CIC – Provide Info even if alternate metods are avail

CENTRAL INFORMATION COMMISSION
Club Building, Old JNU Campus,
Opposite Ber Sarai, New Delhi 110 067.
Tel: +91 11 26161796

Decision No. CIC/SG/C/2009/ 000702/4128
Complaint No. CIC/SG/C/2009/ 000702

Relevant facts emerging from the Complainant:

Complainant : Mr. Dharmender Kumar Garg,
Chamber No. 412, Delhi High Court,
New Delhi – 110003

Respondent : Mr. Raj Kumar Sah
PIO
Registrar of Companies & CAPIO
NCT Delhi and Haryana,
4th Floor, IFCI Tower,
Nehru Place, New Delhi – 110003

RTI application filed on : 28/05/2009
PIO replied : Not mentioned
First Appeal filed on : Not mentioned
First Appellate Authority order : Not mentioned
Complaint filed on : 02/06/2009

Information Sought:
The Complainant had sought information from PIO regarding M.s Bloom Financial Services Limited through following queries:
1- Who are the directors of this company? Please provide their name,address date of appointment and copies of consent filed at ROC.
2- After incorporation of above company, how many times directors were changed? Please provide the details of documents files and copies of Form 32 filed at ROC.
3- Please provide the copied of Annual Returns filed at ROC since incorporation to 1998.
4- On what ground prosecution has been filed please provide the details of prosecution and persons included for prosecution. Please provide the copies of Order Sheets and related documents.
5- On what ground the name of Dharmender Kumar Garg has been included for prosecution?
6- Please provide the copies of Form no.5 and other documents filed for increase of capital?
7- How much fee was paid for increase of Capital of above company?
Please provide the details of payment of fee at ROC.
8- Please provide the copies of Statutory Report and SLP filed at ROC.

PIO’s Reply:
Not mentioned.

Order of the First Appellate Authority:
Not mentioned.

Relevant facts emerging during hearing 1 July 2009:
The following were present:
Complainant: Mr. Dharmender Kumar Garg
Respondent: Mr. Raj Kumar Sah, PIO and Mr. Atma Sah
The respondent states that the information is available under the
Section 610 of the Companies Act on payment of the prescribed fee. The
respondent is also relying on the department circular of Ministry of
Company Affairs dated 24/01/2006, a decision of the Commission CIC/MA/
A/2006/ 00016 dated 29 March 2006 and CIC/AT/A/2007/ 00112 dated 12
April 2007 (particularly paras 8, 12 and 13).

The Complainant states, “their web site was inspected on 06 May 2009
on payment of Rs.50/- but no information was available. Thereafter
after getting the reply under RTI, I went to Manesar office (Gurgaon)
and file was inspected. It was mentioned in the file that past records
had been weeded out. Only three four documents were available, I took
the copies on payment of more than Rs.1200/- even then the information
could not be collected from the record. The files are totally
incomplete.”

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The Complainant’ s contention therefore is that prosecution has been
launched against him inspite of the fact that the records are not up-
to-date. The respondent’s main contention is that since they offer
inspection under Section 610 of the Companies Act on payment of the
prescribed fee, they need not give information under the Right to
Information Act.
The decision was reserved during the hearing.

Decision announced on 14 July 2009:
The Commission had heard both the parties. The Respondent had
submitted the following arguments before the Commission to deny the
information:
1. Once the information is available in the public domain accessible
to the citizens, the information is automatically excluded from
purview of the RTI Act as held by Hon’ble Information Commissioner
Shri A.N. Tiwari in the case of CIC/AT/A/2007/ 00112
2. Section 610 of the Companies Act, 1956 provides that any person may
inspect any document kept by ROC and obtain copy of any document from
the ROC concerned on payment of prescribed fee. Therefore, the
Complainant need not seek information under RTI Act. This was held by
Hon’ble Information Commissioner Shri M.M. Ansari in the case of CIC/
MA/A/2006/ 0016.

For the first argument the Respondent relied on order number CIC/AT/A/
2007/ 00112 where it was held by the Hon’ble Commission while
interpreting Section 2(j) of the RTI Act that “…unless an information
is exclusively held and controlled by a public authority that
information cannot be said to be an information accessible under the
RTI Act. Inferentially it would mean that once a certain information
is placed in the public domain accessible to the citizens either
freely or on payment of a pre-determined price that information cannot
be said to be `held’ or `under the control of the public authority’
and thus would cease to be an information accessible under the RTI
Act…” I would respectfully beg to differ from this decision. Even if
the information is in public domain, an applicant can still ask a
public authority to grant him the information if it is held by it.
Even if some information is available at various places, it is the
Citizen’s choice from where he wishes to access it. The only
exemptions from disclosure of information available in the RTI Act are
provided under Section 8 and 9. The Commission would like to clarify
that Section 2 of the RTI Act is the definitional provision and
therefore Section 2(j) is not an exemption clause under RTI Act. It
merely defines the `right to information’ . So the exemption from
disclosing the information cannot be sought under Section 2(j). It is
also the basic tenet of the law of statutory interpretation that no
section should be interpreted in such a manner which would violate the
basic objective of the statute. The basic objective of the Right to
Information Act, 2005 is to provide the information sought by the
Applicant from a public authority and therefore the sections of the
same act should be interpreted to further the objective of this Act.
Also the information sought by the Complainant here has not been
provided on the internet. The information asked for is very basic
information and records related to this particular information are
missing. This information is very important for the Complainant as he
is facing a threat of arrest and needs the information to prove his
innocence. Not granting such information clearly leads to violation of
the fundamental right of the Complainant as provided under Article 21
of the Constitution.

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With regards to the second argument of the Respondent about
information to be sought only under Section 610 of the Companies Act,
the Respondent has relied on order number CIC/MA/A/2006/ 0016 of the
Commission where the Hon’ble Commissioner Shri M.M. Ansari upholding
FAA’s order stated that “There is already a provision for seeking
information under Section 610 of The Companies Act, 1956. The
Complainant may accordingly approach the ROC as advised by the
Appellate Authority to obtain the relevant information. ” If the
Complainant has more than one way of seeking remedy he has the freedom
to opt for the way which is more convenient for him. No claim has been
made by the PIO of any exemption under the RTI Act to deny the
information. If a Public Authority has a procedure of disclosing
certain information which can also be accessed by a Citizen using the
Right to Information Act, it is the Citizen’s prerogative to decide
which route he wishes to take. The existence of another method of
accessing information cannot be a justification to deny the Citizen
his freedom to exercise his fundamental right codified under the Right
to Information Act. If the Parliament wanted to restrict this right,
it would have been stated expressly in the Act. Nobody else has the
right to constrain or limit the rights of the Sovereign Citizen.

There is no provision in the Right to Information Act which restrains
the Citizen’s right to use it if another route to access information
has been offered. It is a Citizen’s right to use the most convenient
and efficacious means available to him.

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It appears to the Commission that information is being denied to the
Complainant without any valid grounds and this delay is causing mental
agony to the Complainant who is living under the constant fear of
arrest.

The Complaint is allowed.
The complete information will be given to the Complainant before 25
July 2009.
If records are not available for any of the queries, this will be
stated categorically.

The issue before the Commission is of not supplying the complete,
required information by the PIO within 30 days as required by the
law.
From the facts before the Commission it is apparent that the PIO is
guilty of not furnishing information within the time specified under
sub-section (1) of Section 7 by not replying within 30 days, as per
the requirement of the RTI Act. It appears that the PIO’s actions
attract the penal provisions of Section 20 (1).
A showcause notice is being issued to him, and he is directed give his
reasons to the Commission to show cause why penalty should not be
levied on him.
He will give his written submissions showing cause why penalty should
not be imposed on him as mandated under Section 20 (1) before 5 August
2009. He will also submit proof of having given the information to the
Complainant.

This decision is announced in open chamber.
Notice of this decision be given free of cost to the parties.

Shailesh Gandhi
Information Commissioner
14 July 2009

(In any case correspondence on this decision, mention the complete decision number.)
(R.K)

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