Central Information Commission
Mrl G Dass vs Government Of Nct Of Delhi on 22 August, 2014
CENTRAL INFORMATION COMMISSION
(Room No.315, BWing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110 066)
CIC/AD/A/2013/001687SA
Appellant : L.G.Dass
Respondent : Patiala House Court
Date of hearing : 27.6.2014
Date of decision : 22.8.2014
Information Commissioner : Prof. M. Sridhar Acharyulu
(Madabhushi Sridhar)
Referred Sections : Sections 3, 19(3), 25(5)
Of the RTI Act
Result : Appeal allowed /
disposed of
Summary of findings:
The rule making power under delegated legislation need to be within the four corners of the Act under which it is made and cannot transgress. When the apex court of law the Supreme Court is following the common rules made by DoPT under RTI Act, there is no reason or point in some of High Courts making contradictory rules.
The rule and practice of the respondent public authority as far as imposition of fee of Rs 50 for first appeal is concerned, does not conform with the provisions and spirit of RTI Act. As per section 25(5) the Commission recommends the respondent public authority, the Delhi High Court, to amend the rules to remove CIC/AD/A/2013/001687SA Page 1 the requirement of payment of fee for First Appeal for promotion of conformity with RTI Act, for effective provision of access to information and to bring uniformity with the rules followed by the Supreme Court and many public authorities following the common rules made by DoPT.
Heard on 27.6.14. Appellant present. Public Authority is represented by Shri Amit Kumar Tanwar.
2. The Appellant filed an RTI application dt.6.1.12 with the PIO, Patiala House Court. He stated in his RTI application that after going through certain documents obtained in response to another RTI application that he had found that at page 2 of the charge sheet, father's name of the accused was given Kirtichand Thapar while in the memo of parties filed before Hon'ble Delhi High Court, it is mentioned as Shri C.C. Thapar. Similarly in page 4 and 12 of the charge sheet address of the company namely M/s. Vian Infrastructure Ltd has been as 2H, DCM Building, Barakhamba Road whereas to an another RTI application, the PIO of New Delhi District had informed that the company had shifted to Ground Floor, Videocon Tower, Jhandewalan, Delhi two years ago. He wanted to know which name and address is correct. The PIO replied on 23.1.12 furnishing requisite information. The Appellate Authority disposed of the first appeal vide his order dt.12.4.12. The relevant portion of the order is reproduced below:
5. The appellant is fully aware of the information available in the judicial file pending in the court of Ld.ACMM. The PIO supplied the available information as per the record available i.e. the father's name of accused, Surya Kirti Chand Thapar was Kirti Chand Thapar and that the address of M/s. Vian Infrastructure Ltdf. Was 2H DCM Building, Barakhamba Road, New Delhi.
6. The Appellant has stated that the aforesaid information is totally incomplete, misleading and irrelevant and virtually amounts to not providing any information. The appellant was dissatisfied with the said information as what he actually desired under the garb of the said application was not information as available in the records, but an inquiry to be made by the Information Officer as to which of the two information available with the appellant was correct.
6. The PIO who was present has substantiated that he has given the correct information as available in the record of the judicial proceedings pending before the Ld. ACMMI. It appears that the grievance of the Appellant is not that he has not been provided with information. His grievance is that PIO ought to have made adequate inquiry.
7. Regrettably that is not the job of the PIO to hold inquiries. His only role is to provide information as available from the records maintained in court.
The Appellant has appeared before me and has stated that Ld. ACMM should have been directed to make an inquiry in this respect. It is beyond the scope of the PIO who in this case is an Administrative Officer, to direct the court (in judicial proceedings) to make inquiry to be provided to the Appellant.
8. Public Information Officer of this court does not have any private body under his control so as to make an inquiry and procure information for the satisfaction of the appellant.
9. The PIO or the APIO is not authorized to give any information which is nonexistent nor can create the same to be supplied to the appellant. It is not for the PIO or APIO to analyze the information for the Appellant as to which of the two data available with him was correct. The PIO is only called upon to supply information accurately in accordance with record available without conceding or withholding any information. He is not required to give his opinion on it.
CIC/AD/A/2013/001687SA Page 3
10. As information available has been supplied to the Appellant, I do not find that the PIO has defaulted in anyway.
11. It appears that the Appellant has not paid the requisite fees. This order be communicated to him on payment of fees. In the event of his not coming personally to take the said order, the same may be communicated to the Appellant at the address furnished by him, if a stamped envelope has been filed by him.
3. During the hearing, the Appellant submitted that he has not been provided with correct information. He also stated that he has been asked to deposit Rs.50/ towards filing of first appeal and also a self addressed stamped envelope for delivering the appeal order. But he was asked to come personally to take delivery of the order of the Appellate Authority. Relying upon CIC Decision No.CIC/SG/A/2009/001997/6358 dt.11.1.10
4. The Commission after hearing the submissions upholds the decision of the Appellate Authority as far as the information sought is concerned.
5. The question left before the Commission, as raised by the appellant during the Second Appeal, is whether the rule made by the High Court with regard to Delhi District Courts (Right to Information) Rules, 2008 is within Section 28 of RTI Act, as the rule encompasses provision which is not available in the parent RTI Act, 2005 itself. Before going into the question, it is necessary to look into the provisions concerning above.
Section 28, Right to Information Act, 2005, Power to make rules by competent authority: (1) The competent authority may, by notification in the Official Gazette, make rules to carry out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-- (i) the cost of the medium or print cost price of the materials to be disseminated under sub section (4) of section 4; (ii) the fee payable under subsection (1) of section 6; (iii) the fee payable under subsection (1) of section 7; and (iv) any other matter which is required to be, or may be, prescribed.
The Hon'ble Delhi High Court while excising its power under Section 28 (1) of RTI Act made the Delhi District Courts (Right to Information) Rules, 2008, under which Rule 11 deals with the provision concerning charging of fees during First Appeal. It states as follows:
11. Appeal to the First Appellate Authority: (a) An appeal preferred by any person under subsection(1) or an appeal preferred by a third party under sub section (2) of section 19 of the Act, shall be accompanied by a fee of rupees fifty, except where the applicant belongs to 'below poverty line' category or the information asked for concerns life or liberty of any person, by way of cash against a proper receipt or by bank draft or bankers cheque or an Indian postal order payable to the District Judge and it shall contain the following:
(i) Name and address of the appellant;
(ii) Particulars of the order including number, if any, against which the appeal is preferred;
(iii) Brief facts leading to the appeal;
(iv) Grounds of appeal;
CIC/AD/A/2013/001687SA Page 5
(v) Relief claimed; and
(vi) Any other information which the First Appellate Authority may require to be filed before hearing the appeal.
(b) .........
The above stated Rule makes it mandatory to pay fee of Rs. 50 for making First Appeal. The Respondents contended that appellant is bound to follow above rule. The Relevant provision with regard to First Appeal under Right to Information Act, 2005 is Section 19 which states as follows:
19. Appeal.--(1) Any person who, does not receive a decision within the time specified in subsection (1) or clause (a) of subsection (3) of section 7, or is aggrieved by a decision of the Central Public Information Officer or State Public Information Officer, as the case may be, may within thirty days from the expiry of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the Central Public Information Officer or State Public Information Officer as the case may be, in each public authority:
Provided that such officer may admit the appeal after the expiry of the period of thirty days if he or she is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
(2) Where an appeal is preferred against an order made by a Central Public Information Officer or a State Public Information Officer, as the case may be, under section 11 to disclose third party information, the appeal by the concerned third party shall be made within thirty days from the date of the order. (3) ......
(4) ....
(5) ....
(6) An appeal under subsection (1) or subsection (2) shall be disposed of within thirty days of the receipt of the appeal or within such extended period not exceeding a total of fortyfive days from the date of filing thereof, as the case may be, for reasons to be recorded in writing.
6. With regard to fees, RTI Act, 2005 states as follows:
Section 6 Request for obtaining Information: (1) A person, who desires to obtain any information under this Act, shall make a request in writing or through electronic means in English or Hindi or in the official language of the area in which the application is being made, accompanying such fee as may be prescribed, to--
(a) the Central Public Information Officer or State Public Information Officer, as the case may be, of the concerned public authority;
(b) the Central Assistant Public Information Officer or State Assistant Public Information Officer, as the case may be, specifying the particulars of the information sought by him or her:
Provided that where such request cannot be made in writing, the Central Public Information Officer or State Public Information Officer, as the case may be, shall render all reasonable assistance to the person making the request orally to reduce the same in writing.
CIC/AD/A/2013/001687SA Page 7 (2) An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.
(3) Where an application is made to a public authority requesting for an information,--
(i) which is held by another public authority; or
(ii) the subject matter of which is more closely connected with the functions of another public authority, the public authority, to which such application is made, shall transfer the application or such part of it as may be appropriate to that other public authority and inform the applicant immediately about such transfer:
Provided that the transfer of an application pursuant to this subsection shall be made as soon as practicable but in no case later than five days from the date of receipt of the application.
Section 7 Disposal of request: (1) Subject to the proviso to subsection (2) of section 5 or the proviso to subsection (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request under section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in sections 8 and 9:
Provided that where the information sought for concerns the life or liberty of a person, the same shall be provided within fortyeight hours of the receipt of the request.
(2) ...
(3) Where a decision is taken to provide the information on payment of any further fee representing the cost of providing the information, the Central Public Information Officer or State Public Information Officer, as the case may be, shall send an intimation to the person making the request, giving
(a) .....
(b) ......
(4) .....
(5) Where access to information is to be provided in the printed or in any electronic format, the applicant shall, subject to the provisions of subsection (6), pay such fee as may be prescribed:
Provided that the fee prescribed under subsection (1) of section 6 and sub sections (1) and (5) of section 7 shall be reasonable and no such fee shall be charged from the persons who are of below poverty line as may be determined by the appropriate Government.
(6) .....
(7) .....
(8) .......
(9) .....
Right to Information (Regulation of fees and Cost) Rules, 2005 as notified by the Central government on 16092005 prescribes the fees, which is to be read with the above provisions.
Contradiction:
CIC/AD/A/2013/001687SA Page 9 With regard to fee for seeking information under Section 6 (1), the applicant has to pay the amount as per Right to Information (Regulation of fee and cost) Rules, 2005. The fee prescribed in the above rule is with regard to Section 6 (1) of RTI Act, that is the fee which is to given at the time of filling of RTI application and for obtaining copies or for inspection of records etc. Right to Information (Regulation of fee and cost) Rules, 2005 and RTI Act, 2005 does not prescribe any fee which is to be given at the time of filling of First Appeal or in Second Appeal.
7. The Commission has dealt with Delhi High Court (Right to Information) Rules, 2006 which is similar to Delhi District Courts (Right to Information) Rules, 2008, in S.C. Agrawal Vs. CIC [CIC/WB/C/2008/00871 & 872], the question was as to whether Delhi High Court has the authority to fix a fee of Rs. 50/ per application, while DoPT vide its Notification GSR No. 336 dated 16th September 2005 has prescribed a fee of Rs. 10/.
The Commission referred to the following provisions:
Sec. 2 (e) "Competent authority" means--
(i) the Speaker in the case of the House of the People or the Legislative Assembly of a State or a Union territory having such Assembly and the Chairman in the case of the Council of States or Legislative Council of a State;
(ii) the Chief Justice of India in the case of the Supreme Court;
(iii) the Chief Justice of the High Court in the case of a High Court;
(iv) the President or the Governor, as the case may be, in the case of other authorities established or constituted by or under the Constitution;
(v) the administrator appointed under article 239 of the Constitution;
This is to be read with Section 28 of the RTI Act 2005, which says:
Sec 28: (1) The competent authority may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:--
(i) the cost of the medium or print cost price of the material to be disseminated under subsection (4) of section 4; (which deals with costeffectiveness)
(ii) the fee payable under subsection (1) of section 6; (which says such fee as may be prescribed...)
(iii) the fee payable under subsection (1) of section 7; (which says any further fee representing the cost of providing the informaiton,...) and
(iv) any other matter which is required to be, or may be, prescribed Thus, it is clear that the fee payable under subSection (1) of Sections 6 and 7 has to be prescribed by the competent authority by Rules provided to carry out the provisions of this Act. The CJ of the High Court is the competent authority of the High Court and the President of India, who is represented in this matter through the administrative Ministry, the competent authority for all organizations not otherwise listed in subsection (e) of Sec
2. In no way therefore is the High Court of Delhi governed by the RTI (Regulation of Fee & Cost Rules) 2005 of the DoPT.
In both these cases the appropriate 'competent' authorities have published the Rules. This Commission has no jurisdiction to rule on the matter. However, this authority to make rules is qualified by the proviso to Section 7 (5), which states: Provided that the fee prescribed under subsection (1) of section 6 and subsections (1) and (5) of section 7 shall be reasonable and no such fee shall be charged from the persons who are of below poverty line as may be determined by the appropriate Government.
CIC/AD/A/2013/001687SA Page 11 It is for this reason that this Commission had under the authority vested in us under sub Section 5 of Section 25 recommended to the Hon'ble High Court of Delhi that they might review the fee initially prescribed in their Rules, which had then been kept at Rs. 500/. In its wisdom the Hon'ble High Court of Delhi accepted that recommendation and the fee has now been brought down to Rs. 50/.
8. The Commission has a duty to examine whether the rules provided will fulfill the object of 'carrying out the provisions of RTI Act'.
The Commission subsequently in Shri Omkar Prasad Maheshwari Vs. High Court of Delhi, New Delhi [CIC/WB/C/2008/00230] wherein the issue before the commission was with regard to prescribed application fee payable to the Registrar General High Court of Delhi.
The Commission observed that:
"Prescribed" as mentioned under Section 2(g) means "prescribed by rules made under this Act by the appropriate Government or the Competent Authority as the case may be".
Under section 2 (e) (iii) of the Right to Information Act, 2005 the Chief Justice of High Court is the 'Competent Authority' so designate, and hence the Rules framed to carry out the provisions of this Act regarding the fee payable under Sub Section (1) of Section 6 and under subsection (1) of section 7 is in accordance with the Right to Information Act, 2005 In a decision in CIC/WB/C/2008/00402 the Commission had taken the same view that the Chief Justice of High Court is Competent Authority and hence the rules framed to carry out the provisions of this Act regarding the fee payable under Sub Section (1) of Section 6 and under subsection (1) of section 7 is in accordance with the Right to Information Act, 2005. This is about competence of the Chief Justice of High Court as Competent Authority to frame rules, which is undisputed and undoubted.
The question now is whether the rules framed by competent authority would facilitate the object, i.e., carrying out of the provisions of the RTI Act, as mandated by Section 28.
The Commission in Y.N Prasad v. High Court of Delhi [CIC/WB/A/2008/001278] observed that:
"The issue herein hinges on payment of fee. The Delhi High Court Right to Information Rules are clear in fixing the fee for RTI applications before High Court of Delhi at Rs. 50/. Appellant's plea that this is in violation of the Act is unfounded since under the definition of "competent authority" it is the Chief Justice of the High Court in the case of the High Court who is the competent authority under Section 2 (e) (iii).
The competent authority, in turn, makes rules to carry out the provisions of this Act under section 28 (1). These rules specifically cover the fee payable under sub section (1) of Section 6 and the fee payable under sub Section (1) of Section 7. Nevertheless, we find that information has indeed been provided by PIO Shri P. S. Chaggar in his letter of 10.7.2008 insofar as it was CIC/AD/A/2013/001687SA Page 13 accessible in his view under the RTI Act. If dissatisfied with this response appellant Shri Prasad is free to move an appeal before the first appellate authority contesting this response. Instead, his appeal contested only the question of fee since no first appeal was made after 10.7.2008, but only a second appeal before this Commission. Nevertheless, if he wishes to move an appeal under section 19 (1) before the appellate authority in the High Court of Delhi, appellant Shri Prasad is advised to first liquidate the full fee due under High Court Rules In this matter his attention is also invited to the decision of this Commission in Full Bench in CIC/WB/A/2006/00839 and CIC/WB/A/2006/00900; Manish Khanna vs. High Court of Delhi, wherein we (Delhi HC) have ruled on what information comprised judicial functions of the High Court and what were its administrative functions. It was also examined whether such a determination can be made under the RTI Act, or by the Courts themselves under powers that they exercise under the Constitution and hence the applicability of the Right to Information to the information of this nature held in the High Court". RTI Rules by High Courts:
A. Bombay High Court Right to Information (Revised Rules), 2009 :
Procedure for Application and its Disposal
4. A person who desires to obtain information under Right to Information Act, shall make a requisition in a self signed application in FormA appended hereto to the Public Information Officer, accompanied by a fee of rupees ten by way of cash against proper receipt or by demand draft or banker's cheque or money order payable to the public authority or by affixing a court fee stamp of rupees ten and a selfaddressed envelope bearing postal stamps equivalent to the rate prescribed for Registered Post with acknowledgement due (RPAD) along with the application.
Procedure to be adopted after presentation of application
6. The Public Information officer shall decide as to whether the information desired by the applicant can be provided or the inspection of record can be carried out as per rules. If he decides affirmatively then he shall inform the applicant in Form -B appended hereto about the fee prescribed for supplying of such information and approximate postal charges thereof before providing the desired information. In case the application is received by post, the Public Information Officer shall inform the applicant about the prescribed fee in FormB through the envelope received alongwith the application. He shall supply the desired information or record for inspection only after the deposit of prescribed fee as per Rule 17 bny the applicant. If the applicant desires to seek information by post, he shall submit a self addressed envelope with postal stamps equivalent to the rate prescribed for Registered Post with Acknowledgement Due (RPAD) alongwith the prescribed fee on receipt of the intimation by the Public Information Officer to that effect. If the said fee is not deposited within 15 days, the application shall stand rejected. .......
10(1) If the applicant seeks any information with respect to a Third Party he shall send/submit an application with said details, accompanied by a fee of rupees ten by way of cash against proper receipt or by demand draft or banker's cheque or money order payable to the public authority or by affixing a court fee stamp of rupees ten CIC/AD/A/2013/001687SA Page 15 and a self addressed envelope bearing postal stamps equivalent to the rates prescribed for RPAD along with the application.
(2) On receipt of such application, Public Information Officer shall register the application in the register maintained in his office for that purpose and deal with it as provided under Section 11 of the Act.
(3) If the information, sought by the applicant, is in respect of judicial proceedings or record he shall obtained the information as per the procedure prescribed for obtaining certified copies under the Rules and Orders for the time being in force in that behalf.
(4) In the event the Public Information Officer rejects the Application for information, he shall inform the applicant in FormC. Procedure for Inspection of Records:
12. During inspection, the applicant shall not have any right to put any mark on the record. During inspection of record, if the applicant wishes to make notes, he shall make them on a plain paper and after inspection he shall show the note/s to the Public Information Officer, who after being satisfied that the applicant has not tampered with the record in any way, shall return such note/s to the applicant.
13. Exemption from disclosure of information:
The information specified under Section 8 of the Act shall not be disclosed and made available, and, in particular the following information shall not be disclosed:
(a) Such information which is not in the Public domain;
(b) Information which relates to Judicial functions and duties of the Courts and matters incidental and ancillary thereto;
.....
(e) Any information affecting the confidentiality of any examination conducted by the Bombay High Court including for the Maharashtra Judicial Service and Maharashtra Higher Judicial Service. The question of confidentiality shall be decided byt he Competent Authority whose decision shall be final.
(f) Information/copy/ies inspection with respect to cases pending in Court, which shall be obtained from the Court, as per the rules and orders in force for the time being;
...
(h) Information which is contained in published material available to the Public or which is available on the Web Site.
....
Appeal
15.Any person who does not receive any decision within the time prescribed under clause (a) of subsection (3) or subsection (1) of Section (7) of the Act, as the case may be, or who is aggrieved by the decision of the public information officer or assistant public information officer, as the case may be, may prefer an appeal in writing to the Registrar General, High Court of Judicature at Bombay or any other officer as nominated by the Chief Justice for Nagpur, Aurangabad and Goa, who is the First Appellate Authority accompanied by the appeal fee of rupees 20 by way of cash against proper receipt or by demand draft or bankers cheque or money order payable to the public authority or by affixing a court fee stamp of Rs 20. The memo of the said appeal shall contain in brief, the particulars regarding the case, the CIC/AD/A/2013/001687SA Page 17 grounds of appeal and a certified copy of the order passed by the public information officer. The appeal shall be disposed of by the First Appellate Authority, after providing an opportunity of a hearing to the parties.
B. Maharashtra District Court, Right to Information Rules 2009:
Procedure for Application and its Disposal
4. A person who desires to obtain information under Right to Information Act, shall make a requisition in a self signed application in FormA appended hereto to the Public Information Officer, accompanied by a fee of rupees ten by way of cash against proper receipt or by demand draft or banker's cheque or money order payable to the public authority or by affixing a court fee stamp of rupees ten and a selfaddressed envelope bearing postal stamps equivalent to the rate prescribed for Registered Post with acknowledgement due (RPAD) along with the application.
Procedure to be adopted after presentation of application
6. The Public Information officer shall decide as to whether the information desired by the applicant can be provided or the inspection of record can be carried out as per rules. If he decides affirmatively then he shall inform the applicant in Form -B appended hereto about the fee prescribed for supplying of such information and approximate postal charges thereof before providing the desired information. In case the application is received by post, the Public Information Officer shall inform the applicant about the prescribed fee in FormB through the envelope received along with the application. He shall supply the desired information or record for inspection only after the deposit of prescribed fee as per Rule 17 to the applicant. If the applicant desires to seek information by post, he shall submit a self addressed envelope with postal stamps equivalent to the rate prescribed for Registered Post with Acknowledgement Due (RPAD) alongwith the prescribed fee on receipt of the intimation by the Public Information Officer to that effect. If the said fee is not deposited within 15 days, the application shall stand rejected. .......
10(1) If the applicant seeks any information with respect to a Third Party he shall send/submit an application with said details, accompanied by a fee of rupees ten by way of cash against proper receipt or by demand draft or banker's cheque or money order payable to the public authority or by affixing a court fee stamp of rupees ten and a self addressed envelope bearing postal stamps equivalent to the rates prescribed for RPAD along with the application.
(2) On receipt of such application, Public Information Officer shall register the application in the register maintained in his office for that purpose and deal with it as provided under Section 11 of the Act.
(3) If the information, sought by the applicant, is in respect of judicial proceedings or record he shall obtained the information as per the procedure prescribed for obtaining certified copies under the Rules and Orders for the time being in force in that behalf.
(4) In the event the Public Information Officer rejects the Application for information, he shall inform the applicant in FormC. Procedure for Inspection of Records:
CIC/AD/A/2013/001687SA Page 19
12. During inspection, the applicant shall not have any right to put any mark on the record. During inspection of record, if the applicant wishes to make notes, he shall make them on a plain paper and after inspection he shall show the note/s to the Public Information Officer, who after being satisfied that the applicant has not tampered with the record in any way, shall return such note/s to the applicant.
13. Exemption from disclosure of information:
The information specified under Section 8 of the Act shall not be disclosed and made available, and, in particular the following information shall not be disclosed:
(a) Such information which is not in the Public domain;
(b) Information which relates to Judicial functions and duties of the Courts and matters incidental and ancillary thereto;
.....
(e) Any information affecting the confidentiality of any examination conducted by the Bombay High Court including for the Maharashtra Judicial Service and Maharashtra Higher Judicial Service. The question of confidentiality shall be decided byt he Competent Authority whose decision shall be final.
(f) Information/copy/ies inspection with respect to cases pending in Court, which shall be obtained from the Court, as per the rules and orders in force for the time being;
...
(h) Information which is contained in published material available to the Public or which is available on the Web Site.
Appeal
14. Any person who does not receive any decision within the time prescribed under clause (a) of subsection (3) or subsection (1) of Section (7) of the Act, as the case may be, or who is aggrieved by the decision of the public information officer or assistant public information officer, as the case may be, may prefer an appeal in writing to the Principal District Judge or any other officer not below the rank of the District Judge (Entry level) as nominated by the Chief Justice, who is the First Appellate Authority accompanied by the appeal fee of rupees 20 by way of cash against proper receipt or by demand draft or bankers cheque or money order payable to the public authority or by affixing a court fee stamp of Rs
20. The memo of the said appeal shall contain in brief, the particulars regarding the case, the grounds of appeal and a certified copy of the order passed by the public information officer. The appeal shall be disposed of by the First Appellate Authority, after providing an opportunity of a hearing to the parties. C. Madras High Court (Regulation of fee and cost) Rules 2007:
Rule 3. Fees Every application for obtaining information under subsection (1) of Section 6 of the Act shall be accompanied by an application fee of rupees Ten.
Rule 4. Charges - For providing the information under Section 7 (1) and (5) of the Act, the following charges are payable:
(a) The application requiring copy of order, judgment/statements/reports shall accompany, in addition to the application fee, a sum of Rs 100 towards cost. If, the actual cost of charges for information exceeds Rs. 100 then the same would be intimated to the applicant and the copy of information would be furnished on payment of excess amount ; and CIC/AD/A/2013/001687SA Page 21
(b) for information to be provided in a diskette or a floppy a sum of Rs. 50.
The fees/charge's payable under Rule 3 & 4 shall be paid either in cash or Court Fee stamp or Demand Draft/Postal Order drawn in favour of PIO, High Court, Madras/Treasury Challan.
D. Allahabad High Court (Right to Information) Rules, 2006 :
In exercise of the powers conferred by Section 28 of the Right to Information Act, 2005 (22 of 2005) the Chief Justice, High Court of Judicature at Allahabad hereby makes the following rules to carry out the provisions of the Act.
3. Every application shall be made for one particular item of Information only.
4. Each application shall be accompanied by cash or draft or pay order of Rs.
500/ drawn in favour of the Registrar General, High Court, Allahabad, or the District Judge of the concerned District Court as the case might be.
5. If the application is permitted, the applicant shall be entitled to the Information only after he makes payment in cash at the rate of Rs. 15/ per page of information to be supplied to him.
......
24. If any person does not receive the desired information or decision for rejecting the request within the time specified in the Act, he/she may prefer an appeal to the appellate authority notified under rules of the Act within thirty days from expiry of the period stipulated in the Act or within thirty days from the receipt of decision of rejection of his request by the Central Public Information Officer.
25. Central Public Information Officer shall not be liable to provide any information, which can be obtained under the provision of the Allahabad High Court Rules, 1952 in case of High Court and under General Rule (Civil/Criminal) in case of subordinate Courts. Such information may be obtained by adhering to the prescribed procedure and payment of fees prescribed in the Allahabad High Court Rules, 1952, or General Rules (Civil/Criminal), as the case may be.
26. Central Public Information Officer will not entertain any application from any citizen for providing any information relating to matters, which are pending adjudication before the High Court or Courts subordinate thereto. The information relating to judicial matters may be obtained as per the procedure prescribed in the Allahabad High Court Rules 1952 and General Rules (Civil/Criminal) respectively.
27. Central Public Information Officer will not entertain any application from any citizen for inspection of any record which can be inspected under the Allahabad High Court Rules 1952 and General Rules (Civil/Criminal) as the case may be. E. Karnataka High Court Right to Information (Regulation of Fee and Cost) Rules, 2005.
In exercise of the powers conferred by Section 28 of the Right to Information Act, 2005, the High Court of Karnataka makes the following rules, namely:
CIC/AD/A/2013/001687SA Page 23
3. A request for obtaining information under subsection (1) of the Section 6 shall be accompanied by an application fee of Rs.10/ (Ten) by way of cash against a proper receipt payable in the name of Registrar General.
4. For providing the information under subsection (1) of Section 7, the fee shall be charged by way of cash against proper receipt payable to Registrar General at the following rates: a. Rs.3/ for each page (in A4 or A3 size paper) created or copied; b. Actual charge or cost price of a copy in larger size paper; c. Actual cost or price for samples or models; and d. For inspection of records no fee for the first hour and a fee of Rs.5 for each fifteen minutes (for fraction thereof); thereafter
5. For providing the information under subsection (5) of Section 7 the fee shall be charged by way of cash against proper receipt payable to the Registrar General at the following rates:
(a) For information provided in a diskette or floppy Rs.50/ per diskette or floppy; and
(b) For information provided in printed form at the price fixed for such publication or Rs.2/ per page of photocopy for extracts from the publication.
6. ....
7. ...
8. If the applicant requests that the information be sent by post and pays the requisite postal charges in cash payable in the name of Registrar General, the information shall be sent by registered post in return of acknowledgement and the date of dispatch shall be entered in the dispatch register. F. High Court of Punjab and Haryana (Right to Information) Rules, 2007 Rule 4 Exemption from disclosure of Information:
(1) The Information which relates to judicial functions and duties of the Court and matters incidental and ancillary thereto and of confidential nature shall not be disclosed in terms of Section 8(1)(b) of the Act.
Provided that the question as to which information relates to judicial functions, duties of Court and matters incidental and ancillary or of confidentiality shall be decided by the Competent Authority or his delegate, whose decision shall be final.
(2) Any information affecting the confidentiality of any examination/ selection process conducted by the Punjab and Haryana High Court for any or all categories of posts including that for Punjab/Haryana Civil Services (Judicial Branch) and Punjab/Haryana Superior Judicial Services. Provided that the marks obtained by the candidates in each subject shall be displayed on the website of the Court after the conclusion of the selection process or at any early date, if decided to be disclosed not affecting the confidentially and transparency of selection process. .......
Rule 9 - Penalties
(i)Whoever being bound to supply information fails to furnish the information asked for, under the Act, within the time specified or fails to communicate the CIC/AD/A/2013/001687SA Page 25 rejection order, shall be liable to pay a penalty up to fifty rupees per day for the delayed period beyond thirty days subject to a maximum of five hundred rupees per application, filed under rule 3 as may be determined by the appellate authority.
(ii) Where the information supplied is found to be false in any material particular and which the person is bound to supply it knows and has reason to believe it to be false or does not believe it to be true, the person supplying the information shall be liable to pay a penalty of one thousand rupees, to be imposed by the appellate authority.
Rule 10 - Suo Moto publication of information by Public authorities Rule 11 - Maintenance of records G. The Gujarat High Court (Right to Information) Rules, 2005
4. Disposal of application by the authorized person:
(5) Exemption from disclosure of information The information specified under Section 8 of the Act shall not be disclosed and made available and in particular the following information shall not be disclosed:
(a) Any information which is not in the public domain or does not relate to judicial functions and duties of the Court and matters incidental and ancillary thereto.
(b) ........
(c) Any information affecting the confidentiality of any examination
conducted by the Gujarat High Court including Gujarat Judicial Service and Gujarat Higher Judicial Service. The question of confidentiality shall be decided by the Competent Authority whose decision shall be final. (6) Any information which is to be furnished and access to records shall be subject to the restrictions and prohibitions contained in rules / regulations and destruction of records in force from time to time which may have been notified or implemented by this Court.
(7) No Judicial Officer shall be compelled to appear in person before any Authority, State Chief Information Commissioner or State Information Commissioner under the Right to Information Act, 2005, if he has made necessary arrangement for production or supply of materials required under the said Act.
5. Appeal.
(1) Any person--
(a) who fails to get a response in Form C or Form D from the authorised
person within thirty days of submission of Form A, or
(b) is aggrieved by the response received within the prescribed period,
appeal in Form F to the Appellate Authority [and deposit fee for appeal as per rule 8 with the appellate authority.] (Deleted vide High Court Notification No.C.3001/2005, dated 09.11.2006) CIC/AD/A/2013/001687SA Page 27 (2) On receipt of the appeal, the Appellate Authority shall acknowledge the receipt of appeal and after giving the applicant an opportunity of being heard, shall endeavour to dispose it of within thirty days from the date on which it is presented and send a copy of the decision to the authorised person concerned. (3) In case the appeal is allowed, the information shall be supplied to the applicant by the authorised person within such period as ordered by the Appellate Authority. This period shall not exceed thirty days from the date of the receipt of the order.
6. Penalties. -
(1) Whoever being bound to supply information fails to furnish the information asked for under the Act within the time specified or fails to communicate the rejection order, shall be liable to pay a penalty up to fifty rupees per day for the delayed period beyond thirty days subject to a maximum of five hundred rupees per application, filed under rule 3 as may be determine by the appellate authority. (2) Where the information supplied is found to be false in any material particular and which the person is bound to supply it knows and has reason to believe it to be false or does not believe it to be true, the person supplying the information shall be liable to pay a penalty of one thousand rupees, to be imposed by the appellate authority.
8. Charging of Fee. (1) The authorized person shall charge the fee at the following rates, namely:
(A) Application Fee.
(i) Information relating to Five hundred rupees tender documents/bids/ per application quotation/business contract:
(ii) Information other than Fifty rupees
(i) above per application (B) .......
H. The Calcutta High Court (Right to Information) Rules , 2006
7. Penalties. -
(1) Whoever being bound to supply information fails to furnish the information asked for under the Act within the time specified or fails to communicate the rejection order, shall be laible to pay a penalty up to 50 rupees per day for the de;ayed period beyond thirty days subject to a maximum of 500 Rs per application filed under rule 3 as may be determined by the Appellate Authority (2) Where the information supplied is found to be false in any material particular and which the person is bound to supply it knows and has reason to believe it to be false or does not believe it to be true, the person supplying the information shall be liable to pay a penalty of 1000 Rs, to be imposed by the Appellate Authority provided that the PIO or APIO, as the case may be, shall be given a reasonable opportunity of being heard before the penalty is imposed on him.
9. Fees : (1) The authorized person shall charge the fee at the following rate : A Application Fee -
(i) Information relating to
Tenders documents/bids/quotation/
CIC/AD/A/2013/001687SA Page 29
Business contract: 500 Rs per application
(ii) Information other than above 50 Rs per application
(B) ......
[The Fees in Rule 9 (1) A (ii) was amended to 10 Rs Via Notification No. 133 - G dated 09 Jan 2007] (1) Whoever being bound to supply information fails to furnish the information asked for under the Act within the time specified or fails to communicate the rejection order, shall be liable to pay a penalty up to fifty rupees per day for the delayed period beyond thirty days subject to a maximum of five Fee in Supreme Court of India It is to be noted that the Supreme Court of India preferred not to make any specific rules but stated to have been following "G.S.R. 336 dated 16.09.2005, Ministry of Personnel, Public Grievances and Pension, Department of Personnel & Training" [http://supremecourtofindia.nic.in/rti.htm] Thus, the question before the Commission is not the point of Rule making power or capacity of the competent authority, i.e., the Delhi High Court, in this case, but whether such rule is in conformity with the provisions of parent legislation and whether it helps in carrying out the objectives of RTI legislation especially when such a rule is not supported by any provision of Right to Information Act, 2005 itself. The question now would be: What is the effect if a rule was in excess of power of Delegated legislation as it was not provided by parent legislation even though the Competent Authority was competent enough to make rules?
Object In Maharashtra State Board of Secondary and Higher Secondary Education and Anr. v. Paritosh Bhupeshkumar Sheth and Ors. (1984) 4 SCC 27, the Hon'ble Supreme Court had declared that "while examining whether a particular piece of delegated legislation whether in the form of a rule or regulation or any other type of statutory instrument was in excess of the power of subordinate legislation conferred on the delegate, has to be determined with reference only to the specific provisions contained in the relevant statute conferring the power to make the rule, regulation etc. and the object and purpose of the Act as can be gathered from the various provisions of the enactment."
In Indian Express Newspapers (Bombay) Pvt. Ltd. and Ors. v. Union of India and Ors. (1985) 1 SCC 641, the Supreme Court held:
"subordinate legislation is outside the purview of administrative action, i.e., on the grounds of violation of rules of natural justice or that it has not taken into account relevant circumstances or that it is not reasonable. However, a distinction must be made between delegation of legislative function and investment of discretion to exercise a particular discretionary power by a statute. In the latter case, the impugned exercise of discretion may be considered on all grounds on which administrative action may be questioned such as non application of mind, taking CIC/AD/A/2013/001687SA Page 31 irrelevant matters into consideration etc. The subordinate legislation is, however, beyond the reach of administrative law. Thus, delegated legislation - otherwise known as secondary, subordinate or administrative legislation is enacted by the administrative branch of the government, usually under the powers conferred upon it by the primary legislation. Delegated legislation takes a number of forms and a number of terms rules, regulations, bylaws etc; however, instead of the said labels what is of significance is the provisions in the primary legislation which, in the first place, confer the power to enact administrative legislation. Such provisions are also called as "enabling provisions". They demarcate the extent of the administrator's legislative power, the decisionmaking power and the policy making power. However, any legislation enacted outside the terms of the enabling provision will be vulnerable to judicial review and ultra vires."
Whether prescribing Rs 50 for filing first appeal is an enabling provision? Whether that facilitates public authority to carry out provisions of RTI Act, 2005? In Re: Delhi Laws Act (supra) Supreme Court in no unmistakable terms stated that the legislature may utilize any outside agency to the extent it finds necessary for doing things which it is unable to do itself or finds inconvenient to do which would mean such things which are ancillary to the main enactment and necessary for the full and effective exercise of its power of legislation. Justice Mukherjea, in his opinion, stated:
"It cannot be said that an unlimited right of delegation is inherent in the legislative power itself. This is not warranted by the provisions of the Constitution and the legitimacy of delegation depends entirely upon its being used as an ancillary measure which the legislature considers to be necessary for the purpose of exercising its legislative powers effectively and completely. The legislature must retain in its own hands the essential legislative functions which consist in declaring the legislative policy and laying down the standard which is to be enacted into a rule of law and what can be delegated is the task of subordinate legislation which by its very nature is ancillary to the statute which delegates the power to make it. Provided the legislative policy is enunciated with sufficient clearness or a standard laid down the Courts cannot and should not interfere with the discretion that undoubtedly rests with the legislature itself in determining the extent of delegation necessary in a particular case."
As regard delegated power to "restrict and modify", it was held: "delegation ...cannot extend to the altering in essential particulars of laws which are already in force in the area in question."
"The power to restrict and modify does not import the power to make essential changes. It is confined to alterations of a minor character such as are necessary to make an Act intended for one area applicable to another and to bring it into harmony with laws already in being in the State, or to delete portions which are meant solely for another area. To alter essential character of an Act or to change it in material particulars is to legislate, and that, namely the power to legislature, all authorities are agreed, cannot be delegated by a Legislature which is not unfettered."
Excessive Delegation:
Constitution Bench of Hon'ble Supreme Court of India in Kishan Prakash Sharma and Ors v. Union of India and Ors. AIR 2001 SC 1493 observed that:
CIC/AD/A/2013/001687SA Page 33 "...The legislatures in India have been held to possess wide power of legislation subject, however, to certain limitations such as the legislature cannot delegate essential legislative functions which consist in the determination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. The legislature cannot delegate uncanalised and uncontrolled power. The legislature must set the limits of the power delegated by declaring the policy of the law and by laying down standards for guidance of those on whom the power to execute the law is conferred. Thus the delegation is valid only when the legislative policy and guidelines to implement it are adequately laid down and the delegate is only empowered to carry out the policy within the guidelines laid down by the legislature. The legislature may, after laying down the legislative policy, confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the framework of the policy. When the Constitution entrusts the duty of law making to Parliament and the legislatures of States, if impliedly prohibits them to Throw away that responsibility on the shoulders of some other authority. Hon'ble Supreme Court in Vasu Dev Singh and Ors v. Union of India (UOI) and Ors [(2006) 12 SCC753] had observed that:
"10. We, at the outset, would like to express our disagreement to the contentions raised before us by the learned Counsel appearing on behalf of Respondents that the impugned notification is in effect and substance a conditional legislation and not a delegated legislation. The distinction between conditional legislation and delegated legislation is clear and unambiguous. In a conditional legislation the delegate has to apply the law to an area or to determine the time and manner of carrying it into effect or at such time, as it decides or to understand the rule of legislation, it would be a conditional legislation. The legislature in such a case makes the law, which is complete in all respects but the same is not brought into operation immediately. The enforcement of the law would depend upon the fulfilment of a condition and what is delegated to the executive is the authority to determine by exercising its own judgment as to whether such conditions have been fulfilled and/or the time has come when such legislation should be brought in force. The taking effect of a legislation, therefore, is made dependent upon the determination of such fact or condition by the executive organ of the Government. Delegated legislation, however, involves delegation of rule making power of legislation and authorises an executive authority to bring in force such an area by reason thereof. The discretion conferred on the executive by way of delegated legislation is much wider. Such power to make rules or regulations, however, must be exercised within the four corners of the Act. Delegated legislation, thus, is a device which has been fashioned by the legislature to be exercised in the manner laid down in the legislation itself. ...." Based on the above decision the Commission is of the view that the rule making power under delegated legislation need to be within the four corners of the Act under which it is made and cannot transgress. When the apex court of law the Supreme Court is following the common rules made by DoPT under RTI Act, there is no reason or point in some of High Courts making contradictory rules. Burden of proof:
In State of T.N. & Anr. vs. P. Krishnamurthy & Ors. (supra), there is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon the party who attacks it to show that it is invalid. It is also well recognized that a subordinate legislation can be challenged under any of the following grounds: (a) Lack of legislative competence to make the subordinate CIC/AD/A/2013/001687SA Page 35 legislation, (b) Violation of fundamental rights guaranteed under the Constitution,
(c) Violation of any provision of the Constitution. (d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act, (e) Repugnancy to the laws of the land, that is, any enactment, (f) Manifest arbitrariness/unreasonableness (to an extent where the Court might well say that the legislature never intended to give authority to make such rules).
Answer the test of reasonableness :
Supreme Court in the case of Union of India and Another Vs. International Trading Company and Another ((2003) 5 SCC 437.) in para 15 while dealing with the executive power of State Government in respect of change of policy has held as under : "While the discretion to change the policy in exercise of the executive power, when not trammeled by any statute or rule is wide enough what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State, and non arbitrariness in essence and substance is the heart beat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reasons, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does really satisfy the test of reasonableness." No arbitrary power is conferred:
Supreme Court said in Vasu Dev Singh and Ors.Vs.Respondent: Union of India (UOI) and Ors, 2007(4)ALT1(SC), ...it may be true that by reason of Section 3 of the Act, no arbitrary power as such has been conferred in view of the fact that the Act applies only to certain classes of land and building but the same would not mean that the Administrator is free to take any action in any manner he likes. The action of the Administrator is indisputably subject to judicial review. It is also true that the term 'building' having regard to its definition would mean tenanted building and, thus, the building fetching a rent to a prescribed extent can form the base for determining criterion for the purpose of classification but the same would not mean that the Administrator would be entitled to lay down a criterion which would be applicable only to a large section of the tenants.
CIC/AD/A/2013/001687SA Page 37 Regulations cannot override Constitutional guarantees: In recent case about NEET test (Christian Medical College ... vs Union Of India And Ors decided on 18 July, 2013, the Supreme Court Bench consisting Altamas Kabir, Anil R. Dave, Vikramajit Sen, JJ, considered the question: (iv) Whether subordinate legislation, such as the right to frame Regulations, flowing from a power given under a statute, can have an overriding effect over the fundamental rights guaranteed under Articles 25, 26, 29(1) and 30 of the Constitution? The Supreme Court answered:
"....As a result, after the introduction of NEET, admissions to the M.B.B.S. and Postgraduate courses and the BDS and MDS courses can be made only on the basis of the Select List prepared in accordance with the results of the All India Entrance Test, which would not only eliminate a large number of applicants from admission to the medical colleges, but would also destroy the very essence of Articles 25, 26, 29(1) and 30 of the Constitution, since admission is one of the more important functions of an institution. SC held that the Regulations and the amendments thereto have been framed by the MCI and the DCI with the previous permission of the Central Government under Entry 66, List I, but that the Regulations cannot prevail over the constitutional guarantees under Articles 19(1)
(g), 25, 26, 29(1) and 30 of the Constitution.
Tribunal cannot decide validity of regulation:
In PTC India Ltd. Vs. Central Electricity Regulatory Commission thr. Secy. AIR 2010 SC 1338, the Supreme Court held:
"Appellate Tribunal empowered to adjudicate on the issue of interpretation of a Regulation framed by the Central Electricity Regulatory Commission under Section 178 of the Electricity Act, but cannot go into the validity or the vires of the Regulation." "Under the statutory provision of the Electricity Act, 2003, power of judicial review is not conferred on the Appellate Tribunal for Electricity by the parliament."
Essential functions cannot be delegated:
In State of Rajasthan and Ors. v. Respondent: Basant Nahata AIR 2005 SC 3401, Supreme Court said that essential functions could not be delegated by Legislature to the Executive. It must be judged with touch stone of Article 14 and Article 246 of the Constitution of India. It is, thus, only the ancillary and procedural powers which can be delegated and not the essential legislative point.
Overriding power of RTI Act:
In Alka Matoria v. Maharaja Ganga Singh University and Ors. MANU/RH/1026/2012, the Rajasthan High Court cited the Hon'ble Supreme Court in Aditya Bandopadhyay's case (supra) which declared that the provisions of the Act of 2005 will prevail over the provisions of bye laws/rules of examining bodies in regard to the examination; and observed that unless the examining body was able to demonstrate that answer book fell under the exempted category of information as described in clause (e) of Section 8 (1) of the Act of 2005, the examining body will be bound to CIC/AD/A/2013/001687SA Page 39 provide access to an examinee to inspect and take copies of his evaluated answerbook. The Hon'ble Supreme Court said,
36. Section 22 of the RTI Act provides that the provisions of the said Act will have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Therefore the provisions of the RTI Act will prevail over the provisions of the byelaws/rules of the examining bodies in regard to examinations. As a result, unless the examining body able to demonstrate that the answer books fall under the exempted category of information described in clause (e) of Section 8(1) of the RTI Act, the examining body will be bound to provide access to an examinee to inspect and take copies of his evaluated answer books, even if such inspection or taking copies is barred under the rules/byelaws of the examining body governing the examinations....
Rajasthan High Court said:
The only question is about the legality of charging a fee of Rs. 1,000/ per answerbook under the questioned condition No. 2 of the regulations framed by the respondentUniversity. In our view, only a glimpse of the basic provisions of the Act of 2005 is sufficient to declare the questioned condition as invalid. Section 22 of the Act of 2005 makes it clear, in no uncertain terms, that this enactment is having overriding effect over any other law for the time being in force or any instrument having effect by virtue of any law. As noticed, per Section 22, the Act of 2005 has an overriding effect over any other law; and as a necessary corollary, the rules framed thereunder for the purpose of giving effect to its provisions shall have overriding effect in the field they operate and are supposed to operate. The field in question i.e., the "fee payable" for the purpose of making application under Sec. 6 and for the purpose of providing information under Sec. 7 is the one which is governed by the rules under Sec. 27 of the Act of 2005. Any rule or regulation framed by the respondentUniversity, to the extent standing at contradiction to such rules cannot be regarded as valid.
Having regard to the purpose of the enactment and the nature and purport of the provisions therein, we are of the view that even if the respondentUniversity were to make independent regulations for the purpose of providing certified copies, so far the fields covered by the Rajasthan Rules of 2005 are concerned, the respondentUniversity cannot make any such regulation that could stand at conflict with such rules.
It may be observed that even under the proviso to subSection (5) of Section 7, the Legislature has contemplated in no uncertain terms that the fees to be prescribed for the purpose of Sections 6 & 7 of the Act should be reasonable and is not to be charged at all from the persons who are of below poverty line.The proviso reads as under: Provided that the fee prescribed under subSection (1) of Section 6 and subSections (1) and (5) of Section 7 shall be reasonable and no such fee shall be charged from the persons who are of below poverty line as may be determined by the appropriate Viewed from any angle, charging of exorbitant fees of Rs. 1,000/ for the purpose of providing copy of answerbook to a student by the respondentUniversity does not stand in conformity with the object and purpose of the Act of 2005, stands at stark conflict with the rules governing the field, and appears to be highly unreasonable.
In Paras Jain vs. Institute of Company Secretaries of India LPA 275/2014, the Delhi High Court said: "Thus, the demand by the respondents CIC/AD/A/2013/001687SA Page 41 from the petitioner to pay fee in sum of `500/ per subject/answer book copy whereof is sought is not sustainable".
In Shiv Prakash Roy v State of Bihar, CWJC No.17616 of 2012 (5) dt.12042013, Hon'ble Patna High Court stated that:
Section 19 of the Act provides for appeal. Subsection (1) thereof provides for an appeal from the decision of the Public Information Officer or against the inaction of the Public Information Officer in deciding the application before it within the specified period. Sub section (3) thereof provides for second appeal before the Central Information Commission or the State Information Commission against the decision of the first appellate authority or against the inaction of the first appellate authority in deciding the appeal within the specified period. Subsection (6) thereof provides that an appeal before the first appellate authority or the second appellate authority shall be decided within 30 days of the receipt of the appeal or within such extended period not exceeding a total of 45 days. Although Rule 6 of the Rules of 2006 makes a similar provision in respect of appeal against the Public Information Officer, a deviation is made in respect of the first appellate authority. Any person aggrieved by the order of the first appellate authority has right to appeal before the State Information Commission. However, no such provision is made in case the first appellate authority fails to decide the appeal preferred before it. Evidently, Rule 6(2) of the Rules of 2006 is not brought in consonance with the Act. To that extent Subrule (2) of the Rules of 2006 is ultra vires Section 19 of the Act....For the aforesaid reason, this petition is allowed.
Decision:
9. The Commission, based on above referred points, observes that Delhi District Court (RTI) rules contain a provision which is not provided in the parent RTI Act.
Right to information can be culled out from fundamental right to life and liberty under Article 21 and from freedom of expression under Article 19(1)(a) which was more specifically guaranteed by Right to Information Act. Sections 8 and 9 of Right to Information Act made specific exemptions and the Right to Information under Section 3 is subject to SS 8 and 9. The SS 8 & 9 constitutes reasonable restrictions imposed by law as per Article 19(2) of the Constitution. The scheme and mechanism of providing access to information includes the fee structure and stages where fee can be or cannot be imposed. Any further restriction or change introduced through rules, will not only transgress the Right to Information Act, but also violate Article 19(1)(a) and Article 19(2) of the Constitution. The apex body of Judiciary, the Supreme Court of India, framed rules that are in conformity with the law and follows the common rules made by DoPT. The High Court being a Constitutional Court which judicially enforce the fundamental rights and adjudicate disputes about statutorily guaranteed rights such as RTI, is legitimately expected to frame rules in accordance with the provisions and spirit of Right to Information Act. The other Public Authorities generally look to the Hon'ble High Court as model and draw inspiration from. It is in general public interest that the rules made by Delhi High Court or for that matter any High Court in India, should be in conformity with the letter and spirit of RTI Act, and rules followed by the Supreme Court.
CIC/AD/A/2013/001687SA Page 43 Section 25(5) of Right to Information Act, 2005 provides that:
If it appears to the Central Information Commission or State Information Commission, as the case may be, that the practice of a public authority in relation to the exercise of its functions under this Act does not conform with the provisions or spirit of this Act, it may give to the authority a recommendation specifying the steps which ought in its opinion to be taken for promotion of such conformity.
Imposing a fee of Rs 50 as mandatory requirement at the first appeal level is not in consonance with the fee structure prescribed by Act and Rules by Central Government. Except Rs 10 fee at the stage of filing request for information with the PIO, the law does not prescribe any fee at any stage including at the second appeal level at the Information Commission, which is specially created for adjudicating on the issues of access to information. Thus requirement of payment of fee at first appeal will dissuade the applicants from filing first appeals and directly approach the Information Commission in second appeal as no fee is prescribed at that stage. This will deprive the first appellate authority, who is generally a senior officer of the same public authority, a chance to look into the information request and unnecessarily burden the Information Commission with appeals and makes the Second Appellate Authority as First Appellate Authority in practice. The object of the Parliament in designating a senior officer as First Appellate Authority of the Public Authority is to facilitate the access to information or address the grievance which mostly taking the shape of information request. An effective review of denial of access to information and proactive redressal of grievance could happen within the public authority itself, which is a good governance practice and also ethics of administration. It also does not necessitate the interference of external authority like Information Commission in resolving an internal information issue of the public authority. Provision of first appeal within the public authority would mean that the Parliament has duly regarded the administrative autonomy of the department or public authority to set right the home. An imposition of fee of Rs 50 at the level of First Appeal would thus cause an impediment which was not envisaged by the law. Mandatory rule requiring fee at the middle level, when it is not there at second level and it is only Rs. 10 at first level, does not fitin in the scheme and structure created by the RTI Act, 2005. With this rule 11 of Delhi District Courts Rules in contradiction with RTI Act and rules made there under by the Central Government, there will be two classes of people, one paying fee at first appeal for seeking information from Courts in Delhi, two people filing second appeal in all other departments/public authorities without paying Rs 50 as fee. This is unreasonable classification and thus violates Article 14 of the Constitution.
If for any other compelling reasons the respondents find it necessary to impose fee for first appeal, their Authorities are free to recommend the same in their annual reports and appeal to the Parliament to amend the law to uniformly impose fee at First Appellate level.
Hence Commission finds that the rule and practice of the respondent public authority in this case, in relation to the exercise of its functions under this Act as far as imposition of fee of Rs 50 for first appeal is concerned, does not conform with the provisions and spirit of this Act.
CIC/AD/A/2013/001687SA Page 45 Invoking the duty to recommend under Section 25(5) of RTI Act, the Commission, therefore, recommends the respondent Public Authority, the Hon'ble Delhi High Court, to amend the rules to bring it in conformity with RTI Act, for effective provision of access to information and to bring uniformity with the rules made by DoPT which are also followed by the Supreme Court.
The copy of this order shall be sent to concerned High Courts, to bring the rules in conformity with RTI Act and DoPT Rules.
Sd/ (M. Sridhar Acharyulu) Information Commissioner Authenticated true copy (Babu Lal) Dy. Registrar