Can information be sought under RTI for which a procedure has been prescribed under any other Act?
Background of the Case
Applicant sought certain information from the Registrar of Companies, NCT of Delhi & Haryana (ROC) seeking certain information in relation to company No. 056045 M/s Bloom Financial Services Limited.
Reply of the PIO
- The PIO informed that in view of the provisions of Section 610 of the Companies Act, 1956 read with Companies (Central Government) General Rules and Forms, 1956, the documents filed by companies with the ROCs are to be treated as information in public domain.
- For accessing information relating to documents filed which are in the public domain, the in-built mechanism under the provisions of the Companies Act, 1956 for disclosure of information would have to be followed. PIO asked the applicant to obtain the desired information by inspecting the documents filed by the company in the office before filing of documents online and or on the Ministry’s website www.mca.gov.in. For certified copies, the PIO adviced the applicant to the fees prescribed under the Companies Act.
- The PIO informed that the information already available in the public domain would not be treated as ‘information held by or under the control of public authority’ pursuant to Section 2(j) “right to information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes 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; of the Right to Information Act, 2005. Therefore, the provisions of RTI Act, 2005 would not be applicable for providing such information.
View of CIC
The CIC Bench headed by Shailesh Gandhi referred to the previous orders of the bench of Shri A. N. Tiwari and Prof. M.M. Ansari of the CIC which had decided in favour of the ROC.
- In Sh. K. Lall Vs. Sh. M.K. Bagri, Assistant Registrar of Companies in F. No. CIC/AT/A/2007/00112,
- Shri Shriram (Dada) Tichkule Vs. Shri P.K. Galchor, Assistant Registrar of Companies in order dated 29.08.2007,
- Arun Verma Vs. Department of Company Affairs in Appeal No. 21/IC(A)/2006 order dated 29.03.2006, and
- Sh. Sonal Amit Shah Vs. Registrar of Companies, Decision No. 2146/IC(A)/2008 dated 31.03.2008.
The bench of Shri Shailesh Gandhi referred to these decisions and stated that “I would respectfully beg to differ from this decision”. The bench directed to disclose the information and issued show cause notice to the PIO for imposition of penalty.
View of the Delhi High Court
The High Court took the view that:
1. The files kept by the ROC as well as the record of any fact required or authorized to be recorded by the Registrar or registered in pursuance of the Companies Act qualifies as “information” as defined 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; of the RTI Act.
2. If there is information which is not accessible under the RTI Act, there is no ‘right to information’ in respect thereof. The expression ‘held by’ or ‘under the control of any public authority’, in relation to “information”, means that information which is held by the public authority under its control to the exclusion of others. It does not include:
a) information which the public authority has already shared generally with the citizens, and
b) information, in respect of which there is a statutory mechanism evolved, (independent of the RTI Act) which obliges the public authority to share the same with the citizenry by following the prescribed procedure, and upon fulfillment of the prescribed conditions.
There is no exclusivity in such holding or control and the control vests in the seeker of the information who has only to operate the statutorily prescribed mechanism to access the information.
3. The mere prescription of a higher fee in the other statutory mechanism than that prescribed under the RTI Act does not make any difference whatsoever. The Companies (Central Government) General Rules & Forms, 1956 being statutory in nature and specific in their application, do not get overridden by the rules framed under the RTI Act with regard to prescription of fee for supply of information, which is general in nature, and apply to all kinds of applications made under the RTI Act to seek information.
4. The right to information is required to be balanced with the need to optimize use of limited fiscal resources. If another statutory provision, created under any other law, vests the right to seek information and provides the mechanism for invoking the said right that mechanism should not be destroyed merely because another general law created to empower the citizens to access information has subsequently been framed.
5. Section 610 of the Companies Act, and the Rules framed thereunder provide the facility to any person for obtaining information from the ROC. Therefore, there is nothing inconsistent between the scheme provided under Section 610 of the Companies Act and the provisions of the RTI Act. Merely because a different charge is collected for providing information under Section 610 of the Companies Act than that prescribed as the fee for providing information under the RTI Act does not lead to an inconsistency in the provisions of these two enactments.
6. The provisions of the RTI Act would not override the provision contained in Section 610 of the Companies Act as the RTI Act is a general law/enactment which deals with the right of a citizen to access information available with a public authority, while Section 610 of the Companies Act is a piece of special legislation, which deals specifically with the right of any person to inspect and obtain records i.e. information from the ROC.
7. The Central Information Commission functions as a quasi-judicial authority. It is a well-settled canon of judicial discipline that a bench dealing with a matter respects an earlier decision rendered by a coordinate bench (i.e., a bench of same strength), and is bound by the decision of a larger bench. If this discipline is breached, the same would lead to complete chaos and confusion in the minds of the litigating public and others. Breach of such discipline would result in discrimination and would shake the confidence of the consumers of justice.
8. If the emergence of contradictory views is innocent i.e. due to ignorance of an earlier view, it is pardonable, but when such a situation is created consciously, with open eyes, and after having been put to notice, the judge/authority responsible for the later view should take the blame for creating confusion and for breaching judicial discipline.
9. The Central Information Commissioner Sh. Shailesh Gandhi has demonstrated complete lack of judicial discipline while rendering the impugned decisions. If the Central Information Commissioner Sh. Shailesh Gandhi had a different view in the matter – which he was entitled to hold, judicial discipline demanded that he should have recorded his disagreement with the view of other Central Information Commissioner, and, for reasons to be recorded by him, required the constitution of a larger bench to re-examine the issue. He could not have ridden rough shot over the earlier decisions of Sh. A.N. Tiwari and Prof. M.M. Ansari, particularly when he was sitting singly to consider the same issue of law.
10. If a PIO is guided by a departmental circular, the PIO has acted bonafide and without any malice. Merely because the CIC eventually finds that the view taken by the PIO was not correct, it cannot automatically lead to issuance of a show-cause notice under Section 20 of the RTI Act for the imposition of penalty. Personal penalty on the PIO can be imposed only in cases where the PIO, without reasonable cause:
a) A refuses to receive the application, or
b) provide the information, or
c) knowingly gives incorrect, incomplete or misleading information, or
d) destroys the information.
Delhi HC in Registrar of Companies & Ors v. Dharmendra Kumar Garg & Anr in W.P.(C) 11271/2009
RTI Citation : RTIFI/2012/HC/371
Click here to view original RTI order of Court / Information Commission