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Sunil Ahya

The RTI application is to be addressed as follows:

To,

Quote

 

The Public Information Officer (PIO),

Assistant Engineer,

Building Proposal Department,

XX Ward (replace XX with the ward applicable to your locality),

Address of the XX Ward.

 

You can either visit the ward and submit it to its Dispatch Section and take an acknowledgment on the photocopy of your RTI application, or

You can mail it by Speed Post, track its delivery on Indiapost website on internet and when it shows delivered take a print out of the track report and preserve it as a proof of delivery of your RTI application.

In Maharashtra, the best way to pay RTI application fees is to paste a Rs. 10/- court fee stamp on the RTI application itself. You will get court fee stamp from any of the Courts, or vendors (photocopy / xerox shops) near a Municipality or other such Govt. offices. As the court fee stamps are valid forever, you may consider buying extra (say worth Rs. 100/- or more), as you will require them for filing RTI First Appeal and Second Appeals.

Please refer to the following links:

In the RTI application, under the heading "Description of Information Required" you may seek information as follows:

Quote

 

1. With reference to the said Society, please provide me with the certified photocopies of the documents / plans of the following:

  1. IOD,
  2. Commencement Certificate.
  3. Commencement Plans & Layouts.
  4. Completion Certificate.
  5. Completion Plans & Layouts.
  6. Occupation Certificate.
  7. All other approved plans and layouts.

2. In accordance with section 2(j)(i) of the RTI Act, 2005, please first provide me with an inspection of all the above mentioned documents pertaining to the said society available with the MCGM.

3. Please note that, during the process of this inspection, I shall select the required information, kindly do provide me with a certified photocopy of such selected information on payment of prescribed fees.

 

 

Sunil Ahya

1. The PIO has not provide information against point no. xx, xx etc. of the RTI application.

2. The PIO has declined information against point no. xx of the RTI application by merely quoting the exemption to information under section 8(1)(h) / 8(1)(j) of the RTI Act, 2005 without giving meaningful justification for arriving at that reason for denial.

This is against letter and spirit of RTI Act.

Please find the following persuasive precedents wherein the concerned authorities have ruled that merely quoting the bare clause of the Act does not imply that the reasons have been given:

Decisions of CIC [Central Information Commission]:

A] CIC/OK/A/2006/00163 dated 7 July, 2006:

Quote

“Through this Order the Commission now wants to send the message loud and clear that quoting provisions of Section 8 of the RTI Act ad libitum to deny the information requested for, by CPIOs/Appellate Authorities without giving any justification or grounds as to how these provisions are applicable is simply unacceptable and clearly amounts to malafide denial of legitimate information attracting penalties under section 20(1) of the Act.”

 

B] CIC/SG/A/2011/003607/17371 dated 10-03-2012:

Quote

“The PIO has to give the reasons for rejection of the request for information as required under Section 7(8)(i). Merely quoting the bare clause of the Act does not imply that the reasons have been given. The PIO should have intimated as to how he had come to the conclusion that rule 8(1)(j) was applicable in this case."

 

C] CIC/BS/A/2013/000681/4968 dated 24-04- 2014:

Quote

“Access to information, under Section 3 of the Act, is the rule and exemptions the exception. The information can be denied only if it is exempt as per the provisions of Section 8 or Section 9 of the RTI Act. Further, while denying information the authority withholding the information must show satisfactory reason and such reason should be germane and based on some material. Sans this consideration the information cannot be denied………”

 

COURT JUDGMENTS:

D] Hon’ble HIGH COURT OF DELHI in W. P. © 12428/2009 & CM APPL 12874/2009 DEPUTY COMMISSIONER OF POLICE versus D.K.SHARMA –Judgement dated 15-12-2010:

Quote

“6. This Court is inclined to concur with the view expressed by the CIC that in W.P. (Civil) 12428/2009 order to deny the information under the RTI Act the authority concerned would have to show a justification with reference to one of the specific clauses under Section 8 (1) of the RTI Act. In the instant case ………….”

 

E] Hon’ble High Court of Kerala in Ibrahim Kunju v. State of Kerala AIR 1970 Ker 65:

Quote

“If no reasons are given in the appellate orders, then it is injustice to the natural justice because quasi judicial obligations are giving reasons for order, since justice is not expected to wear the inscrutable face of a sphinx”

 

F] Judgment of HON’BLE HIGH COURT OF DELHI in WP© No. 3114/2007 decided on 03.12.2007 :

Quote

 

“Para 12………As is reflected in its preambular paragraphs, the enactment seeks to promote transparency, arrest corruption and to hold the Government and its instrumentalities accountable to the governed. This spirit of the Act must be borne in mind while construing the provisions contained therein.
 
Para 13. Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right itself. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8(1)(h) and other such provisions would become the haven for dodging demands for information”

 

 

3. Also, please find the following Case Laws / Persuasive Precedents wherein the concerned authorities have ruled disclosure of information pertaining to police investigation, Police Diary / Daily Diary / Case Diary:

A] IN THE HIGH COURT OF DELHI AT NEW DELHI in W.P.© 12428/2009, DEPUTY COMMISSIONER OF POLICE ….. Petitioner

versus D.K.SHARMA ….. Respondent In person.

Quote

 

The Delhi High Court has asked Delhi Police to provide to an accused the daily diary (DD) entry mentioning his arrest, information collected during the investigation and copies of the case diary. Justice S. Muralidhar passed the direction dismissing an appeal by the Deputy Commissioner of Police (Anti-Corruption Branch) against an order by the Central Information Commission (CIC) on a petition by the accused, D.K. Sharma, when the officer refused to provide the documents asked for by him. The police had denied the information to the accused on the ground that trial of the case had been completed and that he was not entitled to a case diary in terms of Section 172 (2) of the Criminal Procedure Code and that the provisions of the RTI Act had to be read subject to Section 172. Countering the police’s argument, the accused in person argued that his right to ask for the information under the RTI Act could not be denied citing the quoted Section of the Code and that no prejudice would be caused to the investigating agency as the trial had been completed. Dismissing the appeal, Justice Muralidhar said: `This Court is inclined to concur with the view expressed by CIC that in order to deny information under the RTI Act, the authority concerned would have to show a justification with reference to one of the specific clauses under Section 8 (1) of the Act.’’ `In the instant case, the police have been unable to discharge that burden. The mere fact that a criminal case is pending may not by itself be sufficient unless there is a specific power to deny disclosure of the information concerning such case’’, Justice Muralidhar said, `No prejudice can be caused to the police if the D.D. entry concerning his arrest, the information gathered during the course of the investigation, and the copies of the case diary are furnished to the accused. The right of an applicant to seek such information……cannot be said to be barred by any provision of the Cr.P.C’’, Justice Muralidhar further said. `
It is required to be noticed that Section 22 of the RTI Act states that the RTI Act would prevail notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923
and any other law for the time being in force’’, Justice Muralidhar said, elucidating the provision of the RTI Act.

 

 

B] Smt. Jagvinder Kaur v/s. PIO,Senior Superintendent of Police, Bathinda:

Following is the relevant excerpt from the Decision of the Hon’ble Punjab State Information Commission:

Quote

 

“What holds good for matters under investigation, would in fact apply with greater vigour to cases where investigation has been completed. In the present case, investigation has been completed and ‘challan’ has been presented. Trial is going on in the court. The respondent has not shown how and in what way discloser of the case diary at this stage, will impede the prosecution of the accused. No reason or justification has come forward from the respondent.
 
In conclusion, therefore, it must be held that the complainant has a right to access the information sought by him and the respondent is under a statutory obligation to supply attested copies of the case dairy to him.”

 

 

C] Sri Virag R. Dhulia Versus

(i) PIO & lnspector of Police, Mahadevapur Police Station, Bangalore

(ii) FAA & Deputy police Commissioner, DCP East Zone, Ulsoor Police Station, Bangalore

Following is the relevant excerpt from the Decision of the Hon’ble Karnataka State Information Commission:

Quote

 

“5. Respondent states that it is a confidential document which will be produced before the Court if called for and if Commission intends he is ready to provide the copy of Case dairy to the Appellant.
6. Since Section 22 of RTI act overrides any other act for the time being in force; nothing prevents the Respondent to provide the copy of the Case Dairy to the Appellant.
7. Commission directs the Respondent to provide copy of the Case Dairy to the Appellant.”

 

 

4. Thus, non-disclosure of such information would be against the letter and spirit of the objectives to be achieved vide the enactment of the preamble of the Right to Information Act, 2005, which lays down as follows (emphasis added):

 
Quote

 

AND WHEREAS
democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed;
 
AND WHEREAS revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information;

 

 

Furthermore, with due respect to the police inspectors who are investigating these said incidents, it needs to be acknowledged that, in a democracy, it is the citizens who are the ultimate inspectors over and above their (police inspector's) work, and which is evident from the letter and spirit of section 2(j)(i) of the RTI Act, 2005, which lays down as follows:

Quote


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

 

Sunil Ahya
Kindly do not worry about the exemptions at the stage of filing a RTI application, as reasoned below:
 
As per section 7(1):
A PIO is supposed to 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
 
(Which means a PIO is supposed to either provide information or deny it under section 8 and 9).
As per section 19(5):
In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the PIO who denied the request.
 
(Which means that if a PIO denies the information then he is required to justify his denial)
And furthermore as per section 6(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.
 
(Which means that an applicant is not required to give reasons for requesting the information)
Therefore given the provisions of section 7(1) read with section 19(5) and further read with section 6(2):
The onus i.e. the burden of proof, for either providing or not providing the information is on the PIO who approves or declines a request for information, and,
 
The onus is not on any RTI applicant to justify or give reasons for having sought an information, irrespective of whether such information is disclosable or exempt under RTI Act.
 
Thus, for the above given reasons, you as a RTI applicant need not worry about exemptions, at the stage of filing a RTI application itself.
 
Kindly go ahead, file a RTI application and seek all the information that you may require, let the PIO decide as to whether the information is disclosable or exempt under RTI Act and reply accordingly, study the PIO's reply and if you are not satisfied with the PIO's response, you are always at the liberty to file a first appeal against a PIO's such a decision, and likewise if you are not satisfied with the decision of your first appeal, then a second appeal before an Information Commission.
 
Also refer to the following links:
Sunil Ahya

Please be aware that the PIO's decision is not the final word in a given matter and that as a RTI Applicant you have an access to three tier hierarchical system by way of first and then second appeal under the RTI Act, as described below:

 

> RTI Application u/s. 6(1) with the PIO,

 

> Not received the information / not satisfied with information supplied by PIO / no decision by PIO,

 

> File a First Appeal u/s. 19(1) with the concerned First Appellate Authority (FAA),

 

> Still not received the information / not satisfied with decision of FAA / no decision by FAA

 

> File a Second Appeal u/s. 19(3) with the concerned Information Commission.

 

> Also please note that RTI Act also provides for filing a Complaint under section 18 with the concerned Information Commission.

Sunil Ahya

In a given Public Authority, there may be several Public Information Officers & First Appellate Authorities,

 And therefore, a PIO, in his response to a RTI Application, should inform a RTI Applicant about the particulars of the correct & concerned First Appellate Authority.

But in case a PIO does not do so, then a RTI Applicant should file a First Appeal, as follows:

 1. Visit the Public Authority's website and try and look for the details of the concerned First Appellate Authority (FAA) under RTI link, especially in section 4 declaration.

 2. If despite reasonable efforts, one is not able to find the details of the correct FAA, then one should file a first appeal, as given below:

 > Attach a cover page on top of the First Appeal:

Quote

 

To,
The Public Information Officer,
Address,
 
Dear Sir,
 
Subject: Forwarding of the enclosed First Appeal to the concerned First Appellate Authority.
Reference: RTI Application Dated: XXXX.
 
With reference to the aforesaid RTI Application, I would like to draw your kind attention towards the provision of
section 7(3)(b) read along with section 7(8)(iii) of the RTI Act
, whereby, while responding to my RTI Application, you as a PIO were supposed to have provided the particulars of the FAA, but please note that you have not done so, and as such, you are hereby kindly requested to forward the enclosed first appeal to the concerned First Appellate Authority.
Thanking you,
Yours truly,
 
 
RTI Appellant.

 

 
Quote

 

> Attach the First Appeal to the above cover page and address it as follows:
To,
The First Appellate Authority,
c/o. The Public Information Officer,
Address.

 

Sunil Ahya

1. Provisions in a law cannot be read in isolation, but all the relevant provisions have to be read along with together, for its harmonious construction:

The basic principle to be followed in law, is that while interpreting any provision, it has be read along with all the other relevant & applicable provisions, for the correct interpretation of the provision in question.

Sec 7 (1) is relevant & applicable while interpreting sec. 7(9) and therefore both these provisions will have to be read along with together for correct interpretation of sec. 7(9) of the Act .

2. Please find quoted below the text of section 7(1) & section 7(9) of the RTI Act, 2005 (emphasis added) :

Quote
Section 7(1) - "Subject to the proviso to sub-section (2) of section 5 or the proviso to sub-section (3) of section 6, the Central Public Information Officer or State Public Information Officer, as the case may be, on receipt of a request undersection 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 forty-eight hours of the receipt of the request."
 
 
1
Quote
Section 7(9) - "An information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question."
 

3. Now, let us read sec. 7(1) along with 7(9) for its correct interpretation:

As per sec. 7(1), a request for information can only be rejected for any of the reasons specified in sec. 8 & 9 of the Act. Therefore it can be reasonably construed from sec. 7(1) that a request for information cannot be rejected under any other provisions of the Act. As such, sec. 7(9) cannot be given a meaning / interpreted in such a way so that it of becomes a ground for rejecting a request for information, in addition to sec. 8 & 9 of the Act.

4. So, what is sec. 7(9) about?

Sec. 7(9) is all about providing a requested information in a particular FORM. Especially, when there may be a choice before a PIO to provide an information in one particular form, from amongst the various other alternate forms available to him.

Following are some probable examples for the purpose of understanding sec. 7(9):

Example - 1

  • An information is requested in a printed hard copy form,
  • The same information is available with a PIO in a soft copy form,
  • The PIO may then decide to provide information in the readily available soft copy form citing sec. 7(9) that if the information is provided in printed hardcopy form it would disproportionately divert the resources of the Public Authority.

Example - 2.

  • A particular digitized form (say 300 dpi / gif / png etc. format) is requested of some very old documents,
  • The information may have been scanned & archived long time back (in say 100 dpi / jpeg format) by a Public Authority.
  • The PIO may then decide to provide the requested information in the "Available Digitized Form", citing sec. 7(9), if the information were to be re-digitized in the requested form then it the would be detrimental to the safety or preservation of the record in question if it .

5. Conclusion:

A PIO cannot quote sec. 7(9) as a ground for rejecting a request for information, stating that no matter in whatever form the information is provided, it will disproportionately divert the resources of the Public Authority. But, in that case, the requested information has to be provided irrespective of the resources factor.

6. Link to a compilation of some useful judgments on the subject of sec. 7(9), by Shri jps50:

 

 

Sunil Ahya

ZONE - I

A – WARD,

134 – E, S.B.S. Marg,

Fort, Mumbai – 400 001.

Tel: (022) - 2266 1353 / 2260 7000

Extn: 7070 / 7022.

 

B – WARD,

121, Ramchandra Bhatt Marg,

Opp. J. J. Hospital,

Mumbai – 400 009.

Tel: (022) - 2378 0133, 23736622, 23794000

 

C – WARD,

76, Shrikant Palekar Marg,

Off Chandanwadi, Marine Lines (E),

Mumbai – 400 002.

Tel: (022) - 22055450, 22014022,

22014000, 23424669

 

D – WARD,

Jobariputra Compound,

Near Shastri Hall,

Mumbai – 400 007.

Tel: (022) - 23861426, 23864000

 

 

E – Ward,

Shaikh Hafizuddin Marg,

Next to Byculla Fire Stn.,

Mumbai – 400 008.

Tel: (022) – 23083695, 23081471,

23014000, 23081470

 

ZONE – II

 

F / South Ward,

Room No. 19, 2nd Floor,

F/South Ward Office Building,

Dr. B. A. Road, Parel,

Mumbai – 400 012.

Tel: (022) – 24134560

 

F / North Ward,

Near Maheswari Udyan,

Bhaudaji Marg, Matunga,

Mumbai – 400 019.

Tel: (022) – 24134560

 

G / South Ward,

Near Deepak Cinema,

N. M. Joshi Marg,

Prabhadevi,

Mumbai – 400 025.

Tel: (022) – 24223741, 24305031, 24224000

 

G / North Ward,

Municipal Office Building,

Harishchandra Yalve Marg,

Dadar (W), Mumbai – 400 008.

Tel: (022) – 24397800

 

ZONE – III

H / East Ward,

Muncipal Office Building,

Plot No 137, TPS 5,

Prabhat Colony, Road No 2,

Santacruz East,

Mumbai – 400055

Tel: (022) – 26114000, 26182217,

26182218, 26182219, 26182839

 

H / West Ward,

Behind Bandra Police Station,

ST Martins Road, Bandra West,

Mumbai – 400 050.

Tel: (022) – 26444000, 26422311, 26432680,

26485399, 26455641, 26422314,

26513506, 26456466, 26418509

 

K / East Ward,

Ganesh Gavatan,

Next To Verma Nagar,

Ramesh More Chowk,

Azad Road, Andheri East,

Mumbai – 400 069.

Tel: (022) – 26847000, 26841924, 26837104,

26840103, 26830103, 26840986,

26834475, 26832006

 

K / West Ward,

K / W Ward Office Building,

2nd Floor, Paliram Path,

Opp. Best Depot, Andheri (W),

Mumbai – 400 058.

Tel: (022) – 26237932, 26239166,

26239131, 26239190, 26239499

 

ZONE – IV

 

P / South Ward,

Opp. City Center Mall,

S. V. Road, Goregaon (W),

Mumbai – 400 104.

Tel: (022) – 28721186, 28722808

 

P / North Ward,

1st Floor, Liberty Garden,

Malad (W),

Mumbai – 400 064.

Tel: (022) – 28826000, 28824269, 28823267,

28823266, 28824625, 28824711

 

R / Central Ward,

Municipal Market Building,

S. V. Road, Borivali (W),

Mumbai – 400 092.

Tel: (022) – 28912396, 28946000,

28931342, 28902343, 28902343

 

R / South Ward,

R/South Ward Office Building,

Mahatma Gandhi Cross Road No.2,

Near S.V.P.Swimming Pool,

Kandivali (West), Mumbai-400 067.

Tel: (022) – 2805 6000, 28054788, 2806 5185

 

R / North Ward,

Below Sangeetkar Sudhi Phadke Flyover Bridge,

Jaywant Sawant Marg,

Dahisar (W), Mumbai – 400 068.

Tel: (022) – 2893 6000

 

ZONE – V

L – Ward,

1st Floor, L. Y. Market Building,

S. G. Barve Marg, Kurla (W),

Mumbai – 400 070.

Tel: (022) – 26505103, 26503104

 

M – Ward,

2nd Floor, Late Sharadbhau Acharya Marg,

Near Natraj Cinema, Chembur,

Mumbai – 400 071.

Tel: (022) – 25284000, 25225000,

25281977, 25281994, 25285669

 

M / East Ward,

Deonar Municipal Colony,

Madhukar Tukaram Kadam Marg,

Govandi West,

Mumbai – 400 043.

Tel: (022) – 25502270

 

ZONE – VI

N – Ward,

1st Floor, Jawahar Road,

Ghatkopar (E),

Mumbai – 400 077.

Tel: (022) – 25013000, 25010161, 25010162,

25010163, 25010164, 25010165,

 

S – Ward,

Near Mangatram Petrol Pump,

L.B.S. Marg, Bhandup (W),

Mumbai – 400 078.

Tel: (022) – 2594 7571.

25954000, 25948588, 25947570,

25947845, 25947573, 25947574,

 

T – Ward,

Lala Devi Dayal Road,

Mulund (W),

Mumbai – 400 080.

Tel: (022) – 2564 5291.

25694000, 25617410,

25645289, 25617264,

Sunil Ahya

Download respective RTI forms valid for the State of Maharashtra, by clicking on the following links:

 
Please Note:
 
The above forms are in Microsoft Word format, with tables inserted in it, so that one can directly fill into this form on the computer itself.
 
 

After having filled the form on your computer:

 
> Take a Print Out,
> Paste a Court fee stamp of:
Rs. 10/- if it is an RTI Application.
Rs. 20/- if it is the First Appeal.
Rs. 20/- if it is the Second Appeal.
 
> Sign on it.
 
> File the original and keep a photocopy (xerox) of it with yourself for future reference.
 

How to file the Original ?

a) Either, by Speed Post,
 
> Track the delivery status on India Post website,
 
> When the status shows delivered take a Print Out & preserve it as a Proof of Delivery.
 
 
b) Or, by a Private Courier Company - With Delivery Acknowledgment (e.g. Vichare Courier):
 
 
You must receive a delivery acknowledgement receipt from the private courier company after a couple of days of mailing. Preserve that delivery acknowledgment receipt as a Proof of Delivery
 
 
Sunil Ahya

  • Drafting queries for seeking information is the most skillful part of drafting a RTI application.

The golden rule for seeking information would be to use the phrase
"Please provide me a certified photocopy of XXXX"
with each of your query seeking information.

(If one intends to question or complain to a Public Authority, then a way forward would be to write everything on an ordinary A4 size paper, submit it to the Public Authority, preserve the acknowledgment, wait for a week and follow it up with a RTI application seeking information on file notings, action taken etc. on your letter dated XXXX.)

 

 

 

  • EXAMPLE:

If one would like to know whether a particular structure is legal or illegal, there are say two ways to draft the query for seeking information on the same:

One Way:
Please inform me whether the structure XXXX is legal or illegal?

(Question / answer format and as such in a way out of the ambit of RTI Act)

 

 

Another Way:
Please provide me with a certified photocopy of the permission granted for structure XXXX.

 

(Information sought in document (material /tangible) form and as such within the ambit of the RTI Act)

 

 

Now suppose if the structure XXXX is illegal, then the PIO will have to respond saying that photocopy of the permission cannot be provided, because no permission has ever been granted for the structure XXXX, which means that the structure is illegal.

 

Hence, both the queries seek the same information but the second one achieves the same purpose while at the same time remaining within the ambit of the RTI Act.

 

 

 

  • I have quoted below some relevant definitions of the RTI Act, 2005 for your immediate reference:

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;

 
Section 2(i) "record" includes—

 

(a) any document, manuscript and file;

(b) any microfilm, microfiche and facsimile copy of a document;

© any reproduction of image or images embodied in such microfilm (whether enlarged or not); and

(d) any other material produced by a computer or any other device;

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;

Sunil Ahya

There are two specific provisions in the RTI Act for dealing with a situation where the information sought is not available with the Public Information Officer (PIO) with whom the RTI application has been filed, but,

 

Situation A - The Information sought is available with another PIO within the Same Public Authority, or,

 

Situation B - The Information sought is available with another PIO of another Public Authority.

Situation A -
Where the
Information sought is
available within the Same Public Authority
(i.e.Information not available with the Public Information Officer with whom the application has been filed with, but is available with another Public Information Officer of the
same
Public Authority):

Section
5
(
4
) read along with section
5
(
5
) has been laid down for such situations:

 

Section
5
(
4
):
A Public Information Officer may seek another Public Information Officer's assistance if the information sought is available with another Public Information Officer of the same Public Authority.

 

Section
5
(
5
):
For the purpose of contravention of any of the provisions of the Act, the Officer whose assistance has been sought shall be treated as the Public Information Officer.

 

In this regard, the Hon'ble Delhi High Court in
The CPIO, Supreme Court of India versus Subhash Chandra Agarwal & Anr. has decided as follows:

 

"It is the duty of the CPIO to obtain the information that is held by or available with the public authority. Each of the sections or department of a public
Authority cannot be treated as a separate or distinct public authority. If any information is available with one section or the department, it shall be deemed to be available with the Public Authority as one single entity CPIO cannot take a view contrary to this"

 

You may download the relevant extract of the aforesaid Delhi High Court's judgment from the following link:

[ATTACH]11184[/ATTACH]

Situation B -
Where the Information sought is
available with
Another Public Authority
(i.e.Information not available with the PIO with whom the application has been filed with, but is available with
another
PIO of
another
Public Authority):

Section 6(3) has been laid down for such situations.

 

Where the information in an application (complete or a part of the application) is available with another Public Authority, then the complete application or such part of the application shall be transferred under sec. 6(3) to that other Public Authority under intimation to the applicant.

(For more details, you may please read the provisions in the Bare Act)
Sunil Ahya

The flow of a RTI application goes like this:

 

I - Flow A:

 

Step 1)
File a RTI application with the Public Information Officer - Section 6(1).

After filing the RTI, if you have:

 

> Not received a reply from PIO at all,

OR

> Received a reply from PIO but not satisfied with the PIO's reply/decision;

 

Step 2)
Then - File a first appeal with the First Appellant Authority - Section 19(1).

After filing a first appeal, if you have still not received the requested information, that is:

 

> Received a Decision from FAA but not satisfied with the FAA's reply/decision;

OR

> Not received a reply / decision from FAA at all.

 

 

Step 3)
Then - File a second appeal with the Information Commission - Section 19(3).

 

OR

II - Flow B:

 

Step 1)
File a RTI application with the Public Information Officer - Section 6(1).

After filing the RTI, if you have:

> Not received a reply from PIO at all,
OR

> Received a reply from PIO but not satisfied with the PIO's reply/decision;

 

 

Step 2)
File a Complaint with the Information Commission - Section 18(1).

 

III - Comparison between Flow A & B:

In Procedure A -
One goes through the First Appeal
level WHEREAS

 

In Procedure B
- One skips the First Appeal
level.

 

 

As far as possible procedure A is preferable to procedure B, because it has been generally experienced that Information Commissions have taken a view that a RTI applicant must go through the First Appeal level and thereby exhaust all the remedies available under the RTI Act before finally approaching an Information Commission.

 

 

IV - Recent Supreme Court Judgment in Chief Information Commr. and Anr v/s. State of Manipur and Anr in CIVIL APPEAL NOs.10787-10788 OF 2011, on Flow A [section 19(1)] v/s. Flow B (section 18(1)]:

Recently there has been a Supreme Court decision on the subject, which lays down, that if an aggrieved person intends to approach an Information Commission, he must do so as follows:

>
For Seeking Information
- Under section 19(3) of RTI Act.

 

 

>
For complaining on RTI matters
- Under section 18(1) of the RTI Act.

 

 

V - Time limit for filing first appeal before First Appellant Authority is as follows:

1) If the Public Information Officer has NOT REPLIED:

After 30 days from the date of receipt of RTI application by the Public Information Officer, upto 60 days from the same.

2) If the Public Information Officer HAS REPLIED:

But one is not satisfied / aggrieved with the Public Information Officer's reply: Within 30 days from the date of receipt of reply by the RTI applicant.

 

 

VI - RTI Act is a time bound one way track:

 

If the Public Information Officer has not replied OR you are not satisfied with the Public Information Officer's reply :-

Please do not go back to the Public Information Officer, but file a First Appeal with the First Appellant Authority.

 

 

Tip:

If the Public Information Officer's reply does not give the details of First Appellate Authority: -

 

Add the following at the bottom of the First Appeal
as postscript (P.S.)
and mail it to the same Public Information Officer
:

 

"P.S.

As per sec. 7(8)(iii) of the RTI Act, 2005 the Public Information Officer should have provided me with the details of the First Appellate Authority but because the Public Information Officer has not done so, it is his responsibility to forward this first appeal to the First Appellate Authority."

 

VI - TIME LIMIT FOR FILING SECOND APPEAL before Central / State Information Commission, as the case may be, is as follows:

 

1)
If the First Appellate Authority (First Appellate Authority) has given his/her decision, and if one is not satisfied / aggrieved with the decision of the First Appellate Authority:

 

90 days from the date of First Appellate Authority 's decision.

 

 

2)
If the First Appellate Authority has not given any decision at all:

 

After
the expiry of 30 day period from the date of receipt of the first appeal by the First Appellate Authority but within 120 days of the same (i.e. 30 + 90 = 120).

 

 

3)
If the First Appellate Authority has given a decision in the favour of a RTI applicant, asking the Public Information Officer to provide information, but the Public Information Officer still does not provide the requested information:

 

Within 90 days from the date of receipt of First Appellate Authority's decision.

 

Please Note:

 

Q: How much time should one wait after a FAA's positive decision whereby he has directed a PIO to provide the information?

 

Ans: It would depend upon a RTI applicant's subjective assessment of a PIO's intention to provide the information or not, despite the FAA's decision to disclose the same to the RTI applicant.

 

But having said that - 15 to 30 days would be a reasonable period to wait after a FAA's positive decision, before filing a second appeal.

 

Success is a struggle and I am sure you will achieve it.

 

 
Sunil Ahya

SEC. 23 OF THE RTI ACT, 2005, EMPHATICALLY STATES – BAR OF JURISDICTION OF COURTS.

THE COURTS STILL ENTERTAIN –

WHAT COULD BE THE REASON..................

 

Index of Relevant Points:

 

Part - I

 

1. The Constitution of India has a Basic Structure.

 

2. Parliament (Legislature) has the power to amend the Constitution.

 

3. But can the Parliament amend the Constitution to the extent of amending the Basic Structure of the Constitution itself.

 

Part - II

 

4. Supreme Court’s position on the subject.

 

5. Case Laws by the Supreme Court.

 

6. Conclusion.

 

7. FINALLY - Can the Basic Structure of the Constitution ever be amended?

 

 

 

Part - I

 

1. The Constitution of India has a Basic Structure:

 

A 13 Judge Constitutional bench formulated under Chief Justice Sikri has defined the Basic Structure of the Constitution of India in detail in Kesavananda Bharti V. State Of Kerela (AIR 1973 SC 1461).

 

One of the features of the Basic Structure of the Constitution is that every aspect of governance will be governed by three branches namely, The Legislature, The Executive & The Judiciary.

 

 

 

2. Parliament (Legislature) has the power to amend the Constitution:

 

One of the three branches of government, (Legislature) Parliament has been conferred under Article 368, the power to amend the Constitution itself.

 

 

3. But can the Parliament amend the Constitution to the extent of amending the Basic Structure of the Constitution itself:

 

So, Can (Legislature) Parliament, which is not the only branch of government (mind you) but one of the three branches of government, make a law which excludes any one of the three branches of the government, from an aspect of governance?

 

For Example, Can Parliament make the following law:

(a) Bar of President from this particular law:
President’s (Executive’s) signature is not required for this particular law to come into effect.

 

OR

 

(b) (Legislature) Bar of Parliament from this particular law:

Henceforth Executive / .... will legislate on this particular subject.

 

OR

 

© Section 23: Bar of Jurisdiction of Courts from this particular law.

 

 

As one can see, in each of the above examples, one of the three branches of the government has been excluded / barred from a particular aspect of governance.

 

REITERATE:

 

So, Can Parliament make Laws which either INDIRECTLY amends the Constitution (for example sec. 23 of the RTI Act, 2005) OR Invoke Article 368 and DIRECTLY amend the Constitution to exclude any one of the three branches of the Government from a particular aspect of governance, thereby violate the Basic Structure of the Constitution, which lays down that there will be three branches of Government for every aspect of governance?

 

 

Part - II

 

Index of Relevant Points:

 

4. Supreme Court’s position on the subject.

 

5. Case Laws by the Supreme Court.

 

6. Conclusion.

 

7. FINALLY - Can the Basic Structure of the Constitution ever be amended?

 

 

4. Supreme Court’s position on the subject:

 

Every law MADE is subject to Judicial Review:

 

Every law made by the Central (Parliament) or State Legislature is subject to Judicial Review, and if the law violates the basic structure of the Constitution, it will be set aside as null and void by the Judiciary under the Doctrine of Judicial Review, and thus the Supreme Court is the final arbiter and interpreter of all constitutional amendments

 

.

5. Some CASE LAWS on the subject:

 

Kesavananda Bharti V. State Of Kerela (AIR 1973 SC 1461)

 

A 13 Judge Constitutional bench was formulated under Chief Justice Sikri where the majority held that there are inherent limitations on the amending power of the Parliament and Article 368 does not confer power so as to destroy the ‘Basic Structure’ of the Constitution.

 

Minerva Mills V. Union Of India (AIR 1980 SC 1789):

 

Judiciary Strikes Down the Law Made By the Parliament.

 

Supreme Court struck down clauses 368 (4) & (5) of the Constitution of India inserted by 42nd amendment to the Constitution by the Parliament - Justification for striking down is that the clauses destroyed the basic structure of Constitution.

 

 

L. Chandra Kumar V. Union Of India (AIR 1997 SC 1125):

 

Judiciary Strikes Down the Law Made By the Parliament.(similar to the enactment of the provision of sec. 23 of the RTI Act)

 

The Supreme Court struck down clause 2(d) of Article 323A and clause 3(d) of Article 323B as they excluded the jurisdiction of High court under Article 226 and 227 as well as jurisdiction of Supreme Court under Article 32 and as such they abrogate the power of Judicial Review which is a basic feature of the Constitution.

 

 

6. CONCLUSION:

 

Every Law MADE as well as Every Law IMPLEMENTED is subject to Judicial Review.

 

If any law made by the Parliament violates the Basic Structure of the Constitution of India, then Judiciary (Courts) will strike down that law under the internationally well established Doctrine of Judicial Review.

 

One of the feature of the Basic Structure of the Constitution of India is that there will be three branches of government (Legislature, Executive & Judiciary) for every aspect of governance. Section 23 of the RTI Act, 2005 results into exclusion of one of the three branches of the government, it thus violates the Basic Structure of the Constitution of India and hence invalid.

 

 

7. FINALLY:

 

The big Question is: Can the Basic Structure of the Constitution of India ever be amended?

 

Answer: YES very much, the Basic Structure of the Constitution can definitely be amended, but only with the CONCURRENCE of all the three branches of the Government.

Sunil Ahya

• PRIVATE CO-OPERATIVE HOUSING SOCIETIES ARE COVERED UNDER WHICH SECTION OF THE RTI ACT:

 

Co-operative Societies are covered under section 2 (f) of the RTI Act, 2005.

 

Sec. 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;

 

• HOW SECTION 2 (F) APPLIES TO A PRIVATE CO-OPERATIVE HOUSING SOCIETY:

 

As per sec. 2(f) of the act an information which can be accessed by a Public Authority from a Private Body can be provided under the RTI Act. In the context of a Co-operative Housing Society Limited, Private Body is a Co-operative Housing Society and Public Authority is Registrar of Co-operative Societies.

 

• PIO & FAA OF REGISTRAR OF CO-OPERATIVE SOCIETIES:

 

1) Public Information Officer (PIO) - Deputy Registrar.

 

2) First Appellant Authority (FAA) - District Deputy Registrar.

• FLOW OF A RTI APPLICATION FILED FOR SEEKING INFORMATION FROM A PRIVATE CO-OPERATIVE HOUSING SOCIETY LIMITED:

 

This is how it works if one would like to seek information from a Co-operative Housing Society Ltd:

 

1) One can file a RTI application with the PIO i.e. Deputy Registrar Co-operative Societies, where the particular Society has been registered.

 

2) Deputy Registrar will forward this application to the Chairman/Secretary of the Co-operative Society.

 

3) Chairman/Secretary of the Society will then provide the requested information to the Deputy Registrar.

 

4) Finally Deputy Registrar will provide the applicant with the requested information.

 

Please Note: At present some Deputy Registrars orders/directs the Chairman/Secretary of the Society to provide the information directly to the applicant, thereby skipping the 2nd, 3rd and 4rth step mentioned above, and so the Chairman/Secretary of the society will then directly provide you with the requested information under the directions/order of the Deputy Registrar.

Sunil Ahya

The common misconception that has taken root presently is that only entities and organizations which are substantially aided or funded by the Government are covered under the RTI Act.

 

But the fact is that Private Entities are covered under the RTI Act irrespective of whether they are substantially aided or funded by the Government.

 

1) Private Entities are not covered under sec 2(a) of the Act:

 

Sec 2(a) "appropriate Government" means in relation to a public authority which is established, constituted, owned, controlled or substantially financed by funds provided directly or indirectly—

(i) by the Central Government or the Union territory administration, the Central Government;

(ii) by the State Government, the State Government;

 

But Private Entities are covered under section 2(f) of the Act:

 

Sec. 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;

Also section 8 (j) is relevant here:

Section 8 (j): Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.

 

To Summarize the argument / point of view:

 

1) Private Entities are not covered under sec. 2 (a) of the act.

2) Private Entities are covered under sec. 2 (f) of the act.

3) With reference to sec 8 (j) of the act one can resonably infer and conclude: Provided that the information which cannot be denied to the Public Authority with which the Private Entity is registered shall not be denied to any person.

 

Hence Private Entities are covered under the RTI Act through the Public Authority with which they are registered e.g. For Co-operative Society : Deputy Registrar of Co-op. Sty's, for Banks - RBI etc, you will need to find out with which Public Authority the Private Entity has registered themselves.

 

Please file your RTI applications to the Public Authorities, who in turn should forward your application/ queries to the concerned Private Entity and get the information for you.

 

This virtually brings every one under the ambit of RTI Act.

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