Central Information Commission
Vihar Durve vs Directorate Of Enforcement on 31 January, 2020
के न्द्रीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ मागग, मुननरका
Baba Gangnath Marg, Munirka
नई दिल्ली, New Delhi - 110067
नितीय अपील संख्या / Second Appeal No.(s) :- CIC/DIREN/A/2018/144407-BJ+
CIC/DIREN/A/2018/144491-BJ
Mr. Vihar Durve
....अपीलकताग/Appellant
VERSUS
बनाम
CPIO & Dy. Director,
Directorate of Enforcement (Foreign Exchange Management)
6th Floor, Lok Nayak Bhawan, Khan Market
New Delhi - 110003
...प्रनतवािीगण /Respondent
Date of Hearing : 29.01.2020
Date of Decision : 31.01.2020
ORDER
RTI - 1 File No. CIC/DIREN/A/2018/144407-BJ Date of RTI application 23.03.2018 CPIO's response 24.04.2018 Date of the First Appeal 08.05.2018 First Appellate Authority's response 29.05.2018 Date of diarised receipt of Appeal by the Commission 16.07.2018 FACTS:
The Appellant vide his RTI application sought information on 09 points with regard to the total amount received by Nirav Modi between 2011 to 2018 through Letter of Understanding from different banks in India and abroad, the total amount/assets/properties recovered/seized, the total letter of understanding signed by from different banks in India & abroad and other issues related thereto.
The CPIO, vide its letter dated 24.04.2018 stated that their Organization was exempted from the purview of the RTI Act, 2005 as per Section 24 r/w the Second Schedule of the Act. Dissatisfied Page 1 of 6 by the response, the Appellant approached the FAA. The FAA, vide its order dated 29.05.2018 while concurring with the CPIO's response, informed that the Directorate is mandated to investigate cases for suspected contravention of provision of the Foreign Exchange Management Act, 1999. Further, the Directorate also investigates the cases under the provisions of Prevention of Money Laundering Act, 2002 when other Law Enforcement Agencies i.e. Police, CBI, etc. had registered a case for the offences appearing under the Schedule of PMLA, 2002. It was evident from the applications dated 24.03.2018 and 23.03.2018 and subsequent Appeal dated 08.05.2018 against the order of PIO that there was no corruption or human rights issue involved as the Appellant had merely sought investigation related information. In order to bring the allegation within the ambit and scope of corruption, it needed to be specific not vague and should be related to functioning of the Organization. With regard to the violation of human rights, proviso of Section 24 reads as "Provided further that in the case of information sought for is in respect of allegations of violations of human rights, the information shall only be provided after the approval of the Central Information Commission."
RTI - 2 File No. CIC/DIREN/A/2018/144491-BJ Date of RTI application 24.03.2018 CPIO's response 01.05.2018 Date of the First Appeal 08.05.2018 First Appellate Authority's response 29.05.2018 Date of diarised receipt of Appeal by the Commission 17.07.2018 FACTS:
The Appellant vide his RTI application sought information on 09 points with regard to the total amount received by Mehul Choksi between 2011 to 2018 through Letter of Understanding from different banks in India and abroad, the total amount/assets/properties recovered/seized, the total letter of understanding signed by from different banks in India & abroad and other issues related thereto.
The CPIO, vide its letter dated 01.05.2018 stated that their Organization was exempted from the purview of the RTI Act, 2005 as per Section 24 r/w the Second Schedule of the Act. Dissatisfied by the response, the Appellant approached the FAA. The FAA, vide its order dated 29.05.2018 while concurring with the CPIO's response, informed that the Directorate is mandated to investigate cases for suspected contravention of provision of the Foreign Exchange Management Act, 1999. Further, the Directorate also investigates the cases under the provisions of Prevention of Money Laundering Act, 2002 when other Law Enforcement Agencies i.e. Police, CBI, etc. had registered a case for the offences appearing under the Schedule of PMLA, 2002. It was evident from the applications dated 24.03.2018 and 23.03.2018 and subsequent Appeal dated 08.05.2018 against the order of PIO that there was no corruption or human rights issue involved as the Appellant had merely sought investigation related information. In order to bring the allegation within the ambit and scope of corruption, it needed to be specific not vague and should be related to functioning of the Organization. With regard to the violation of human rights, proviso of Section 24 reads as "Provided further that in the case of information sought for is in respect of allegations of violations of human rights, the information shall only be provided after the approval of the Central Information Commission."Page 2 of 6
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Vihar Durve through VC;
Respondent: Mr. Rajesh Ridla, Assistant Legal Advisor and Mr. Vipin, Assistant / CPIO (Enforcement Directorate);
The Appellant reiterated the contents of the RTI applications and stated that being a matter of high level corruption, no information had been put out by any of the Investigating Agencies for the benefit of general public with regard to the status of investigation. He further stated that this is a matter of corruption and Human Rights violation since an amount of Rs. 11,300 Crore was involved in the matter and therefore, all information relating to their assets/properties recovered, seized, etc. should be disclosed. In support of his contention, he referred to the decisions of the Hon'ble Supreme Court in UOI vs ADR (2002); R. Rajagopal vs. State of Tamilnadu 1994; Kashinath Shetye vs. Dinesh Vaghela; State of UP vs. Raj Narayan; UOI vs. Association of Democratic Reforms; PUCL vs. UOI; S. P. Gupta vs. President of India & Others; RBI vs. Jayanti Lal N Mistry, etc. etc. He also referred to the newspaper article published in Economic Times stating that "it is believed that a total amount of Rs. 17,900 crore was defrauded by 51 absconders, who have run away from the country, the government informed Parliament on Tuesday December 3, 2019". In its reply, the Respondent reiterated the submission of the CPIO / FAA and claimed protection under Section 24 r/w Second Schedule of the RTI Act, 2005. On a query from the Commission, if any Parliament question was answered in this regard, the Respondent replied in the negative and further stated that they were only answerable /responsible to DOR and whenever any question/reports in such matters were sought by DOR, they furnished inputs to them accordingly. It was also informed that no press release / notification had ever been issued by ED in this matter and that they were only dealing with the Money Laundering cases under investigation and therefore no further details could be provided. In the instant matter also, it was categorically stated that the investigation was underway. On a specific query from the Commission if under the proviso to Section 8 (1) of the RTI Act, 2005, a similar reply could be furnished to the Parliament if asked by them, the Respondent firmly replied in the affirmative. The Appellant however remained dissatisfied with the Respondent's submissions and stated that the information sought technically fell within the proviso relating to corruption and human rights violations and therefore, the same should be furnished by the Respondent.
The Commission was also in receipt of a rejoinder from the Appellant dated 16.01.2020 wherein while reiterating the contents of the RTI application, it was inter alia submitted that ED was fully aware of the fact that Nirav Modi/Mehul Choksi has been involved in corrupt practices and has duped many banks to the tune of Crores of Rupees. Many bank officials have been arrested for indulging into corrupt practices and for helping Nirav Modi/Mehul Choksi. He further submitted that providing information sought in the RTI applications would increase the credibility of Directorate of Enforcement. It is now widely recognized that openness and accessibility of people to information about the Government's functioning is a vital component of democracy. Disclosure of allowable information would lead to better system and it would be in the public interest that a public authority should throw open the process of public scrutiny, which would result in evolving a better system. Hence, it was inter alia prayed to the Commission to provide him the requisite information as sought in the RTI applications.Page 3 of 6
The Commission was also in receipt of a written submission from the Respondent dated 23.01.2020 wherein it was stated that the RTI application and First Appeal were rejected after due consideration since the requisite information/ documents could not be provided in view of the exemption to the Directorate of Enforcement u/s 24 r/w Second Schedule of the RTI Act. He also referred to the judgment of the Hon'ble Delhi High Court in the matter of Bimal Kumar Bhattacharya dated 19.02.2018 and prayed to dismiss the Appeal. The Respondent also enclosed a copy of the order of the Division Bench of the Hon'ble Delhi High Court in the matter of Bimal Kumar Bhattacharya vs. CPIO, Directorate of Enforcement and Anr (LPA 256/2018 dated 07.05.2018) wherein the aforementioned order of the Single Bench was upheld.
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 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, Page 4 of 6 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."
The Commission observed that the Enforcement Directorate was included in the list of organization exempted from the purview of the RTI Act, 2005 as per Section 24 r/w Second Schedule of the RTI Act, 2005. In the context of the information sought in the instant matter, a reference can be made to the decision of the Hon'ble High Court of Delhi in the matter of CPIO, Directorate of Enforcement vs. Mr. Bimal Kumar Bhattacharya WP (C) No. 345/ 2018 dated 19.02.2018 wherein it was held as under:
"6. Plainly, the impugned order cannot be sustained as it is contrary to the expressed language of Section 24(1) of the Act. Section 24(1) of the Act expressly excludes intelligence and security organizations specified in the Second Schedule of the Act from the purview of the Act. Admittedly, the Directorate of Enforcement is included in the Second Schedule to the Act and, thus, cannot be called upon to disclose information under the provisions of the Act. The only exception carved out from the exclusionary clause of Section 24(1) of the Act relates to information pertaining to allegations of corruption and human rights violation. Undisputedly, the information sought for by the petitioner cannot be categorized as such information.
7. The aforesaid question has also been considered by a Coordinate Bench of this Court in CPIO Intelligence Bureau v. Sanjiv Chaturvedi : 242 (2017) DLT 542, wherein this Court held that an organisation specified in the Second Schedule of the Act was excluded from the purview of the Act.
8. In view of the above, the petition and the pending application are allowed and the impugned order is set aside. However, it is clarified that this would not preclude the respondent from instituting any proceedings that he may be advised against M/s Thomas Cook (India) Limited, if so, entitled in law."
Moreover, the Commission also observed that in similar such matters where information was sought from organizations exempted from the purview of the RTI Act, 2005 as per Section 24 r/w Second Schedule of the RTI Act, the Hon'ble High Courts had inter alia in several decisions held as under:
1. The Hon'ble High Court of Delhi in a similar matter in Pr. DIT (Inv) (1) vs. Ashwani Kumar, W.P.(C) 11591/2017 dated 22.12.2017 stayed the decision of the Commission wherein a direction was issued to the Pr. DIT (Inv) (1) to inform the status of the Petition/Complaint dated 12.02.2016 addressed to PMO, within a period of 30 days from the date of receipt of this order. In the said matter, the Hon'ble High Court had also directed the Department to file an affidavit unequivocally stating that the complaint in question is a matter being investigated by the DGIT (Inv.) and not any other office of the IT Authority.Page 5 of 6
2. The Hon'ble High Court of Punjab and Haryana in its decision in Palwinder Sondhi v.
Central Information Commission and Ors. WO (C) No. 13211 of 2010 dated 28.07.2010 had held as under:
"Be that as it may, in the context of information sought, I find no fault with the reasons given in the impugned order for not supplying the information as the provisions of Section 24(1) of the Act clearly provide that nothing contained in the Act shall apply to the DRI, it being an organization established by the Central Government. Surely the information sought does not relate to corruption and human right violations as is evident from the nature of information sought. The order under the circumstances does not suffer from arbitrariness."
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties and in the light of the decision of the Superior Courts in similarly placed matter, the Commission is constrained not to intervene any further in the matter.
The Appeals stand disposed accordingly.
(Bimal Julka) (नबमल जुल्का) (Information Commissioner) (सूचना आयुक्त) Authenticated true copy (अभिप्रमाणित सत्यापित प्रतत) (K.L. Das) (के .एल.िास) (Dy. Registrar) (उप-पंजीयक) 011-26182598/ [email protected] दिनांक / Date: 31.01.2020 Copy to:-
1. The Secretary, Department of Revenue, M/o Finance, North Block, New Delhi - 110001
2. Director, Directorate of Enforcement , 6th Floor, Lok Nayak Bhawan, Khan Market New Delhi - 110003 Page 6 of 6