Kamal Kishore Arora vs Department Of Industrial Policy & ... on 26 April, 2022

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Central Information Commission

Kamal Kishore Arora vs Department Of Industrial Policy & ... on 26 April, 2022

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/DOIPP/A/2020/672232

Kamal Kishore Arora                                ......अपीलकता/Appellant

                                      VERSUS
                                       बनाम

CPIO,
Intellectual Property Office,
RTI Cell, Plot No. 32,
Sector-14, Dwarka - 110078, Delhi.                 .... ितवाद गण /Respondent


Date of Hearing                   :   08/03/2022
Date of Decision                  :   22/04/2022

INFORMATION COMMISSIONER :            Saroj Punhani

Relevant facts emerging from appeal:

RTI application filed on          :   06/01/2020
CPIO replied on                   :   21/01/2020
First appeal filed on             :   31/01/2020
First Appellate Authority order   :   26/02/2020
2nd Appeal/Complaint dated        :   30/05/2020

Information sought

The Appellant filed an RTI application dated 06.01.2020 seeking the following information:

a) Registration-Application on Form XVI;

b) Statement of Particulars thereof;

c) Statement of Further Particulars thereof;

d) Power-of-Attorney thereof;

e) Search-Certificate No.TMR-A-CC-95935 dated 14-6-2019;

f) Artistic-Work entitled ' GARIMAA GOLD ';

g) Certificate of Registration of Copyright of Artistic-Work entitled ' GARIMAA GOLD ' No.A-130837/2019;

h) Artistic-Work along therewith, and

i) All the Notes, Orders, Order/Note Sheets & documents forming part of the official-records of the Copyright-Office pertaining to the aforesaid R.O.C. No.A-

130837/2019.

The CPIO replied to the appellant on 21.01.2020 stating as follows:-

"..Whole paragraph is as follows-1. As per section 8(d) of RTI ACT- information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; So your request comes under section 8(d) of RTI ACT.

2. In case you want any documents pertaining to any diary number you need to file an application for seeking certified copies by requesting Hon'ble registrar to provide certified copies of so and so diary number along with 500 rs of DD in the name of registrar of copyright and all requisites belonging to that diary number should also be mentioned in the application."

Being dissatisfied, the appellant filed a First Appeal dated 31.01.2020. FAA's order dated 26.02.2020 directed the CPIO to give a written notice to the concerned third party of the instant request made by the appellant and invite submissions thereof. On receipt of their consent or otherwise, necessary action in this regard would be taken. Further, the CPIO is also directed to update the appellant of the communications made with the concerned party in this regard.

In compliance with the FAA's order, CPIO furnished reply to the appellant on 03.03.2020 informing him about the denial of consent received from the third party.

Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal.

Relevant Facts emerging during Hearing:

The following were present:-

Appellant: Represented by Gaurav Arora present through audio conference. Respondent: Ruchi Sharma, Examiner of Copyright & Rep. of CPIO present through audio conference.

The Representative of the Appellant vehemently objected to the denial of the information by the CPIO under Section 8(1)(d) of the RTI Act. The sum and substance of his argument was primarily the inconsistent stand of the CPIO stated in their reply of 21.01.2020 wherein, on one hand the information is being denied under RTI provisions while on the other hand, the CPIO is offering to provide the documents under the Copyrights Act against payment of prescribed fees. He further placed on record certain cases in which Commission has ordered relief in the Appellant's cases in similar facts and circumstances citing the overriding clause of Section 22 of the RTI Act. He furthermore argued that once a Copyright has been granted, all related records are accessible to the public as per Section 47 & 73 of the Copyrights Act, 1957. He also brought on record that the information is required in pursuance of a dispute in the Court of Law against the averred third party and the Registrar is ought to provide access to these records to the Appellant.

The Rep. of CPIO submitted that it is her understanding that the information sought for stands exempted under the RTI Act as per Section 8(1)(d) of the RTI Act but if the Commission so directs, the CPIO can part with the information.

Decision:

The Commission based on a perusal of the facts on record observes that prior to the hearing, on 03.03.2020, I S Juneja, Deputy Registrar & CPIO conveyed his intention to disclose the information to the third party and sought for their consent as per the procedure laid down under Section 11 of the RTI Act. In response, the third party through their advocate conveyed the denial of their consent vide letter dated 12.03.2020 stating inter alia that the Appellant is acting on behalf of one of the competitors of the third party and therefore the information sought for entails commercial confidence.

Notwithstanding the foregoing findings, it is pertinent to note that concededly the contents of the CPIO's reply lacks congruence and is to an extent a misleading reply in as much as either the information could have been denied under Section 8(1)(d) of the RTI Act or the Appellant could have been intimated about the alternate mode of seeking the records as per the provisions of Copyrights Act, 1957. The CPIO could not have mentioned both in conjunction and rendered the sanctity of Section 8(1)(d) of the RTI Act open to challenge in the facts of the instant case. Even further, the CPIO through his representative failed to discharge the onus of justifying the denial of the information as required under Section 19(5) of the RTI Act, infact, the CPIO has also conveyed the intent to disclose the information to the third party prior to the hearing. The CPIO's stand throughout the case has been wavering and severely lacks clarity, in as much as the CPIO failed to appreciate the fact that while allowing access to the information under a corresponding law negates the purpose of quoting an exemption clause of the RTI Act to deny the information.

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-à-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." Emphasis Supplied Further, if any of the information sought for in the RTI Application is not open for public access under the Copyrights Act, 1957, the CPIO shall reiterate the denial of 4 the information against that point/portion under Section 8(1)(d) of the RTI Act in the revised reply.

The above directions shall be complied with by the CPIO within 15 days from the date of receipt of this order under due intimation to the Commission.

The appeal is disposed of accordingly.

सरोजपुनहािन) Saroj Punhani (सरोजपु हािन सूचनाआयु%) Information Commissioner (सू Authenticated true copy (अिभ मा'णत स(या)पत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 5

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