Central Information Commission
Mr.Dp Pangarkar vs Cbec on 5 May, 2010
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Central Information Commission
Case No. CIC/AT/A/2009/00606
Dated: 5th May, 2010
Appellant : Shri D.P. Pangarkar, Settlement Commission, Customs & Central Excise, Additional Bench, Utpad Shulk Bhawan, 6th Floor, Bandra-Kurla Complex, Bandra East, Mumbai Respondent : Shri P.K.Sirohi, Commissioner (Investigation) and First Appellate Authority Third-party : Shri Ahmed Hussain (RTI -applicant) This 2nd appeal dated April, 2009 is filed by CPIO Shri D.P. Pangarkar, Joint Commissioner of Settlement Commission of Customs and Central Excise against the orders dated 5.2.2009 of 1st-Appellate Authority of Settlement Commission in the RTI application dated 26.11.2008 filed by one Shri Ahmed Hussain.
Brief facts of the Case:
2. Shri Ahmed Hussain had filed and an RTI -application dated 26.11.2008 before the CPIO Shri D.P Pungarkar, Settlement Commission of Customs and Central Excise had requested for the following information:
"1. Application for settlement of cases under Section 127B of the Customs Act, 1962, filed by Shri Hansraj Hirji Shah in Feb. 2001 (along with annexures)
2. Reply of the Commissionerate of Customs, CSI Airport, Mumbai including O-I-O dtd. 09.07.2000 / Extract report of Advisory Board in respect of COFEPOSA detenue Shri Hansraj Shah / Commissionerate's letter dtd. Sept., 2000 addressed to Govt. of Maharashtra.
3. Further reply to Settlement Commissioner submitted by the appellant.
4. Order dtd. 08.08.2001 passed by Settlement Commissioner dismissing the application of Shri Shah."
3. Through his communication dated 5.12.2008, CPIO Shri D.P.Pangarkar stated as per Section 127M of Customs Act, 1962, the proceedings before Settlement Commission were deemed to be a judicial proceedings within the meaning of Sections 193 & 228 and for the purpose of Section 196 of the IPC. Further, under Rule 14 of "Customs & Central Excise Settlement Commission Procedure 1999" the proceedings before the Settlement Commission were not open to public and by there very nature were not public proceedings, since the applicant makes disclosures of information which was entirely personal in nature and to which only he was privy. Such disclosure is made in strict confidence to the Settlement Commission. Further, such information embodies commercial information and the same was conveyed to the Commission in confidence. In terms of Rule 15 of the said procedure, the Settlement Commission had also restricted the publication of its orders and prescribed that the Chairman might, at his discretion, direct the publication of orders of Special Benches, or portions thereof, with such modifications as to names and other particulars therein as he might deem fit. Hence disclosures of any order passed by Settlement Commission or any portion thereof is strictly prohibited by the Settlement Commission. He further argued that information was neither required for any public activity nor involved large public interest. The applicant failed to provide any evidence in that regard. CPIO also relied upon the order dated 18.9.2007 in case No. CIC/AT/A/2006/00586 CIC ( Shri Rakesh Kumar Gupta Vs Income Tax Tribunal ), wherein CIC, inter-alia, held that
i) Section 4(1) (d) does not apply to a judicial proceedings conducted by a Court or a Tribunal as it refers only to administrative and quasi-judicial decisions of public authorities.
ii) The non-obstante clause in Section 22 of the Right to Information Act does not, repeal or substitute any pre-existing law including the provisions of the Income Tax Act concerning dissemination of information.
iii) It is reiterated and made clear that the RTI Act is not intended to come into conflict with a judicial decision regarding disclosure of information. Section 8(1)(b) of the Right to Information Act, 2005 makes it very clear that the information which has been expressly forbidden to be published by any court of law or tribunal cannot be disclosed as any such disclosure is also within the exemption clause.
CPIO therefore, declined to disclose the requisite information under section 8(1)
(b), 8(1)(d) and 8(1)(j) of the RTI Act.
4. Aggrieved with the reply of CPIO, the RTI-applicant Shri Ahmed Hussain filed his first-appeal dated 1.1.2009 challenging the order dated 5.12.2008 of CPIO.
5. AA passed a detailed order dated 9.2.2009. Though AA admitted that there was considerable substance in the observation of CPIO, yet, in his opinion, justice cannot be denied for the sake of rule book. He further, stated as under:
"I am of the view that the disclosure of the information sought for by the appellant will help him legally. As is mentioned in this application that the disclosure of the information would serve in his own case to defend his case effectively in the eventuality of dept. proceedings and declining the same would cause irreparable damage. Therefore, denial of information in view of the provisions of Section 8(1)(d) and Section 8(1)(j), the application of the appellant for inspection of the orders of the Commission is incorrect.
In view of what has been observed above, the CPIO the Settlement Commission is directed to provide the information asked for the appellants in RTI- application."
6. Against the decision dated 9.2.2009 of First AA, CPIO Shri D.P. Pangarkar filed this present appeal.
7. Pursuant to the Commission's Notice dated 12.8.2009, matter was heard on 10.9.2009 though video conferencing (VC). CPIO Shri D.P. Pangarkar (appellant in 2nd appeal). The CPIO Shri D.P. Pangarkar and the Appellate Authority, Shri P.K. Sirohi were present at the NIC VC Studio, Mumbai; while Commission conducted hearing from CIC office at New Delhi. The RTI- applicant Shri Ahmed Hussain (3 rd party respondents) was absent.
8. However, Shri Ahmed Hussain (the RTI-applicant) filed his written submission vide his letter dated 3.9.2009.
9. Shri D.P. Pangarkar, CPIO & appellant in 2nd appeal also filed his rejoinder vide letter dated 9.9.2009. He re-iterated that as per Section 127M of Customs Act, 1962, the proceedings before Settlement Commission are deemed to be a judicial proceedings; under Rule 14 of "Customs & Central Excise Settlement Commission Procedure 1999" the proceedings before the Settlement Commission are not open to public as these are personal in nature / commercial information and such disclosure are made in strict confidence to the Settlement Commission. Moreover, information was neither required for any public activity nor this involved larger public interest and the RTI applicant failed to provide any evidence in this regard. CPIO also relied upon the judgment dated 18.9.2007 in case No. CIC/AT/A/2006/00586 CIC (Shri Rakesh Kumar Gupta Vs Income Tax Tribunal).
10. In brief, his submission before the Commission is:
That the information sought to be disclosed pertained to Customs & Central Excise Settlement Commission which is a judicial authority constituted under Section 32 of the Central Excise Act, 1944. Under the existing provisions of Customs Act, 1962 and procedure made thereunder, the Settlement Commission is a judicial authority and it has decided the extent to which the information is to be disseminated. It is a settled law that the non-obstante clause of Section 22 of RTI Act, 2005 is not to repeal or override such existing arrangement under Customs Act, 1962 as regards dissemination of information. In this regard, the decision of Hon'ble Central Information Commission in the case of Rakesh Kumar Gupta V/s Income Tax Appellate Tribunal in Case No. CIC/AT/A/2006/00586 dtd. 18.09.2007 can be relied upon wherein it was held that :
"49. It is our conclusion, therefore, that given that a judicial authority must function with total independence and freedom, should it be found that an action initiated under the RTI Act impinges upon the authority of that judicial body, the Commission will not authorize the use of the RTI Act for any such disclosure requirement. Section 8(1) (b) of the RTI Act is quite clear, which gives a total discretion to the Court or the Tribunal to decide as to what should be published. An information seeker should, therefore, approach the concerned court or the tribunal if he intends to have some information concerning a judicial proceeding and it is for the concerned court or the tribunal to take a decision in the matter as to whether the information requested is concerning judicial proceedings either pending before it or decided by it can be given by it or not."
xxxxxxxxx "51(ii) The non-obstante clause in Section 22 of the Right to Information Act does not, repeal or substitute any pre-existing law including the provisions of the Income Tax Act concerning dissemination of information."
Therefore, in view of above discussion, it is clear that the information cannot be sought under RTI Act, 2005 from the Settlement Commission. The applicant could have approached Settlement Commission for disclosure of the said information under Customs Act, 1962 and rules/ procedure made thereunder. Hence the Order-in-Appeal dtd. 05.02.2009 passed by the first Appellate Authority needs to be set aside being devoid of any merit and not according to the correct legal position. The RTI applicant, in his Appeal Memorandum dt. January, 2009 has stated in Para 10 of Page 7 as under :
"10. The appellant submits that the proceedings in the apex court except in-camera proceedings are available under RTI Act, 2005." It clearly implies that Shri Ahmed Hussain has admitted that in-camera proceedings are not available under RTI Act, 2005. This being so, it is to state that all proceedings before Settlement Commission are in-camera proceedings in terms of Rule 14 of Customs & Central Excise Settlement Commission Procedures, 1999. Therefore, by his own admission, Shri Ahmed Hussain, the applicant has admitted that the information pertaining to the in-camera proceedings before Settlement Commission can not be disclosed under RTI Act, 2005. Therefore, there is no question of disclosure of information to the applicant under RTI Act, 2005.
It is further submitted that the information sought for pertains to third parties and they were not asked by the Commissioner & First Appellate Authority under Section 11 of RTI Act, 2005 to present their opinion on disclosure of information pertaining to them. As such, the Order-in-Appeal passed by the Commissioner and First Appellate Authority is bad in law for neglecting Section 11 of RTI Act, 2005. Therefore this Order-in-Appeal dtd. 05.02.2009 may please be set aside. Some of the points mentioned in the rejoinder is being reproduced to cover the arguments advanced by the Appellant • The submission of the applicant vide his counter affidavit dtd. September, 2009 are rejected in toto. The applicant has tried to mislead the Hon'ble Central Information Commission in as much as he has changed his position made in his appeal as regards the purpose for which the information is required. In his appeal memorandum, in para 18, the applicant Shri Ahmed Hussain admitted that there was no public interest involved and the information was required for his own cause. The first Appellate Authority and the Commissioner also given his findings in last but one para on page 9 of Order-in-Appeal dtd. 05.02.2009 wherein it is held that "I am of the view that the disclosure of the information sought for by the appellant will help him legally. As is mentioned in this application that the disclosure of the information would serve in his own case to defend his case effectively in the eventuality of departmental proceedings and declining the same would cause irreparable damage."
Therefore, it is clear that the information was asked by the applicant for his own cause in the Departmental matters. Now, he cannot change his stand and claim that the purpose of the information is irrelevant in terms of Section 6(2) of RTI Act, 2005. It is submitted that this totally new submission at the stage of Second Appeal is legally not permissible. Further, this new submission also doesn't help the applicant in as much as once the order is passed by CPIO under Section 8(1) (d) & Section 8(1) (j), the onus of proof that larger public interest is involved, shifts on the applicant in the first appeal and he has failed to discharge the same. • Deemed fiction created by Section 127I of Customs Act, 1962 comes into picture in this case because the Settlement Commission had rejected the application filed by Shri Hansraj Hirji Shah and directed the matter to jurisdictional Adjudicating Authority.
In this regard, it is submitted that irrespective of the fact that the application of the applicant is accepted or rejected by the Settlement Commission, it does not alter the character of the information. The deemed fiction created by Section 127I of Customs Act, 1962 has specifically limited its applicability only to the proceedings before the jurisdictional Adjudicating Authority and for all other purposes it remains the information disclosed before the Settlement Commission. Hence, CPIO has correctly claimed the privilege of exemption under Section 8(1) of RTI Act, 2005 and there is no merit in submission of the applicant.
• As discussed in foregoing paras, it is submitted that all the submissions of the applicant are baseless and devoid of any merit and hence are not acceptable.
• The AA did not discuss issues raised by the CPIO in his Order-in-Original Dated 05.12.2008 and also in the submissions made before AA against the Appeal Memorandum filed by the applicant.
• AA discussed issues, which were never raised by applicant as well as the CPIO in the proceedings. This discussion by the first Appellate Authority is based on factually incorrect information.
• Apart from above submissions his submissions contained in the Order-in-Original dtd. 05.12.2008, submissions dtd. 16.01.2009 made before the Commissioner (Investigation) & AA and submissions in the appeal dtd. 29.04.2009 filed before the Commission be placed on record and be considered before taking decision in the matter.
• In view of above facts, he prayed that the information sought for may not be disclosed to the applicant and the Order-in-Appeal dtd. 05.02.2009 passed by the First Appellate Authority may please be set aside.
• He also stated that the above points have the approval of Vice Chairman, Settlement Commission, Additional Bench, Mumbai.
11. The question before the Commission is whether Customs and Central Excise Settlement Commission Procedure, 2007 issued in supercession of the Customs and Central Excise Settlement Commission Procedure, 1999 is overwritten by Section 22 of the RTI Act. This also warrants adjudication on the stand taken by the Appellate Authority that the disclosure of the information sought for by the RTI Applicant will help him legally. As is mentioned in RTI application that the disclosure of the information would serve in his own case to defend his case effectively in the eventuality of departmental proceedings and declining the same would cause irreparable damage.
Decision Notice
12. Commission in its decision dated 18.9.2007, in the appeal filed by Shri Rakesh Kumar Gupta Vs. Income Tax Tribunal (Case No. CIC/AT/A/2006/00586) held that:
"(i) Section 4(1) (d) does not apply to a judicial proceedings conducted by a Court or a Tribunal as it refers only to administrative and quasi-judicial decisions of public authorities.
(ii) The non-obstante clause in Section 22 of the Right to Information Act does not, repeal or substitute any pre-existing law including the provisions of the Income Tax Act concerning dissemination of information.
(iii) The appellant cannot take recourse to the RTI Act to challenge a judicial decision regarding disclosure of a given set of information, which properly belonged to the jurisdiction of that judicial authority. If the appellant is aggrieved with the decision of the ITAT, the remedy lies elsewhere.
(iv) It is reiterated and made clear that the RTI Act is not intended to come into conflict with a judicial decision regarding disclosure of information. Section 8(1)(b) of the Right to Information Act, 2005 makes it very clear that the information which has been expressly forbidden to be published by any court of law or tribunal cannot be disclosed as any such disclosure is also within the exemption clause.
In a recent decision High Court of Madras in The Suprintendent, High Court Vs. The Registrar, Tamil Nadu Information Commission and M. Sivaraj has held that " 18. Therefore, Section 22 of the RTI Act cannot undoubtedly override Section 126 of the Indian Evidence Act." The reading of the non obstante clause in Section 22 of the RTI Act has to be so interpreted that preamble and enabling provisions of the RTI Act will be given plentiful and bountiful meaning only when there is no statutory bar of any kind in providing the information. The rule of Construction demands that so long as the provisions exist in the Statutes, they have to be given effect to by harmonious construction. Both the statutes will be allowed to have the space without contradicting each other. In the given facts, Para 14 and Para 15 of the 2007 procedure cannot be overwritten by the RTI Act 2005 as it occupies the field in the way other subordinate legislations occupy the field. The Commission is also in agreement with the averments made by the CPIO that irrespective of the fact that the application is accepted or rejected by the Settlement Commission, it does not alter the character of the information.
Therefore, the order of the First Appellate Authority is set aside and order of the CPIO is upheld on this count with the observations that CPIO has correctly applied the law with incisive understanding of the issue at hand. On the contrary, the First appellate Authority has erroneously conflated the issue of information disclosure with the usage of disclosed information. Section 6(2) of RTI Act specifically bars the requirement of giving reasons for the requested information. In view of the statutory bar, no decision can be based on some future eventuality. The departmental proceedings follow dictions of rule of law and natural justice. Any eventuality which may arise will also come with an opportunity to the Information Seeker to ask for relevant information relating to provisions of the Conduct Rules and Cr. P.C. The applicant in the present case cannot take recourse to the RTI Act to challenge a judicial decision regarding disclosure of a given set of information, which properly belongs to the jurisdiction of that judicial authority. If the Applicant is or will be aggrieved with the decision of the Departmental or Law Enforcement Authorities, the remedy will lie elsewhere and not in preempting the issue and start acting on it.
13. With these directions, the appeal is allowed.
14. Copy of this decision be sent to the parties.
Sd/-
(A. N. Tiwari) Information Commissioner