Central Information Commission
Mr. Dharmender Kumar Garg, vs Nct Delhi And Haryana on 14 July, 2009
CENTRAL INFORMATION COMMISSION
Club Building, Old JNU Campus,
Opposite Ber Sarai, New Delhi 110 067.
Tel: +91 11 26161796
Decision No. CIC/SG/C/2009/000753/4129
Complaint No. CIC/SG/C/2009/000753
Relevant facts emerging from the Complainant:
Complainant : Mr. Dharmender Kumar Garg,
Chamber No. 412, Delhi High Court,
New Delhi - 110003
Respondent : Mr. Raj Kumar Sah
PIO Registrar of Companies & CAPIO NCT Delhi and Haryana, 4th Floor, IFCI Tower, Nehru Place, New Delhi - 110003 RTI application filed on : 06/06/2009 PIO replied : Not mentioned First Appeal filed on : Not mentioned First Appellate Authority order : Not mentioned Complaint filed on : 22/06/2009 Information Sought:
The appellant had sought information from PIO regarding M.s Bloom Financial Services Limited through following queries:
I- Please provide the copy of the complained file with all documents submitted by ROC for prosecution of the directors of the company alongwith the copy of Order sheet/Note Sheets of ROC office.
II- If a person is not director of a company is he responsible for filing document to ROC? III- Who is responsible for filing document to ROC like Balance Sheet, Annual Return? IV- Can ROC Prosecute a person for not filling documents. If he is not director at that time? V- Can ROC prosecute ex director or subscribers of Memorandum of Association for non filing of documents? If yes under which Section and for which year? VI- Please provide the copies of Annual Return filed at RIC Since incorporation. VII- Who are the directors of the Company as per SLP filed at ROC. Please provide the copies of statutory report and SLP filed at ROC.
VIII- At present who are the directors of this company? Please provide their name address, date of appointment and copies of consent filed, and Form-32.
IX- Who is responsible at ROC office for filing false/wrong prosecution against a person as a director, though he is not in fat director? What is the remedy available to a aggrieved person as above.
X- Please provide the copy of ROC permission to their company for inviting Public Deposits alongwith the application and other documents filed by the company. XI- Hove you destroyed the documents of this company for any period? If yes what are the documents destroyed by your office and reasons for destruction alongwith copy order sheet.
PIO's Reply:
Not mentioned.
Order of the First Appellate Authority:
Not mentioned.
Relevant facts emerging during hearing on 1 July 2009:
The following were present:
Complainant: Mr. Dharmender Kumar Garg Respondent: Mr. Raj Kumar Sah, PIO and Mr. Atma Sah The respondent states that the information is available under the Section 610 of the Companies Act on payment of the prescribed fee. The respondent is also relying on the department circular of Ministry of Company Affairs dated 24/01/2006, a decision of the Commission CIC/MA/A/2006/00016 dated 29 March 2006 and CIC/AT/A/2007/00112 dated 12 April 2007 (particularly paras 8, 12 and 13).
The Complainant states, "their web site was inspected on 06 May 2009 on payment of Rs.50/- but no information was available. Thereafter after getting the reply under RTI, I went to Manesar office (Gurgaon) and file was inspected. It was mentioned in the file that past records had been weeded out. Only three four documents were available, I took the copies on payment of more than Rs.1200/- even then the information could not be collected from the record. The files are totally incomplete."
The Complainant's contention therefore is that prosecution has been launched against him inspite of the fact that the records are not up-to-date. The respondent's main contention is that since they offer inspection under Section 610 of the Companies Act on payment of the prescribed fee, they need not give information under the Right to Information Act.
The decision was reserved during the hearing.
Decision announced on 14 July 2009:
The Commission had heard both the parties. The Respondent had submitted the following arguments before the Commission to deny the information:
1. Once the information is available in the public domain accessible to the citizens, the information is automatically excluded from purview of the RTI Act as held by Hon'ble Information Commissioner Shri A.N. Tiwari in the case of CIC/AT/A/2007/00112
2. Section 610 of the Companies Act, 1956 provides that any person may inspect any document kept by ROC and obtain copy of any document from the ROC concerned on payment of prescribed fee. Therefore, the Complainant need not seek information under RTI Act. This was held by Hon'ble Information Commissioner Shri M.M. Ansari in the case of CIC/MA/A/2006/0016.
For the first argument the Respondent relied on order number CIC/AT/A/2007/00112 where it was held by the Hon'ble Commission while interpreting Section 2(j) of the RTI Act that "...unless an information is exclusively held and controlled by a public authority that information cannot be said to be an information accessible under the RTI Act. Inferentially it would mean that once a certain information is placed in the public domain accessible to the citizens either freely or on payment of a pre-determined price that information cannot be said to be 'held' or 'under the control of the public authority' and thus would cease to be an information accessible under the RTI Act..." I would respectfully beg to differ from this decision. Even if the information is in public domain, an applicant can still ask a public authority to grant him the information if it is held by it. Even if some information is available at various places, it is the Citizen's choice from where he wishes to access it. The only exemptions from disclosure of information available in the RTI Act are provided under Section 8 and
9. The Commission would like to clarify that Section 2 of the RTI Act is the definitional provision and therefore Section 2(j) is not an exemption clause under RTI Act. It merely defines the 'right to information'. So the exemption from disclosing the information cannot be sought under Section 2(j). It is also the basic tenet of the law of statutory interpretation that no section should be interpreted in such a manner which would violate the basic objective of the statute. The basic objective of the Right to Information Act, 2005 is to provide the information sought by the Applicant from a public authority and therefore the sections of the same act should be interpreted to further the objective of this Act. Also the information sought by the Complainant here has not been provided on the internet. The information asked for is very basic information and records related to this particular information are missing. This information is very important for the Complainant as he is facing a threat of arrest and needs the information to prove his innocence. Not granting such information clearly leads to violation of the fundamental right of the Complainant as provided under Article 21 of the Constitution.
With regards to the second argument of the Respondent about information to be sought only under Section 610 of the Companies Act, the Respondent has relied on order number CIC/MA/A/2006/0016 of the Commission where the Hon'ble Commissioner Shri M.M. Ansari upholding FAA's order stated that "There is already a provision for seeking information under Section 610 of The Companies Act, 1956. The Complainant may accordingly approach the ROC as advised by the Appellate Authority to obtain the relevant information." If the Complainant has more than one way of seeking remedy he has the freedom to opt for the way which is more convenient for him. No claim has been made by the PIO of any exemption under the RTI Act to deny the information. If a Public Authority has a procedure of disclosing certain information which can also be accessed by a Citizen using the Right to Information Act, it is the Citizen's prerogative to decide which route he wishes to take. The existence of another method of accessing information cannot be a justification to deny the Citizen his freedom to exercise his fundamental right codified under the Right to Information Act. If the Parliament wanted to restrict this right, it would have been stated expressly in the Act. Nobody else has the right to constrain or limit the rights of the Sovereign Citizen.
There is no provision in the Right to Information Act which restrains the Citizen's right to use it if another route to access information has been offered. It is a Citizen's right to use the most convenient and efficacious means available to him.
It appears to the Commission that information is being denied to the Complainant without any valid grounds and this delay is causing mental agony to the Complainant who is living under the constant fear of arrest.
The Complaint is allowed.
The complete information will be given to the Complainant before 25 July 2009. If records are not available for any of the queries, this will be stated categorically.
The issue before the Commission is of not supplying the complete, required information by the PIO within 30 days as required by the law.
From the facts before the Commission it is apparent that the PIO is guilty of not furnishing information within the time specified under sub-section (1) of Section 7 by not replying within 30 days, as per the requirement of the RTI Act. It appears that the PIO's actions attract the penal provisions of Section 20 (1).
A showcause notice is being issued to him, and he is directed give his reasons to the Commission to show cause why penalty should not be levied on him.
He will give his written submissions showing cause why penalty should not be imposed on him as mandated under Section 20 (1) before 5 August 2009. He will also submit proof of having given the information to the Complainant.
This decision is announced in open chamber.
Notice of this decision be given free of cost to the parties.
Shailesh Gandhi Information Commissioner 14 July 2009 (In any case correspondence on this decision, mention the complete decision number.) (R.K)