instructions/ guidelines of the Hon'ble High Court of Calcutta in this respect. Moreover, no information regarding the action taken on their complaint was provided by the Respondent BCI. In its reply, the Respondent stated that information as held and available with them had already been shared with the Appellant and that he should have approached the concerned State Bar Council regarding violations of the provisions of Advocates Act, 1961 or any other regulation/ guideline in the matter. As regards the action taken on his complaint/ representation, the Respondent submitted that due to the non-availability of records in view of the lockdown, he was unable to provide any response on the same but assured that the updated factual position on the same would be provided to him on completion of the lockdown period subsequent to receipt of the complaint copy from the Appellant on his email id ([email protected]). During the hearing, attention of the Appellant's representative was also drawn to a similar matter which was heard and adjudicated in Appeal No CIC/BCOI/A/2018/613728 and Complaint No CIC/BCOI/C/2018/613729 decided on 02.09.2019. It was noted by the Commission that in the said case, the Commission had decided not to intervene in the matter. The facts and circumstances were similar to the present application.
The Commission was in receipt of a written submission from the Appellant dated 29.04.2020 wherein it was inter alia stated that the FAA did not issue a notice of hearing before passing the order. The information sought by her concerned the functioning of the notary public and the advocates working in the subordinate judiciary, the demeaning activities undertaken by them and related rules and regulations to bind them and whether in the specific cases mentioned in the main application, the public authorities had acted against the misconduct of notary public and the advocates act. The Appellant drew the attention of the Commission to query no 1,3,4 and 5 of the RTI application and the First Appeal point no 2,3,4,5 and the Second Appeal grounds. The Appellant also prayed that information be provided by the Bar Council of India itself or be directed to provide the same by the respective bar council.
The Commission was also in receipt of a rejoinder to the written submission from the Appellant dated 30.04.2020 wherein while referring to the decision of the Commission in CIC/BCOI/A/2018/613728 and CIC/BCOI/A/2018/613729, it was stated that the said matters were similar in nature and he had tried to submit non-compliance petitions but could not do so online.
Subsequently, the DR to CIC vide its email dated 05.05.2020 informed the Appellant that the non-compliance cases would be taken separately.Page 2 of 6
The Commission was also in receipt of a written submission from the Respondent dated 08.05.2020 wherein it was stated that as the records of BCI lied with BCI office which was closed due to Corona epidemic hence they were not in a position to verify and cross verify the facts on merit. Therefore, it was requested to adjourn the matter till the lockdown continued in Delhi/ Noida. However, it was stated by the Respondent that he would be available on mobile/ whatsapp to assist the Commission.
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."
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."
Page 3 of 67. "....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. 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 Page 4 of 6 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. 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 29.11.2017.
Page 5 of 6DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission instructs the Respondent to re-examine the matter and provide information on point no 05 of the RTI application to the Appellant within a period of 30 days from the date of receipt of this order depending upon the condition for containment of the Corona Virus Pandemic in the Country or through email, as agreed. For redressal of her grievance, the Appellant is advised to approach an appropriate forum.
The Appeal stands disposed accordingly.
(The Order will be posted on the website of the Commission) (Bimal Julka) (बिमल जुल्का) (Chief Information Commissioner) (मुख्य सूचना आयुक्त( Authenticated true copy (अनिप्रमानणत सत्यानपत प्रनत) (K.L. Das) (के .एल.िास) (Dy. Registrar) (उप-पंजीयक) 011-26186535/ [email protected] निनांक / Date: 11.05.2020 Page 6 of 6