CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26161796
Decision No. CIC/SM/A/2010/001650/SG/14711
Appeal No. CIC/SM/A/2010/001650/SG
Relevant facts emerging from the Appeal:
Appellant : Mr. Madhav Balwant Karmarkar,
B - 6, Panchratna Housing Society,
13, Sheela Vihar Colony,
Pune - 411038
Respondent : Mr. K. R. Joshi,
PIO & Section Officer,
Debts Recovery Tribunal,
Ministry of Financial Services,
PMT Commercial Building - 1,
Shankarsheth Road, Swargate,
Pune - 411042
RTI application filed on : 14/08/2010
PIO replied on : 06/09/2010
First Appeal filed on : 16/09/2010
Order of FAA : Not enclosed
Second Appeal received on : 18/10/2010
Information sought:
"1. The date on which Shri SG Kulkarni Reported for duty as District Judge 1, Amalner, District
Jalgoan.
2. The period of medical leave of Shri SG Kulkarni particularly when he was posted as District
Judge- 1, Amalner, District Jalgoan.
3. The medical certificate produced by Shri SG Kulkarni for his leave when he was District
Judge- 1 Amalner, District Jalgaon.
4. The date on which Shri SG Kulkarni reported back on the expiry of his medical leave to as
District Judge- 1, Amalner, District Jalgaon.
5. The copy of the medical fitness certificate when he reported back to Amalner as District
Judge.
6. The Application made by Shri SG Kulkarni for his extention of term for a period from
04/12/2006 to 03/06/2007 as a presiding Officer DRT Pune.
7. What public interest was served for over staying as a Presiding Officer DRT Pune?
8. Whether the Ministry of Finance declared that nobody else could be appointed in place of
Shri SG Kulkarni from 04/12/2006 to 03/06/2007 and that Shri SG Kulkarni would not have
been taken to his parent department i.e. Maharashtra Judiciary Department.
9. Whether the Judiciary Department of Govt. of Maharashtra has expressed in writing to the
Ministry of Finance or DRAT Mumbai or DRT Pune that the judiciary Department of Govt. of
Maharashtra though Register High Court was not prepared to send Sri SG Kulkarni on
deputation to any of the Debts Recovery Tribunal during 04/12/2006 to 03/06/2007.
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10. Copy of medical certificate for fitness of Shri SG Kulkarni when he reported for duty on
01/11/2007 since when he applied for voluntary retirement on medical ground and that when he
applied for voluntary retirement he was on medical leave.
11. The representation made by Shri SG Kulkarni when he was posted as District Judge 1 &
additional session Judge Khamgoan, Buldana vide order dated 12/05/2007
12. For all the above information this information seeker request that he be granted inspection
of the above records, file and other papers."
Reply of Public Information Officer (PIO):
"The information sought by the Appellant in connection with Hon'ble Presiding Officer Shri SG
Kulkarni pertains to the period when the officer was not holding the post in this office and does
not pertains this office therefore this office is unable to forward any information in this regard."
Grounds for First Appeal:
Dissatisfied with the reply of the PIO.
Order of the First Appellate Authority (FAA):
Not Enclosed.
However on perusal of the documents received by the Commission, it appears that the First
Appeal was returned by the FAA vide letter dated 27/09/2010 on account of procedural
inadequacies.
Ground for Second Appeal:
The Appellant dissatisfied with the illegal and wrongful rejection of his appeal by the FAA.
Relevant Facts
emerging during Hearing held September 16, 2011:
The following were present:
Appellant: Mr. Madhav Balwant Karmakar via video conference from NIC Studio – Pune;
Respondent: : Mr. K. R. Joshi, PIO & Section Officer via video conference from NIC Studio –
Pune.
The PIO has contended that the information may be denied on the basis that it must be sought
under the DRT Rules. The PIO relied on the decision of the Commission in Ajay v. CPIO, Debts
Recovery Tribunal CIC/SM/A/2009/000990+1506 dated 05/05/2010 in support of his contention.
On the other hand, the Appellant has contended that as per the DRT Rules, only litigants can
obtain information. Since he was not a litigant in the relevant matter, he would not be able to
obtain the information. The Appellant relied on the Commission’s decision in R. S. Misra v.
CPIO, Supreme Court of India CIC/SM/A/2011/000237/SG/12351 dated 11/05/2011 in support
of his argument. The PIO stated that even non- litigants can obtain information under the DRT
Rules.
The order was reserved at the hearing held on 16/09/2011.
Decision announced on 20 September 2011:
Based on the contentions of the parties, the main issue which arises for determination before this
Bench is where there are methods of obtaining information from a public authority in existence
before the RTI Act, can a citizen insist on obtaining the information under the RTI Act.
The right to information is a fundamental right of the citizens of India. This has been clearly
recognised by the Supreme Court of India in several decisions and subsequently, codified by the
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Parliament in 2005. The RTI Act was enacted with the spirit of ensuring transparency and access
to information giving citizens the right to information. It lays down the substantive right to
information of the citizens and the practical mechanism to enforce the said right. Section 3 of the
RTI Act lays down that subject to the provisions of the RTI Act, all citizens shall have the right
to information. The RTI Act is a crisp legislation comprising of 31 Sections, which confer upon
citizens, the right to information accessible under the RTI Act, which is held by or under the
control of a public authority. The scheme of the RTI Act stipulates inter alia that information
sought shall be provided within the prescribed period, formulation of a proper appellate
mechanism and invoking of stringent penalty where the PIO fails to provide the information
within the mandated period without reasonable cause. The RTI Act is premised on disclosure
being the norm, and refusal, the exception. It is legally established that information requested for
under the RTI Act may be exempted from disclosure in accordance with Sections 8 and 9 only
and no other exemptions can be claimed while rejecting a demand for disclosure.
Further, Section 22 of the RTI Act expressly provides that the provisions of the RTI Act shall
have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act,
1923, and any other law for the time being in force or in any instrument having effect by virtue
of any law other than the RTI Act. In other words, where there is any inconsistency in a law as
regards furnishing of information, such law shall be superseded by the RTI Act. Insertion of a
non- obstante clause in Section 22 of the RTI Act was a conscious choice of the Parliament to
safeguard the citizens’ fundamental right to information from convoluted interpretations of other
laws adopted by public authorities to deny information. The presence of Section 22 of the RTI
Act simplifies the process of implementing the right to information both for citizens as well the
PIO; citizens may seek to enforce their fundamental right to information by simply invoking the
provisions of the RTI Act.
Given the above, two scenarios may be envisaged:
1. An earlier law/ rule whose provisions pertain to furnishing of information and is
consistent with the RTI Act: Since there is no inconsistency between the law/ rule and the
provisions of the RTI Act, the citizen is at liberty to choose whether she will seek
information in accordance with the said law/ rule or under the RTI Act. If the PIO has
received a request for information under the RTI Act, the information shall be provided to the
citizen as per the provisions of the RTI Act and any denial of the same must be in accordance
with Sections 8 and 9 of the RTI Act only; and
2. An earlier law/ rule whose provisions pertain to furnishing of information but is
inconsistent with the RTI Act: Where there is inconsistency between the law/ rule and the
RTI Act in terms of access to information, then Section 22 of the RTI Act shall override the
said law/ rule and the PIO would be required to furnish the information as per the RTI Act
only.
The DRT Rules as well as the RTI Act coexist and therefore, it is for the citizen to determine
which route she would prefer for obtaining the information. The right to information available to
the citizens under the RTI Act cannot be denied where such citizen chooses to exercise such
right, as has been done by the PIO in the instant case. The Commission would like to highlight
that just as the DRT Rules put in place by the relevant authority are not abrogated, the RTI Act
passed by the Parliament also cannot be suspended. If the PIO has received a request for
information under the RTI Act, the information shall be provided to the applicant as per the
provisions of the RTI Act and any denial of the same must be in accordance with Sections 8 and
9 of the RTI Act only. The Commission has noted that the PIO has rejected the request for
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information under the RTI Act without taking recourse to Sections 8 and 9 of the RTI Act, which
is clearly against the statutory mandate. Moreover, it is pertinent to mention that the RTI Act, at
no place, stipulates that in the event there is consistency between an earlier law/rule and the RTI
Act, the citizen shall have to seek information under the former. In the absence of such a
provision, there is no requirement to read in such an interpretation to the RTI Act.
At this juncture, the Commission would like to mention certain decisions of the Supreme Court
of India in CIT v. A. Raman & Co. [1968] 67 ITR 11 (SC), which was upheld in CIT v. Calcutta
Discount Co. Ltd. [1973] 91 ITR 8 (SC) and subsequently in UOI v. Azadi Bachao Andolan
[2003] 263 ITR 706 (SC), where Shah J., observed as follows:
“… Avoiding of tax liability by so arranging commercial affairs that charge of tax is
distributed is not prohibited. A tax payer may resort to a device to divert the income
before it accrues or arises to him. Effectiveness of the device depends not upon
considerations of morality, but on the operation of the Income Tax Act. Legislative
injunction in taxing statutes may not, except on peril of penalty, be violated, but it may
be lawfully circumvented…” (Emphasis Added)Therefore, even when the State may lose revenue, the Supreme Court of India has ruled that an
individual tax payer has the liberty to arrange her commercial affairs in order to reduce her tax
liability, so long as such arrangement is within the operation of tax legislation(s). Drawing an
analogy, it certainly stands to reason that a citizen should be able to decide on the method most
convenient and expedient by which she would obtain information. In view of the reasons
enumerated above, the decision cited by the PIO in Ajay v. CPIO, Debts Recovery Tribunal
CIC/SM/A/2009/000990+1506 dated 05/05/2010 is per incuriam inasmuch as it was rendered in
ignorance of a rule having the force of law laid down by the Supreme Court of India and by
reading in an interpretation to the RTI Act which was hitherto not stipulated by the Parliament.
Given the same, the said decision is not binding on this Bench. It is also important to mention
that no legal basis has been given by the Information Commissioner for arriving at his
conclusion.
The Appeal is allowed. The PIO is directed to provide the complete information as available on
records to the Appellant before 20 October 2011, subject to the provisions of the RTI Act. If no
such information is available on record, the same shall be stated in writing to the Appellant.
Notice of this decision be given free of cost to the parties.
Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act.
Shailesh Gandhi
Information Commissioner
20 September 2011
(In any correspondence on this decision, mention the complete decision number.)(DIS)
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