Central Information Commission
Subrata Guha Ray vs Cbec on 20 July, 2017
CENTRAL INFORMATION COMMISSION
2nd Floor, August Kranti Bhawan
Bhikaji Cama Place, New Delhi-110066
website:cic.gov.in
Appeal No.:-CIC-CBECM-A-2016-300246-BJ
Appellant : Mr. Subrata Guha Ray
136, C S Mukherjee Street, Konnagar,
Hooghly-712235
M. 9804826158
Respondent : CPIO
O/o. the Commissioner of Customs
Air Cargo Complex, NSCBI Airport, Dum Dum
Kolkata-700052
Date of Hearing : 20.07.2017
Date of Decision : 20.07.2017
Date of filing of RTI applications 24.02.2016
CPIO's response 04.03.2016,
28.03.2016 and
30.04.2016
Date of filing the First appeal 27.05.2016
First Appellate Authority's response 19.07.2016
Date of diarised receipt of second appeal by the 22.08.2016
Commission
ORDER
FACTS:
The Appellant vide his RTI application sought information on 06 points regarding detailed and complete status report and action taken report of the Complaint No. "Non-Compliance of the CIC order" dated 04.02.2016 and action taken on "Fraudulent Export 2008 File" dated 04.02.2016 and issues related thereto.
The US, Ministry of Finance, Department of Revenue, CBEC, New Delhi vide its letter dated 04.03.2016, transferred the RTI application to CPIO, O/o Chief Commissioner of Customs (Kolkata Zone), Kolkata. The Asst. Commissioner of Customs, Chief Commissioner's Office, Kolkata in turn transferred the RTI application to the Pr. Commissioner of Customs (Airport and ACC), Customs House, Kolkata on 28.03.2016. Subsequently, the Dy./ Commissioner of Customs, SIB, ACC, NSCBI Airport, Kolkata provided a point wise response to the Appellant on 30.04.2016. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide it order dated 19.07.2016, concurred with the response of the CPIO.
HEARING:
Facts emerging during the hearing:
The following were present:Page 1 of 5
Appellant: Mr. Subrata Guha Ray (M. 9804826158) through VC Respondent: Absent.
The Respondent remained absent, despite prior intimation. Mr. Kapil, Representative of NIC Studio, Kolkata confirmed the absence of the Respondent. The Appellant drew attention of the Commission on the orders issued by the CIC in file No. CIC/KY/A/2014/001096 dated 24.02.2015 as also in File No. CIC/KY/A/2015/000393 dated 22.06.2015 and contended that incorrect orders were issued by the Commission. It was submitted that the contradictory stand was taken by the Respondent authority at different times and stated that from 2012-2015, in all the replies, the CPIO, O/o Commissioner of Customs (Kolkata Airport) rejected the information as per Section 8 (1) (h) of the RTI Act, 2005. However, vide letter dated 18.12.2015, the Commissioner (Coord), Ministry of Finance, Department of Revenue stated that vide letter dated 15.01.2016, CPIO and Dy. Commissioner of Customs, SIB AC, NSCBI Airport, Kolkata, provided information to the Applicant that "there is no such Fraudulent Export File 2008" (Goods was leather shoe case upper portion) opened in SIB Unit (ACC, Airport)" was contrary to the information provided earlier "the details of fraudulent export cases pending investigation cannot be investigated under Section 8 (1) (h) of the RTI Act, 2005". A reference was also drawn to a letter dated 15.01.2016, sent by CPIO and Dy. Commissioner of Customs, SIB, ACC ANSCI Airport, Kolkata wherein as well it was stated that there was "no such ""Fraudulent Export File 2008" (Goods was leather shoe case Upper Portion) opened in SIB Unit (ACC Airport)". The Appellant in his written submission dated 26.05.2017 submitted that it was tactics of the Public Authority to delay matters and invoke Section 8 (1) (h) of the RTI Act, 2005 and that order of the CIC in File No. CIC/KY/A/2014/001096 dated 24.02.2015 had nothing to do with remanding the case to the FAA. It was therefore submitted that an incorrect decision had been arrived at by the Commission in File No. CIC/KY/A/2015/000393 dated 22.06.2015. In addition, it was prayed that he should be informed about the status of the case.
The Respondent was not present to contest the submission of the Respondent or to substantiate his claims further.
The Commission noted that in a similar matter in appeal No. CIC/SB/A/2016/001025/CBECE-BJ dated 30.01.2017 and 03.03.2017, a decision was already communicated to the Appellant. The Commission noted that RTI Act, 2005, does not confer any power of review of its own decision. It was also observed that several queries of the Appellant in the RTI application dated 24.02.2016 were not comprehensible.
In this context the following extracts of the decision of the Hon'ble High Court of Delhi in Delhi Development Authority v. Central Information Commission and Another WP (c) 12714/2009 dated 21.05.2010 are relevant:
"35. Yet another instance of the complete transgression of the statutory powers is to be found in Regulation 23. The said regulation, inter alia, provides that an appellant or a complainant or a respondent may, notwithstanding that the decision or order of the Commission is final, make an application to the Chief Information Commissioner for special leave to appeal or review of a decision or order of the case and mention the grounds for such a request. It further seeks to empower the Chief Page 2 of 5 Information Commissioner, to consider and decide such a request as he thinks fit. Neither the RTI Act nor the rules framed thereunder grant the power of review to the Central Information Commission or the Chief Information Commissioner. Once the statute does not provide for the power of review, the Chief Information Commissioner cannot, without any authority of law, assume the power of review or even of a special leave to appeal. Clearly, the said regulation is beyond the contemplation of the Act. Such a regulation is ultra vires the provisions of the Act."
The Commission also observed that under the provisions of the RTI Act, 2005, only such information as is available and existing and held by the public authority or is under control of the public authority can be provided. The PIO is not supposed to create information that is not a part of the record. He is also not required to interpret information or furnish replies to hypothetical questions. Similarly, redressal of grievance, reasons for non compliance of rules/contesting the actions of the respondent public authority are outside the purview of the Act.
In this context, the decision of the Hon'ble Supreme Court of India in Khanapuram Gandiah v. Administrative Officer and Ors. in SLP (C).34868 OF 2009 (Decided on January 4, 2010) can be cited where it was 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."
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."
Also the Hon'ble Supreme Court in SLP(C) NO. 7526/2009 (CBSE & Anr. Vs. Aditya Bandopadhyay & Ors) had held that:
Page 3 of 5"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing. This is clear from a combined reading of section 3 and the definitions of 'information' and 'right to information' under clauses (f) and (j) of section 2 of the Act. If a public authority has any information in the form of data or analysed data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions in section 8 of the Act. But where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non-available information and then furnish it to an applicant. A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. 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 High Court of Bombay in Dr. Celsa Pinto, Ex-Officio Joint Secretary (School Education) vs The Goa State Information on 3 April, 2008 (2008 (110) Bom L R 1238) has 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 High court of Madras in W.P.No.26781 of 2013 & M.P.No.1 of 2013(The Public Information Officer And others v. The Central Information Commission) decided on 17.9.2014 had also held the following:
Page 4 of 5"Before we go into the merits of the case, let us consider the relevant provisions of the RTI Act for the purpose of deciding this case, which read as follows: The RTI Act defines "information" under Section 2(f) as follows: "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." Likewise, it defines "right to information" under Section 2(j) as follows: "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 the right to-(i) inspection of work, documents, records; (ii) taking notes, extracts or certified copies of documents or records; (iii) taking certified samples of material; (iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device."
In the decision reported in 2010 (2) SCC 1 (Khanapuram Gandaiah Vs. Administrative Officer), the Honourable Supreme Court has observed that the applicant under the RTI Act cannot ask for any information as to why such opinions, advices, circulars, orders, etc., have been passed."
On a query from the Commission whether the Appellant had approached any superior Court in respect of the judgements pronounced by the Commission or any other competent authority, he replied in the negative.
DECISION Keeping in view the facts of the case and the submissions made by the Appellant and in light of the earlier decisions pronounced by the Commission, no further intervention of the Commission is warranted in the matter.
The Appeal stands disposed accordingly.
(Bimal Julka) Information Commissioner Authenticated True Copy:
(K.L.Das) Deputy Registrar Page 5 of 5